The Supreme Court on Wednesday stayed the new Bar Council of India’s (BCI) Certificate and Place of Practice (Verification) Rules 2015 that it had passed in January 2015, reported LiveLaw.
A Supreme Court bench of justices Pinaki Chandra Ghose and RK Agrawal, while hearing a transfer petition of several high court challenges of the controversial rules by the Bar Council of India (BCI) stayed the rules with the following order:
Issue notice. Dasti service, in addition, is permitted. In the meantime, no further steps be taken in the matters which are pending in the High Courts.
LiveLaw had reported that the Kerala high court had stayed operation of the rules in June.
Apparently relying on early responses to the mandatory registration of all lawyers, which has to be renewed every five years, the BCI chairman Manan Kumar Mishra had said that a third of India’s lawyers may be “fake".
However, in the BCI later told the law ministry that there was no way of knowing how many lawyers were not actually lawyers until the verification exercise was complete.
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Stupid LiveLaw. Kian please don't copy from there. And please don't censor this.
But you did not answer the question asked above. Where is the stay order?
"Lawctopus only 'advertises' internships and jobs.
That sounds a bit like a stay since the Kerala HC issued a stay, no?
What's the rule of construction to be followed in stays?
I think overall there has been a decline in online legal journalism. This probably has to do with the fact that online journalism is a low-profit business and owners do not have the incentive to cary out serious field journalism. Lawctopus has given up field journalism entirely and relies on ad revenues by reporting job vacancies. LI and Livelaw have cut down on field journalism and shifted to reproducing press releases. As for Bar & Bench they just have 2 or 3 boring articles and charge noney for it as they do not get enough ads. This is very sad. Abroad there is proper field journalism on legal websites.
" .......in the .........meantime, no further steps..........in matters pending in High Courts"
The only matter pending in High Court is challenge to vires of (rotten) Practice Rules.
What's amusing is the fact that all the petitions in the various HCs against these Rules have been on less important or trivial grounds. None of these petitions raise the issue of whether 'Non-litigious Practise' is included within the meaning and ambit of 'Practise of Law'.
In 'Lawyers Collective vs. Bar Council of India', Hon'ble Bombay HC stated that 'Practise of Law' includes both 'Litigious' & 'Non-litigious' Practise while interpreting the phrase 'Practise of Law' in the relevant provisions of the Advocates Act 1961.
The 2015 BCI Rules do not specify as to what exactly is meant by the phrase 'Practise of Law' but indicate subtly that it does not include 'Non-litigious lawyers'. This is in contravention to the HC's order.
The various petitioners filing against the said BCI Rules of 2015 need to bring up this most important issue in tackling the unilateral and arbitrary rules made by the BCI.
Plus, advocates have the right to set up companies and be the owner thereof as long as they are not in a position of an executive nature. The same goes for partnership firms not related to legal work where advocates can be sleeping partners. An Advocate can even inherit a business and enjoy the profits but not participate in its management. All in all Advocates have the right to be the owner of any business organisation and enjoy the profits thereof, as long as their positions in the organisation are not of an executive or manegerial nature. This is provided by the BCI itself under its Rules for "Standards of Professional Conduct and Etiquette"!
Thus, I ask that either the BCI clear the ambiguity on this issue regarding the meaning of 'Practise of Law' and consequently the meaning of 'Non-practising Advocates' or the various petitioners raise the same in their petitions filled against the rules.
In my opinion the rules of 2015 are a farce since the consequences of these rules are disastrous and out of touch with modern realities.
to:
date: Sat, Apr 16, 2016 at 7:56 AM
subject: Regarding BCI's 'Certificate and Place of Practice (Verification) Rules, 2015'
Dear Sir/Madam,
Your Rules titled the 'Certificate and Place of Practice (Verification) Rules, 2015' are:-
1. Not legal on certain issues;
2. Not practical and realistic;
3. Out of touch with modern realities of the legal profession;
4. Capable of being abused by corrupt officials or members of the various Bar Councils and Bar Associations;
5. Ambiguous;
6. Against the Advocates Act 1961; &
7. Restrictive of the freedom of lawyers and right to practice.
First and foremost please define as to what you mean by 'practice of law'. Does it include 'non-litigious work' along with 'litigious work' as given by the Bombay High Court in the case 'Lawyers Collective vs. Bar Council of India'? Or do you simply mean 'litigious work'? I sincerely hope that the BCI is in line with the Hon'ble High Court's decision in the aforementioned case. It is a reality in modern times and in various developed nations that 'non-litigious work' is part and parcel of every lawyer's profession. An advocate does not only appear in Court cases but also provides legal advise, consultations, drafting services, etc to his clients. These are all part of the profession and practise of law. This includes retainership contracts with various companies, public or private. Thus the BCI must give clarity to the phrase 'practice of law' to include 'non-litigious work'.
Also, the term 'Non-practicing Advocate' needs clarification. As per the said rules of 2015, the BCI is indicating that only litigious work is considered to be the practice of an advocate. It excludes an advocate doing some business. But your very own Rules on the 'Standards of Professional Conduct & Etiquette' say and specifically mean that an Advocate can set up and/or be the owner of any business organisation (company or partnership) and enjoy the profits thereof as long as he/she is not in a position of executive or managerial nature in the said business organisation. Thus, the meaning of 'non-practicing advocate' as provided in your 2015 rules is limited and restrictive and contrary to your already established rules on Advocate's right to other employments. Please clarify this point. And if the rules of 2015 are against the rules previously made by the BCI then please remedy the 2015 rules. It is unconstitutional to restrict an Advocate's freedom in this manner. Ge must have the right to do business as long as his priority is the practice of law and he is not in a position of executive or managerial nature in the said business.
Renewal of Certificate of Practice every 5 years is a real hassle to any advocate. Confirmation by officials of the State Bar Councils or any Bar Association for verification of the Certificate of Practice and its renewal is a process fully capable of being abused by corrupt officials of the various Bar Councils and Associations. Please be realistic. Corruption is a reality in India. This holds true even for the State Bar Councils and Bar Association officials no matter how much you might wish to deny it. For example, if a lawyer wishes to renew his Certificate of Practice and approaches the relevant official of the Bar Council or association, that very official might extort him for money to confirm his renewal. If the advocate doesn't pay the bribe to the said official his Certificate of Practice may very likely not get renewed and he will languish without getting to practice law which is his right. Or the verification or renewal process may be intentionally dragged on for long periods to harass the advocate. These rules give too much power to the Bar Councils and Associations thereby infringing on the fundamental rights of all advocates.
Please do read the various articles published on this issue. The vast majority, if not all, of the articles berate the BCI for making such inefficient, illegal and inept rules. Please be reminded of the fact that your rules of 2015 titled 'Certificate and Place of Practice (Verification) Rules, 2015' are illegal, unconstitutional and arbitrary on various counts. These rules will not survive public scrutiny no matter how cleverly you may have drafted it.
Repeal the same or modify it as per the suggestions I and many lawyers and interested people have made or see the same get quashed in the Supreme Court and face humiliation.
Thank You.
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