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SC gives BCI till Jan 2017 to complete verification drive but many unanswered questions remain

How many 'fake' lawyers (like Mike Ross) has the verification process actually found?
How many 'fake' lawyers (like Mike Ross) has the verification process actually found?

A Supreme Court bench of justices Pinaki Chandra Ghose and Ashok Bhushan, last week, on 20 October, extended the deadline for submission of applications for the verification process of lawyers to 30 November 2016, making it clear that it would sanction no further delays.

It also extended the deadline for the completion of the verification process by the state bar councils to 31 January 2017.

Ironically, these orders were passed in a case in which the petitioners had challenged the Certificate and Place of Practice (Verification) Rules, 2015, issued by Bar Council of India and notified on 13 January last year.

The lead petitioner in this case is Ajayinder Sangwan, whose petition was transferred from the Delhi high court to the Supreme Court last year. Two other petitioners against the BCI are AP Ranganatha and another transfer case.

But it is the writ petition filed by the lone fighter, KR Chitra, advocate-on-record in the Supreme Court, which hogged all the limelight during the hearing.

Chitra’s vociferous intervention, questioning the linkage between the elections to the bar councils and the verification process, made a lot of sense, although it failed to convince the bench.

The story so far

While hearing the case on 10 May 2016, the court observed:

The BCI has taken steps to cause an enquiry and to find out fake lawyers out of its members and/or persons who are not even members of the Bar Councils and/or members of any Bar Association of the country in accordance with the provisions of the Advocates Act, 1961 and the Rules framed thereunder and has sought reply from the concerned State Bar Councils in this regard.

The court on that day directed all state bar councils to take necessary steps and to conclude all proceedings by 30 June 2016 and to send a reply to the BCI The court said that the BCI, after receiving all replies from the state bar councils, should file a status report in the matter as to what steps it has taken in this regard before the next date of hearing.

On 30 June, the court granted further time of three months to the BCI to complete the process and file a status report. The court agreed to hear the challenge with regard to the validity of the impugned provisions of the Certificate and Place of Practice (Verification) Rules, 2015 in the meantime.

On 29 July, the court observed that 30 September should be taken as the final date for taking all steps by the bar councils of all states to complete the process as ordered.

The court, on that day, held:

We are making it very clear that if it is not done by that date, the pendency of this matter before this Court would not stand in the way to hold elections, where it is due or where the office bearers, though their term is over, are continuing in office and to be specific, steps in this regard, to hold such election would then have to be taken.

On 27 September 2016, BCI chairman Manan Kumar Mishra submitted to the court that the rigour of some provisions of the Rules may be relaxed for now, to facilitate early state bar council elections, which, as we had reported, are overdue in more than 10 state bar councils, in some cases by nearly two years.

The court then asked the parties to evolve a workable solution without prejudice to their rival stands, for the benefit of the legal fraternity as a whole.

The court directed the BCI to file a chart giving its suggestions with the court before the next date of hearing, after serving a copy to the other side.

On 4 October, when the court heard the case, the 30 September deadline was ignored, as impractical, and it passed the following order:

Let consolidated guidelines be prepared by taking into consideration the suggestions given Debal Kumar Banerji, (senior counsel for the petitioner) as well as the Rules as working norms for exploring the feasibility of elections pending adjudication of the challenge to the Rules.

And so the deadline was extended, essentially to allow for the preparation of guidelines.

On 19 October, the court took on record a copy of the chart with the BCI’s suggestions, submitted by Mishra.

So, what now?

Put in this context, the fresh deadlines fixed by the bench on 20 October, make one wonder whether they would be complied with.

There is also considerable suspense over the guidelines agreed to by the stakeholders, and the BCI’s suggestions, as outlined in Mishra’s chart, which seem to have convinced the bench about the desirability of extending the deadline for verification.

While the transfer petitioners were represented by senior advocates, Gourab Banerji, and Shyam Divan, KK Venugopal argued on behalf of the BCI

And the elections? Chitra challenges BCI’s account

Chitra appeared as a petitioner-in-person, and made a dramatic intervention. According to her, the verification process is a regular affair and not a one time exercise. She is very clear that there should be no connection between the verification process and the holding of elections.

According to Chitra, the BCI notified the Verification Rules last year without any application of mind with the sole purpose to delay the conduct of election to the state bar councils.

State bar councils whose terms have expired include Delhi, Assam, Goa, Rajasthan, Uttarakhand, Bihar, Maharashtra and West Bengal.

In many state bar councils, the terms of the special committees constituted by the BCI to conduct elections have also expired, without the electoral rolls of advocates being prepared or updated.

With the absence of elected bodies of state bar councils, the performance and functions entrusted to state bar councils under section 6 of Advocates Act stand paralysed, and this seriously affects the welfare and interest of advocates, and poor litigants, Chitra says in her petition.

She has also claimed that the Verification Rules 2015, notified by the BCI, impose unreasonable restrictions on the right of advocates to carry on their legal practice.

But should fake lawyers not be weeded out, before the election process is put in motion?

And is the court not correct in desiring that the verification process initiated by the BCI be given an opportunity to be completed, before the electoral process kicks in?

The allegation amongst some stakeholders is that the office-bearers of the state bar councils, in their eagerness to cultivate vote banks, have encouraged enrolment of advocates without verification, and that this has led to debasement of the profession.

Chitra suggests, however, that the verification process should be applied to future enrolment, and not to the advocates already enrolled, which would end up harassing genuine lawyers.

The Verification Rules already exempt senior advocates designated under Section 16 of the Advocates Act, and Advocates-on-Record of the Supreme Court from completing the verification form.

They are simply required to send two passport size photographs with their names and current address to the concerned bar council, through their respective associations, so that their names can be included in state bar councils’ voters lists.

Chitra also drew attention to Section 49 of the Advocates Act, under which the BCI does not have the power to make rules for suspending and cancelling the certificate of enrolment.

According to her, by framing the rules of verification of certificates, the BCI and all state bar councils are taking advantage of their own historical wrongs of omitting to verify and satisfy the genuineness and truthfulness of the certificates and degrees of the applicants before granting them enrolment as advocates.

Chitra also claims that it is impossible to complete the verification before the deadline imposed by the Supreme Court. The Verification Rules were notified by the BCI in January last year, so why has the BCI not found even 10 fake lawyers or non-practising advocates so far, she asks.

With the SC scheduled to hear the case only on 2 February of next year, 2017 is likely to prove whether Chitra stands vindicated in her concerns on why the challenges to the validity of the Verification Rules should be heard first, before the court draws a road-map for completing the verification process.

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