Supreme Court advocate Nipun Saxena argues for a young bar and why the Bar Council of India (BCI) should not curtail the practice of young lawyers any further.

“Then said David to the Philistine (Goliath), Thou comest to me with a sword, and with a spear, and with a shield: but I come to thee in the name of the LORD of hosts, the God of the armies of Israel, whom thou hast defied.
And David put his hand in his bag, and took thence a stone, and slang [it], and smote the Philistine in his forehead, that the stone sunk into his forehead; and he fell upon his face to the earth.”

1 Samuel 17:45:49

The story dates back to the time when India was undivided, in a house at Shikarpur in the province of Sindh, where a boy aged 13 had completed his matriculation, and was all set to join college.

At that time the minimum age of joining the bar was 18 years. But this boy, who was merely 17 and had completed his course was all set and prepared to argue his first ever matter in a court of law, defending his stance and convincing the Court of his competence, which lead to a special resolution passed by the bar, allowing the young boy to enrol as an advocate, whom the world today knows as Ram Jethmalani.

Many years have passed but the issue of competence still hangs in a delicate balance, especially in light of the new regulations, which the Bar Council of India proposes to pass, in an earnest attempt to regulate the conduct and practice of advocates.

[See Legally India report for details of the regulations]

Not all bad

The notification of some provisions of the Bar Council of India Certificate of Practice and Renewal Rules, 2014 (in short, the BCI Rules) has met stiff resistance from lawyers who have recently enrolled the bar, but not all is bad.

The Bar Council under its statutory mandate has also made an earnest attempt with the rules to ‘weed out’ those lawyers who have discontinued their practice after they have been enrolled but continue to exist on the roll of advocates. The rules also introduce a requirement to renew the practising certificate every five years.

These steps are immensely important in ensuring that the quality of lawyers that are practicing before the courts of law is not jeopardised, or that the various schemes for the welfare of the advocates, and the expenses incurred by bar councils in implementing them, is to be only retained by those who are advocates in the strict sense of the term. This also ensures that the quality of ‘practising’ advocates is retained, and those who are pursuing auxiliary career choices are struck off from the roll prepared by the bar.

However, on closer perusal of the rules there seems to be more than what meets the eye, particularly the infamous Rule 7, which is now also subject of litigation before the Hon'ble Madras High Court.

Youth controversy

The main controversy concerns the new changes proposed by Rule 7 of Chapter III of the BCI Rules:

7. Conditions for practicing law in different Courts of law:

7.1 An advocate, enrolled on the Roll of advocates after the enforcement of these Rules, after having obtained/renewed Certificate of Practice, shall be entitled to practice law only before such Courts of Law as are equivalent to Sessions Judge or District Judge and such other Courts in specific field/s of law that are exercising original jurisdiction in the matters covered by such fields of law and all other Courts which are subordinate to them.

7.2 An advocate, enrolled on the Roll of advocates after the enforcement of these Rules, after having practiced law before Courts, Tribunals etc. mentioned in Rule 7.1 for a period of not less than two (2) years, shall be entitled to practice law before a High Court and such other Courts in specific fields of law that are exercising appellate or revisional jurisdiction in the matters covered by such fields of law and all other Courts which are subordinate to them.

7.3 An advocate enrolled on the Roll of advocates after the enforcement of these Rules, after having practiced law before Courts of Law mentioned in Rule 7.2 for a period of not less than three (3) years shall be entitled to practice law before the Supreme Court of India subject to such other terms and conditions as may be in force In the Supreme Court of India.

In essence these rules imply that those who have practiced for a minimum of two years in the original side of trial courts, in addition to such other courts that continue to exercise original jurisdiction shall only be eligible to appear and practice before a High Court and such other Courts or forums which exercise appellate or revisional jurisdiction.

For those who wish to appear and argue in the Supreme Court of India, Rule 7.3 states that a minimum of three years of practice in a high court or other appellate or revisional forum is required as an eligibility criterion.

Doomsday is not quite here yet…

What some people have failed to notice is that these rules have not been notified as yet. On a closer perusal of Rule No 3 of Chapter I under the heading “Date of Commencement”, all other Rules except Rule 7 of Chapter III will only come into effect from the date of notification by the Bar Council of India. Another crucial point which the people have failed to notice is that these rules have to further be placed before the State Bar Councils before they become operative.

Unless a rule becomes notified, it is not operative, and does not carry with it the force of law, and unless it becomes operative, it cannot be challenged.

For a rule to be challenged it has to become operative through a notification. For now, young lawyers therefore have little need to fret, for the rule does not yet have force of the law.

Nevertheless, that does not derail criticism of the new rule.

Discriminatory regulation?

Under Section 29 of the Advocates Act, 1961, lawyers are the only recognised class of persons who are entitled to practice law. Section 30 further creates a statutory right of Advocates to practice in all Courts including the Supreme Court of India.

The conditions of practice, as well as the forums in which such practice can be carried out, can be regulated by the Bar Council of India. However, that has to be in conformity with and in accordance with the Statutory mandate provided for under the Advocates Act 1961 as well as the Constitutional mandate, particularly the “freedom of trade, business, occupation and profession” jurisprudence.

The proposed scheme envisaged is therefore palpably discriminatory, in so far as it attempts to impose conditions on young advocates who have just joined the Bar. The Object and Reasons, further brings out the same in unequivocal terms:

There is also an urgent need for laying down some conditions for practicing law in different Courts so as to give due weightage and credence to experience. Before an advocate could practice law in higher Courts, there is need that he is exposed to real court experience in lower Courts/trial Courts. This will help in integrating the whole judicial system from the perspective of the Bar.

Experience points <> skill points

Law is undoubtedly a profession where experience plays a major role.

However, years of experience is not the sole determining factor on the basis of which a segregation could be carried out. At the heart of this argument is the tacit assumption that the competence of a lawyer is tantamount to the years of experience which the lawyer has in the bar.

Competence is, in my humble opinion, not necessarily a result of one’s experience and to this extent the Bar Council has gravely erred in compartmentalising the eligibility criterion of practice, with the forum where one should ideally practice.

Competence comes from a variety of other skill sets, which includes and is not limited to one’s understanding of law, the application of law, and the natural ability to make out a case before the judge.

Experience is therefore one factor, but not the only factor, in determining one’s calibre or standing. This is perhaps the reason why some senior counsel are also designated at a young age.

On the other hand, there are also those lawyers who have been at the bar for 25 years, but still can’t tell the difference between a counter affidavit and a rejoinder.

The Bar Council has also erred in assuming that the “real court experience” only comes from experience gathered in the lower courts or trial courts, though bar room arguments about the real nature of practice do abound.

There are several very practical difficulties with the new rules too.

Tribunals? No thanks

If a newly enrolled advocate wishes to practice only before an appellate tribunal, which may or may not exercise original jurisdiction, he should not be precluded from doing so, just because the forum which he is practicing in is not equivalent to a civil court.

Nor should it disentitle him from being an advocate.

The eternal AoR trap

And then, in order to be able to practice as an Advocate on Record before the Supreme Court of India, an advocate needs to have a standing of five years, so as to be eligible to take the examinations.

If the regulation, as it stands, comes into operation, then the obvious problem is that the Supreme Court will forever become a distant dream from the reach of the newly enrolled advocates.

By virtue of Rule 7.3, young advocates would  have to wait for a period of five years in order to be eligible to practice before the Supreme Court, and then in order to take the AOR examination, and to improve one’s understanding about the practice and procedure of the Supreme Court, the same will again take a considerable time, because earlier he / she was precluded from appearing in court.

One small upside is that this rule will only have prospective application, applying to candidates who enroll after the date on which it becomes effective.

There is also speculation amongst lawyers that the BCI has merely passed the buck to the state bar councils, who will never approve of these regulations.

Short sighted?

However there is also another school of thought which believes that these rules have only been framed to preclude and prevent newbies from joining the bar, which has seen a drastic shift in preferences of peoples’ career choices, as can be seen in the countless young lawyers, following senior counsel, preparing his briefs, seeking adjournments, and even arguing in certain matters.

With many new advocates drafting and preparing almost two special leave petitions (SLPs) per day, their efficiency and quality of work at the appellate level has been appreciated by seniors and judges alike, even if they have not practiced in the trial courts.

Most of the senior counsel today rely on the notes prepared by their juniors rather than their briefing counsels.

Be that as it may, even the Supreme Court of India, despite restrictions imposed under Order IV Rule 1A of the Supreme Court Rules as amended in 2013, continues to promote junior counsel, who have been otherwise precluded from arguing. Relying on the second proviso of the Rule enables the court to give a chance to junior counsel to effectively plead and argue matters, upon instructions by an AOR.

These junior counsel therefore are living and almost daily proof that competence is not synonymous with experience.

The Right to Practice

The right to practice at one's forum of choice is implicit within the Right to Freedom of Profession under Article 19.

The proposed rules are also in contravention of the explicit statutory provision under Section 30, which guarantees the advocates to practice "as a matter of their Right", including the Supreme Court, and therefore the Rules which are subordinate legislation cannot override the Parent Act.

The Bar Council of India’s derivative rule making powers can not be in contravention of the same Act that has constituted the BCI under Section 4.

It will therefore be very difficult for the proposed rules to stand the test of The Golden Triangle upon which the constitutionality of the rule is likely to be challenged.

And although the petition currently before the Madras High Court may give an opportunity for a court to determine these issues, because the rules are yet not in force it may afford the BCI a convenient exit route.

Be that as it may, I will definitely be watching in the coming days.

Nipun Saxena is an advocate of the Supreme Court of India