This article is written by Priyanshi Soni, a student of Symbiosis Law School, Noida. This article seeks to highlight the legal loophole in Chief Minister’s Advocates’ Welfare Scheme which was tackled by the Delhi High Court in a petition which was brought before it.
Table of Contents
Introduction
In a laudable move by the state government of Delhi, a scheme was rolled out to give maximum benefits to the advocates of the state. The government made a provision of Rs. 50 crores budget for lawyers. The registration process is also rather very simple. There is a lot of competition and hardships for advocates nowadays and this necessitates the need for protection and benefits. Thus, the CM Advocates’ Welfare Scheme brings up benefits to the advocates and their family members. But does this scheme have a rational nexus with the objective that it has to achieve? We will look into this aspect of the scheme, for which a petition was filed in Delhi High Court.
Chief Minister’s Advocates’ Welfare Scheme
CM Advocates’ Welfare Scheme was announced recently by the Chief Minister of Delhi, Mr. Arvind Kejriwal. This scheme came up after the formation of a Committee in December 2019 by the Chief Minister, headed by the President of the Supreme Court Bar Association Mr. Rakesh Khanna. The Committee had 13 members who were advocates and were given the responsibility to formulate schemes that will benefit the advocates of Delhi. The Committee recommended that those who are enrolled with the Bar Council of Delhi, subject to cross-checking by Bar Associations they are associated with, which includes the Supreme Court Bar Association, The Delhi High Court Bar Association, NCLAT, NCLT, etc., and those who have voter ID cards i.e, should be enrolled in the voter’s list and for that, it requires them to be a resident of Delhi, should only be eligible to take the benefits of this scheme. This was a controversial clause.
Along with the CM Advocates’ Welfare Scheme, the Committee also rolled out Rs. 50 Crore in the budget in honor of the advocates for their great contribution towards society in general. This wonderful step by the state government received widespread admiration.
The Committee gave a compiled set of 4 recommendations finally to the Chief Minister which included – Group (Term) Insurance, Group Medi – Claim, e-library, and creche facilities, which we will now see in detail.
Key points
- The government of Delhi came up with the CM Advocate’s Welfare Scheme to benefit the advocates of the state who are registered with the Bar Council of Delhi and have voter ID cards in Delhi.
- The registration will be done through the website of the Department of Law, Justice, and Legislative Affairs. It is fairly simple.
- The scheme violates the rule of equality before the law and in this regard, a petition was filed challenging the discriminatory clause, it was then decided in the favour of the petition, and benefits are now extended.
Group (Term) Insurance
As per the proposal by the Committee in cooperation with the Life Insurance Corporation of India (LIC), every practicing lawyer in Delhi will get a life term insurance of Rs.10,00,000. The Law Ministry of National Capital territory will be the nodal agency for the same and will have authority to negotiate the premium in the future as the LIC rates are very competitive.
As per the data provided by BCD, there are 40, 115 advocates who will benefit from this scheme.
Group Medi-Claim
The Committee recommended providing medical coverage to all Delhi-based lawyers and their families through a group medical plan provided by any insurance company. The Committee has suggested considering the offer of a group medi claim policy of Rs. 8,500 adding GST for the advocate, spouse, and 2 children up to the age of 25 years.
E-Library
The Committee in the said scheme has also recommended making facilities for e-library in 6 district courts of Delhi namely Tis Hazari Courts Complex, Karkardooma Court Complex, Patiala House Court Complex, Rohini Court Complex, Dwarka Courts Complex, and Saket Court Complex. This was suggested on the backdrop of poor working facilities in libraries there. It pointed out that lawyers require extensive legal research to be done and thus accessing all the case laws, sections and other legal material should be hassle-free. The Committee thus proposed setting up 10 computers each in these district courts with e-journals and all the legal databases such as SCC Online, Manupatra, All India Reporter, and others, with printers.
Creche Facility
There is a provision by the Committee to provide a creche facility for free in all 6 districts for all the female advocates and female personnel employed by lawyers. It is recommended that LIC Corporate Social Responsibility (CSR) will be used to administer these creches and if they are unable to do so, then the government will do this with their expenses, like the Supreme Court of India’s.
The registration process for the scheme
All advocates who are registered with the Bar Council of Delhi and are enrolled in the voter’s list of Delhi i.e. who are residents of Delhi are eligible for registration under this scheme. Registration was started from 21st March to 31st March 2020.
Steps to be followed
- Open the official website of the Department of Law, Justice, and Legislative Affairs.
- Click on the link which asks you to fill the form and then the form will be visible.
- Fill in the required details asked in the form.
- A verification preview will come up for the information filled in.
- Then an OTP will be received after submitting the form and then after submitting the OTP, registration will be done.
- Thereafter, the advocates will receive a unique ID number on the registered numbers/mail IDs.
The petition before the Delhi High Court
Legal practice in Delhi and NCR region/neighbouring areas
The primary issue raised in the petition was regarding legal practice in the Bar Council of Delhi. The scheme mentioned the benefits for advocates practicing under the BCD but the clause restricting the benefits to the advocates practicing in Delhi and having voter IDs of Delhi raised a big legal question. Many lawyers resided in NCR/ neighbouring areas due to many personal reasons but even they are enrolled with BCD and thus, should be included in the scheme’s benefits. It is not legally correct to restrict the benefits of a scheme or sub-classify the scheme into a category among equals and the same was held by the court as well.
Place of residence v. Place of practice – Whether the scheme can be restricted to advocates who have voter ID cards in Delhi
Place of residence is not given importance in any of the provisions of the Bar Council of India Certificate and Place of Practice (Verification) Rules (2015), the Advocates Act 1961, and the Bar Council of Delhi Rules, 1963, as observed by the Court. It is the place of practice that is considered over the residence.
The Court further added that not every advocate can afford to live in Delhi and so they reside in NCR/Other areas including Noida, Gurugram, Gaziabad, etc., and commute to Delhi regularly to work. Even they contribute to the revenue of the Delhi government by practicing under the Delhi Bar Council. Thus, even they should be entitled to receive the benefits of this scheme. Otherwise, the objective of the scheme itself remains unfulfilled. It is not correct to restrict the scheme to only those who have voter ID cards in Delhi.
Can the Court interfere in the policy-making of the government
As per the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 (GNCTD), if the government wants to restrict any scheme to a subcategory of people, courts cannot interfere in the same. To this, the High Court held that policy decisions by the government are open to judicial review if found arbitrary and violative of the rights of the people and thus there is no hard and fast rule for the same.
Whether the sub-classification of advocates registered with the BCD would be permissible in law
Further, it was added that the sub-classification is arbitrary in this case and thus needs to be quashed. The Court also observed that GNCTD cannot impose such a classification based on place of residence on BCD advocates and not on its employees. The test of classification is done by fulfilling 2 conditions i.e., intelligible differentia and rational nexus and the objective behind. The objective of the government was the maximum benefit of the advocates of the state and the differentiation done based on place of residence for the same group of people is preferential and thus violates the rule of law and equality principle.
Whether registration ought to be reopened to enable advocates who missed the initial deadline
It was also contended that the deadlines should be reopened so as to enable the advocates who missed the initial deadline to obtain the benefits of the scheme. The Court then asked to implement a new scheme based on the present judgment by 30th September 2021.
Petition by BCD in Delhi High Court seeking grant Of medical & term insurance
In 2020, during Covid-19, the BCD moved to Delhi High Court filing a petition seeking grant of medical services and term insurance to the advocates registered under the scheme. The court issued a notice granting the same within a 15 days period. The Council has submitted that over a month has elapsed since notification of the Welfare Scheme however it has not been implemented so far even though the insurance policies as promised under the scheme have become necessary to provide treatment to lawyers, particularly during Covid-19. As a result, it has requested that the Delhi Government provide funds and issue insurance coverage for Rs.5 lacs and Rs.10 lacs to 29,098 Advocates who are already registered under the Welfare Scheme.
Similarly, petitions were also filed by BCD seeking direction to the Delhi Government to implement the CM Advocates Welfare Scheme, especially during the taxing times of the COVID-19 pandemic.
Summarization of the relief sought
- All those who were eligible to be registered under the scheme will get the insurance policies as per the scheme.
- Revoking the condition that those who have voter IDs will be eligible for the scheme and thus, in effect, extend the benefits of the scheme even to those residing in NCR/other areas provided they are enrolled with the BCD.
- To open the registration portal so that those who were unable to register can do it now. 5044 advocates are registered with the BCD but live in NCR/other areas.
- Now since the budget crosses the funding limits of BCD, it should complement the fundings provided by GNCTD.
- Lastly, the Court added that the Law Secretary of the GNCTD and the Chairman Bar Council of Delhi should look into the working of the scheme.
- The Court then asked to implement a new scheme based on the present judgment by 30th September 2021, in consultation with BCD and insurance companies.
Right to equality and the scheme
The equality principle is enshrined in Articles 14 to 18 of the Indian Constitution which says that equals should be treated equally i.e. nobody should be discriminated against based on caste, race, religion, sex, or birthplace. The state shall, thus, not discriminate or give any sort of preferential treatment to anyone or give anyone special treatment. However, it does not make a mention of equal treatment under the same situations. It is also mentioned in our Preamble. There are 6 types of equality – nature, social, civil, political, economic, legal. In the present case, there is a violation of legal equality.
Rule of law states that nobody is above or below the law. Everyone is equal in the eyes of law. This rule of law comes from the Magna Carta and governs all the state organs and bodies. The rule of law in Article 14 is a “basic feature” of the Constitution and so cannot be violated.
In D.S Nakara v. Union of India (1982), it was held that the clause which is differentiating between retirement age of prisoners is arbitrary and not dependent on a rational principle and thus violative of the rule of law.
Concerning the scheme in question, the government cannot and should not discriminate on the grounds of the residence of the advocate. The scheme’s discriminatory clause that the advocates practicing in Delhi should also have voter IDs to avail the benefits of the scheme was quashed on the grounds of this principle.
Conclusion
To conclude, the scheme is a great step by the state government of Delhi towards benefitting the lawyers of BCD as already, the competition remains high and facilities remain low. The discriminatory clause of the scheme was then quashed by the Delhi High Court, thus bringing relief to the lawyers who are residing in other areas than Delhi but practice under BCD. The same group’s people should not be discriminated against based on residence as this was duly acknowledged by the Honourable Court of Law. The Court’s decision on extending benefits to all the advocates of Delhi is very mindful.
References
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