In this article, Anirudh Sethi discusses whether Bar Associations can deny an advocate the right to legally represent an individual.
Recently, Faridabad District Bar Association (FDBA) passed a resolution[1], which barred the outstation advocates from appearing before the Faridabad District Court unless they are accompanied by a local advocate. Bar Association’s secretary relied[2] on a Supreme Court’s ruling[3] and justified the Association’s resolution.
The case relied by the Association was Jamshed Ansari v. High Court of Allahabad[4] wherein Rules 3 and 3A of the Allahabad High Court Rules, 1952 were challenged. The court in its judgment held the rules as perfectly valid, legal and in consonance with Article 19 (1) (g) of the Indian Constitution. Important portions of Rule 3 and Rule 3A for the purpose of this article are reproduced below:
Rule 3: An advocate who is not on the Roll of Advocate or the Bar Council of the State in which the Court is situated, shall not appear, act or plead in such Court, unless he files an appointment along with an Advocate who is on the Roll of such State Bar Council and who is ordinarily practicing in such Court.
Rule 3-A: Unless the Court grants leave, an Advocate who is not on the Roll of Advocates in the High Court at Allahabad or Lucknow shall not be allowed to appear, act or plead in the High Court at Allahabad or Lucknow as the case might be unless he files appointment along with an Advocate who is on such roll or Allahabad Cases at Allahabad and for Lucknow Cases at Lucknow.
Therefore, it can be deduced that similar provisions were in question before the Supreme Court at that time. However, in that case, the rules so drafted were formulated by High Court by virtue of its powers under Section 34 of the Advocate Act, 1961 (Act, 1961) and Article 225 of the Constitution and not by the Bar Council or State Bar Association.
The Powers of Bar Council of India are laid down under various sections of the Act, 1961. Section 49 (1) provides residuary powers to Bar Council of India to make rules in furtherance to the discharge of its functions, which are envisaged under the Act, 1961. However, no section in the Act, 1961 provides the Bar Council the power to prohibit appearance in the courts save for the disciplinary proceedings.
Restrictions on appearance of advocates in the Patna High Court was discussed in Anju Mishra v. The High Court of Patna[5] wherein it was observed that:
It has been held by the Allahabad High Court in Prayag Das v. Civil Judge, Bulandshahr [AIR 1974 All 133], that the High Court has the power to make rules for regulating the appearance of advocates and proceedings inside the Courts. Obviously, the High Court is the only appropriate authority to be entrusted with this responsibility. However, so far as the basic qualification of an advocate entitling him to practice, without physically appearing in Court, or disentitling him from doing so, is concerned, the determination of such conditions must remain within the exclusive province of the Bar Council.
Thus, it was held that it is the High Court which has exclusive power to regulate the appearance of advocates in the High Court or in the courts subordinate thereto but by no stretch of imagination it can be extended to Bar Councils much less to Bar Associations.
It is noteworthy to observe that the FDBA is not a statutory body, while the Bar Council is a statutory body duly constituted under the Act 1961. Bar Associations are generally registered under the Societies Registration Act, 1860 and can form their own rules and regulations for its members. However, they cannot actually encroach or override on the express statutory provisions laid down by the legislature or the High Court, for that matter.
Recently, the Supreme Court Roster bench heard a matter[6] where the Jabalpur District Bar Association by a resolution restrained all the advocates from appearing and representing a specific litigant husband. The court, speaking through Justice Abdul Nazeer and Justice Indu Malhotra observed that “if such a resolution has been passed, it will be withdrawn”, thereby negating the overreach by Bar Association.
Assessing the situation from another perspective, it is vital to consider that whether if the Rule imposed by the Bar Association is a reasonable one or not. The reason given by the Association in the resolution is that the outstation advocates cause inconvenience to the members of the FDBA as the matters go uninformed and it results in the loss of work of the fellow advocates.
It can be seen that the regulation is prohibitory and not regulatory in nature as it poses a complete ban on outside advocates. The regulation does not even give an option of representation by outside advocates with the leave of the court. In Jamshed Ansari this option was given to the other advocates. It was one of the factors that ultimately led to upholding of the vires of the Rules. Furthermore, the regulation poses a threat to the concept of justice at the door step and at an affordable cost which is enshrined in the Constitution under Article 39A. In a given case, a party may not be able to afford to engage another advocate at Faridabad court or he might be of the view that his outstation advocate is in complete control of the entire brief. Since the rule compels the parties to engage another domestic counsel it will further put burden on the shoulders of poor litigants.
On a careful analysis of constitutional, statutory and relevant case laws it appears that Bar Associations cannot in the letter of the law prohibit outstation advocates from appearing in any court. The action of FDBA attracts necessary criticism from the advocates regarding the validity of its recent resolution.
* Final Year Law Student (awaiting result), Law Centre II, Delhi University.
[1] http://www.livelaw.in/faridabad-distt-bar-assn-passes-resolution-barring-outstation-advocates-from-appearing-in-courts-sans-local-lawyers/
[2] Ibid.
[3] Jamshed Ansari v. High Court of Judicature at Allahabad & Ors. civil appeal no. 6120 OF 2016
[4] Ibid.
[5] Anju Mishra vs The High Court of Judicature At Patna and Ors. Civil Writ Jurisdiction Case No.5831 of 2012 delivered on17 July, 2015
[6] http://www.livelawin/bar-associations-cant-deny-advocates-the-right-to-legally-represent-any-individual-sc/
