Full Bench of Madras HC to decide on lawyer verification controversy

The Madras High Court has decided to constitute a Full Bench to decide issues relating to verification of lawyers and eligibility of advocates for enrollment..The issues to be examined would include those relating to the recent controversy surrounding show cause notices issued to advocates found practicing without necessary educational qualifications..Recently, as many as 742 advocates were suspended from practice, after it was found that they had obtained degrees from Open Universities, in violation of Rule 5 of the BCI’s Legal Education Rules, 2008..However, following a PIL filed protesting the same, the Court had stayed the suspension and directed that the affected advocates first be given an opportunity to be heard. Any adverse action against the said advocates could only be taken after obtaining the leave of the Court..Apart from this stipulation, however, the Bar Council of Tamil Nadu and Puducherry was allowed to continue with the verification process and take appropriate action in accordance with its powers..The First Bench of Chief Justice Indira Banerjee and Justice M Sundar today determined that there were important questions of law meriting consideration by a larger Bench. The Bench came to this conclusion after it heard submissions made on a fresh petition filed on behalf of an advocate affected by the aforementioned show cause notice..Appearing for the petitioner, Advocate M Radha Krishnan contended that the show cause notice issued against the petitioner was without jurisdiction or merit..The petitioner had joined a college affiliated to the Bar Council of India (BCI)-recognised Dr Ambedkar University in 2006-2007. He obtained his BA degree from an Open University prior to that. The Legal Education Rules, 2008 only came into force in the academic year 2009-2010..Given that the petitioner joined his course at a time when the 2008 Rules were not in force, he was rightly enrolled as an advocate in September 2010, after obtaining his law degree in May 2010. Thereafter, he had also cleared the All India Bar Examination and was issued a Certificate of Practice in March 2012. The same has not been cancelled by the BCI till date..It was noted that in Sakti Rani’s case, the Court did not have occasion to consider whether those who had joined the law course prior to 2008-2009 or earlier would be eligible to be enrolled as advocates. It only dealt with relaxation of the Legal Education Rules with respect to those who had completed their degrees prior to the coming into force of the said Rules..The petitioner contended that the State Bar Council had thus misconstrued the ruling when it communicated that no person can be allowed to enroll himself on the rolls of the State Bar Council unless he has satisfied the mandatory provisions of Rules of Legal Education, 2008 in respect of the educational qualification for enrolment..Furthermore, Justice Kirubakaran’s orders, which had catalysed the impugned Bar Council resolution and subsequent show cause notices, did not call into question BA degrees obtained from Open Universities. It only focused on MA degrees obtained from Open Universities between the years 2009-2016..Merits aside, the petitioner also emphasised that the State Bar Council issued the impugned show cause notice without jurisdiction. It had passed the show cause notice in purported exercise of its powers under Section 26 (1) of the Advocates Act, 1961..However, the petitioner argued, Section 26 (1) does not confer any power upon the State Bar Council to act against advocates once their enrollment has been completed. In other words, the State Bar Council’s role in this regard ends after the enrollment of the advocate has been completed. It is only the BCI that has the power to initiate penal consequences post enrollment..As per the proviso to Section 26 (1) of the Act, the BCI can, on reference made to it or otherwise, remove an advocate from the rolls if it is found that there was misrepresentation as to an essential fact or fraud or undue influence, by the advocate to get his name enrolled..Hence, even if the petitioner was found to be unqualified to practice as an advocate, it is only the BCI that can take penal action against him..In this context, it was contended on behalf of the State Bar Council that the impugned show cause notices were only issued for the purpose of referring the same to the BCI..It was argued that the State Bar Council was obliged to act given the mandate in the BCI Rules as well as various case laws, including the recent orders by Justice Kirubakaran..Now that the Supreme Court, as well as a Verification Committee overseen by a retired Supreme Court judge, have taken up the issue of verification, the Bar Council is obliged to Act..Hence, it was argued, the State Bar Council is acting with the aid and advice of the BCI. However, no final decision in the matter would be taken by the State Bar Council, contrary to the apprehensions of the petitioner. Therefore, it was contended, the petition in question was premature..The Court was also stated that related issues were proposed to be heard by a Full Bench previously. Owing to the recusal of a judge from the case, the Full Bench could not hear the matter. In view of this fact, and the various submissions made, the First Bench agreed that the matter should be referred to a Full Bench..In the meanwhile, the petitioner has been allowed to practice pending disposal of the writ petition. Inter alia, the Court also remarked that as much as it agrees that the Legal Education Rules are in force, it was the respondent State Bar Council that had allowed the enrollment of the petitioner, who was consequently allowed to practice for years before the show cause notice was abruptly issued..Read copy of Writ Petition below.

Full Bench of Madras HC to decide on lawyer verification controversy

Meera Emmanuel

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