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COVID-19 crisis: Madras HC urges for amendment of Bar Council Rules to allow interim payouts from Welfare Funds to aid needy lawyers, clerks

An enabling Rule in the State regulations "can and, in our recommendation, must be inserted by way of an amendment at the earliest, to provide for interim pay-outs to needy advocates in these dark and difficult days."

Meera Emmanuel

The Madras High Court on Tuesday strongly urged for an amendment to be brought to the State Bar Council Rules so as to enable the disbursement of advocate welfare funds in the form of interim payments to aid lawyers and advocates' clerks in need amid the COVID-19 crisis (Dr AE Chelliah v. The Chairman and Members of the Bar Council of Thamizh Naadu and Puducherry and ors).

The Bench of Justices M Sathyanarayanan and Anita Sumanth was dealing with a PIL by Senior Advocate Dr AE Chelliah seeking the distribution of Rs 50,000 each to needy advocates and Rs 25,000 each to needy clerks through the State Bar Council.

Finding merit in the submissions made for the Bar Council of Tamil Nadu and Puducherry, the Bench noted that there was presently no provision in the Bar Council Rules or the Welfare Fund Acts for lawyers or advocates' clerks which would allow for interim payouts amid the COVID-19 crisis.

The Court had been informed that as on date, the Rules stipulate specific circumstances and exigencies upon the occurrence of which only payments can be made to the beneficiaries. However, there is no provision for an interim payment.

"Sadly, the BCTNP is right. Though there are several situations enumerated for remittances to be effected, circumstances such as the present, warranting interim payments at the discretion of the Trustees has simply not been envisaged and thus not provided for", the Court noted.

However, the Bench proceeded to point out that the lacuna may be addressed by bringing an amendment to the Bar Council Rules.

In this regard, the following provisions were taken note of,

  • Bar Council of India Regulation 41(3) permits 80% of the total sum collected by the Bar Council of India Advocates Welfare Fund Committee for the State to be utilised for the welfare of Advocates in respect of Welfare Schemes sponsored by respective State Bar Councils. Thus, though a suitable amendment must be made to the State Rules, the BCI Regulations have envisaged a situation where the State can formulate and sponsor a welfare scheme for Advocates and utilize the amounts collected, after seeking and obtaining the concurrence of the BCI.

  • Regulation 44A(6) also provides for the State Bar Council to implement such a scheme in tandem with the BCI and subject to mandatory monitoring by the BCI.

Keeping these solutions in mind, the Court called for the introduction of amendment to the Bar Council Rules to aid lawyers and clerks in need during the present crisis. The Bench said,

"The absence of a specific and enabling Rule in the State regulations, though an immediate barrier, (it) can and, in our recommendation, must, be inserted by way of an amendment at the earliest, to provide for interim pay-outs to needy advocates in these dark and difficult days. "
Madras High Court

During the course of the proceedings, the Bar Council of Tamil Nadu and Puducherry emphasise that it was not blind to the difficulties being faced by its members.

To alleviate their difficulties, the Bar Council had also undertaken relief initiatives including pooling contributions by senior lawyers and other members of the Bar and requests for aid to the State Government. The Advocates Relief Fund built by the State Bar Council was stated to have built a corpus of Rs 5 crores to extend aid.

About 16,000 applications for financial aid were received from lawyers in need, of which 12,215 applicants were found eligible for the aid. Fwollowing the receipt of certain funds from the State Government, the Court was told that a sum of about Rs 4,000 each was disbursed to around 12,000 lawyers on May 18. Further, response was awaited on a request made for additional funds from the Government.

The Court, however, opined that the efforts for providing financial aid can be stepped up still. It observed,

"We are of the considered view that the efforts of the BCTNP must be more aggressive and it cannot rest content with the payment of Rs.4000 per advocate. In any event, no payment at all has been made to the Clerks."
Madras High Court

It went on to direct the Bar Council authorities and the State Government to take necessary action to move towards introducing amendments to allow interim payments from welfare funds by the next hearing. In this regard, the order states,

"While there may be no provision available as of now to provide for interim payments, the present circumstances warrant urgent and immediate amendments to the provisions of the Act/relevant Rules to enable the BCTNP to release some portion of the funds held in trust by the Welfare Fund to the advocates, as an interim measure. This is our strong and urgent recommendation and we urge the respondents to take necessary action as aforesaid, at the earliest, and at any rate, before the next hearing of this matter."

The PIL itself was closed, given that the Cour was not in a position to acceded to the petitioner's prayers straightaway.

"However, the issue raised herein remains alive and within our anxious consideration", the Court said while adjourning the matter to be taken up next on July 1.

Read the order:

Dr AE Chelliah v. The Chairman and Members of the Bar Council of Thamizh Naadu and Puducherry and ors.pdf
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