Madras HC stays all transfers of complaints from TN Bar Council to BCI on account of delay; questions validity of Section 36B, Advocates Act
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Madras HC stays all transfers of complaints from TN Bar Council to BCI on account of delay; questions validity of Section 36B, Advocates Act

The Court has raised concern that State Bar Councils are taking advantage of the provision and doing injustice to complainants by transferring their complaints to the BCI, New Delhi deliberately.

Meera Emmanuel

The Madras High Court has ordered a stay on the transfer of disciplinary complaints pending before the Bar Council of Tamil Nadu and Puducherry to the Bar Council of India (BCI) under Section 36B of the Advocates Act, 1961.

An order passed last week states,

“… there shall be a direction to the Bar Council of Tamil Nadu and Puducherry to not to transfer any of the cases under Section 36B of the Advocates Act, 1961 to the file of Bar Council of India until further orders from this Court.”
Madras High Court

Section 36B of the Advocates Act deals with the transfer of complaints against advocates to the BCI, if the complaint is not disposed by the State Bar Council within a one year period.

On Friday, a Bench of Justices N Kirubakaran and R Pongiappan raised doubts regarding the validity of Section 36B, given that parties to disciplinary proceedings before State Bar Councils may be unduly burdened in being made to appear before the BCI for no fault of their own by virtue of this provision.

The case before the Court concerned a complaint filed by one Advocate against another back in 2016. However, after the matter was placed for a detailed enquiry before a Disciplinary Committee, the Court found that the State Bar Council had not acted further for over three years.

The complainant moved the High Court for relief on apprehending that the matter may now be transferred to the BCI. The High Court, in turn, noted that the matter had been dragged on for no fault of the complainant. Further that, “if at all, it is only the fault of the Bar Council of Tamil Nadu and Puducherry for keeping the matter for more than 3 years without conducting enquiry and dispose of the matter.”

The Court also struck an empathetic note that, “if the matter is transferred to the file of Bar Council of India, the petitioner may not have the money power to travel to New Delhi to contest the proceedings.” The Bench proceeded to hold that such a move would be unjust to the petitioner, and others in a similar position.

“Already the parties are distressed or their rights have been allegedly violated by the respective counsels against whom they have preferred the complaints. In these circumstances, if the parties are directed to go to New Delhi which is 2200 kms away from Chennai to pursue the complaints, it would be impossible for the poor litigants. They would be put to untold hardship and grave injustice would be caused to them."

Madras High Court

Therefore, the Court opined that, “not only the complaint preferred by the petitioner, but also the other complaints which are to be transferred to the file of Bar Council of India should not be transferred.”

The order authored by Justice Kirubakaran further raised concern that disciplinary proceedings may be deliberately protracted by State Bar Councils so that the matter is ultimately dealt with by the BCI, following a transfer under Section 36B. It was observed,

"“It is evident from many cases listed before this Court that the Bar Council of Tamil Nadu and Puducherry is not exercising its statutory duty and disposing the complaint within the stipulated period of one year. There is every reason to believe that it is being done deliberately to ensure that Section 36B of the Advocates Act, 1961 could be invoked and the complaints could be transferred to Bar Council of India…."

"… It [Section 36B] was brought only in the interest of the aggrieved litigants and also to see that erring advocates are punished at the earliest. However, the Bar Councils of the respective States are taking advantage of the said provision and doing injustice to the complainants by transferring their complaints to the file of the Bar Council of India, New Delhi deliberately. Thus, the very purpose of the provision is frustrated.”

Madras High Court

Opining that the validity of the provisions needs to be examined, the Court has also impleaded the Central Government as a party in the matter, while noting that,

"“As this Court has no power to direct the Parliament to delete the aforesaid portion in Section 36B of the Advocates Act, this Court, suo motu, would like to consider the vires of the aforesaid portion alone, as it appears to be violative of the rights of the litigants guaranteed under Article 14 of the Constitution of India, besides being unreasonable and arbitrary and appears to have lost its purpose and rationality.”

Further, the Bench has also posed the following questions to be answered by the State Bar Council on the issue, i.e.:

  • How many complaints are pending before Bar Council of Tamil Nadu and Puducherry as on date?

  • How many matters have been referred to the disciplinary committees?

  • How many complaints are more than one year old?

  • How many matters are ready to be transferred to the file of Bar Council of India?

  • What are all the reasons for the delay in not disposing the complaints within one year?

  • How many cases have been transferred to Bar Council of India for the past 5 years?

  • What is the position of those cases which have already been transferred to the file of Bar Council of India?

  • How many cases have been transferred to Bar Council of India from various State Bar Councils under Section 36B of the Advocates Act for the past 5 years?

  • How many transferred cases from various State Bar Councils to Bar Council of India have been disposed for the past 5 years?

  • Why not the Bar Council of India have sitting in respective Judicial capitals of the State to dispose of the transferred cases from the respective State?

The matter will be taken up next on March 6.

[Read the Order]

Order re Section 36B, Advocates' Act - Madras HC - Feb 21, 2020.pdf
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