Choice of membership in a Bar Association not of Association but of the individual Advocate, TN Bar Council

Choice of membership in a Bar Association not of Association but of the individual Advocate, TN Bar Council

Meera Emmanuel

The Bar Council of Tamil Nadu and Puducherry (TN Bar Council) recently passed an order reasserting its superintendence over the functioning of Bar Associations. In doing so, it also directed that no Bar Association can deny membership to practicing advocates for reasons not “known to law.” In its order, the TN Bar Council opines,

…the choice of membership of the Association is not of the association but of the individual Advocate…

The remark was made in the backdrop of the Council’s observation that following the enrolment of an advocate, her/his membership in a recognised Bar Association is mandatory under the Advocates’ Act, 1961 as well as the Tamil Nadu Advocates Welfare Fund Act, 1987.

This being the case, the Council also frowned up the tendency of older Bar Associations to reject membership to interested advocates. It noted,

“… unless and otherwise an advocate is non-practicing advocate or prohibited from practicing by the Bar Council or is facing contempt proceedings, or criminal cases, the sentence of which is 3 years or above 3 years, or accused of misappropriation of Association’s funds and misbehaviour with other advocates, an advocate cannot be denied membership once he applied for membership to any Association which occupies the Court and public premises and enjoying the cream as an Association.” 

The order was passed by the Enrolment Committee of the Council, comprising of members R Singaravelan and N Chandrasekaran, while disposing of a dispute concerning members of the George Town Bar Association.

96 advocates claiming to be members of the said Bar Association had approached the Bar Council aggrieved by the denial of their right to participate in the Association’s elections due to be conducted on June 7.

They had been denied this right on the ground that they had been inducted into the Association only months before the elections were due. However, many of these members had enrolled as advocates years before. Their membership was kept dormant when they were temporarily suspended for not having cleared the Bar Exam.

The TN Bar Council eventually ruled in their favour noting that their membership in the Association would get revived from the date of their initial admission, and not from the date of passing the exam. Subsequent objections against granting them the right to vote were also rejected as devoid of merit, given the Association’s own bye-laws.

TN Bar Council’s supervisory role over Bar Associations ignored

The dispute, however, prompted the TN Bar Council to evaluate the manner in which recognised Bar Associations were generally functioning.

At the outset, it noted that the State Bar Council’s supervisory role over the various Bar Associations in view of the  Bar Council of India Certificate and Place of Practice (Verification) rules, 2015 as well as Section 6 (1) (dd) of the Advocates Act, 1961 was not being respected. Its June 3, 2019 order observes,

It is painful to note that even the very older Associations… fail to take note of the above rule position and their duties and obligations [to the Bar Council] under the Rules but authoritatively claim that they are unquestionable monarchs and are even about the Bar Council.

It is unfortunate to note that the State Bar Council also is silent spectators to all their unquestionable activities by giving up its right to question those Advocates and their membership dealings. 

The silence on the part of the Bar Council towards the recognised and registered Associations embolden them to do whatever a few elected men of money, influence and power dictate and the wish of the majority members of the Asspciations and the law abiding good hearted Senior Advocates is being crushed into ashes and buried...”

Arbitrary denial of membership to Bar Associations leads to the proliferation of more Bar Associations

Among the various issues taken up by the TN Bar Council was the apparent tendency of older Bar Associations to deny membership to interested advocates. The Council expressed concern that such a trend would, in turn, lead to the burgeoning of more Bar Associations.

If membership is denied to the existing very old Associations without following any constant and consistent sustainable and democratic stand, then where the advocate enrolled … can go and get the benefit of various welfare schemes [?]

The Council proceeded to detail several issues arising due to the increasing number of Bar Associations in the Madras High Court. The order goes on to sum up the reasons for the apparent reluctance to speak up about such myriad issues thus,

All the above sufferings are being daily witnessed and experienced badly by all of us and no one is ready to correct or question the greedy wrong doers being afraid of their Association background and senior advocates of power and influence well versed in WhatsApp criticism and making defamatory allegations tearing the image of the questioner.”

The Council also adds that it is not out to blame anyone. However, citing its statutory supervisory role over the various Bar Associations and its duty to inform the Associations about the same, the Enrolment Committee proceeded to issue several directions for compliance by Bar Associations.

Directions issued to Bar Associations

  • Membership to Associations occupying public premises must be governed by uniform laws. Every enrolled practicing Advocate, free from contempt or criminal proceedings or Bar council punishment has the right to apply for membership. The bylaws of the Association cannot put any unreasonable and arbitrary restriction on the same. If membership is denied, the concerned Association has to give reasons known to law. The denial of membership should follow a reasonable opportunity of being heard to the applicant advocate;
  • All advocates and Bar Associations have to submit members’ list as on the 31st of March every year by April 16 of the same year to the TN Bar Council;
  • Any change in membership has to be informed to the TN Bar Council;
  • Bar Association elections must be held on the basis of the list verified by the TN Bar Council;
  • Bar Association elections must be conducted at least every two years. The election cannot be postponed for more than 2 years and the Bar Association bylaws must reflect this (as amended if required);
  • Officer bearers of Bar Associations can only be allowed two consecutive terms to avoid “claiming monopoly of ruling over the Association”. However, they can contest again on the 5th round of elections held after their first term in office;
  • Bar Associations with premises in the Court must provide for a library or at least an E-library. The Association premises cannot be used for gambling;
  • If any recognised Bar Association is not allotted a place, it can approach the concerned authority for the same;
  • Advocates found drinking alcohol inside the Association premises located within the Court campus would be subject to disciplinary action;
  • Bar Association members can legally occupy the premises only up to 7.30 pm. Thereafter, the Association premises can be kept open only after obtaining the permission of the Registrar or authorised officer of the concerned Court;
  • No elected member of an Association should use their official positions except while representing the rights of the Association. The official position should not be used for personal or professional gain. 

The order has been directed to be circulated to all advocates and Bar Associations for strict compliance.

Read the TN Bar Council order here

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