BCI Practice Rules Writ

8/9/2019 BCI Practice Rules Writ

1/37

IN THE HIGH COURT OF KARNATAKA PRINCIPAL BENCH, AT

BENGALURU

(ORIGINAL WRIT JURISDICTION)

WRIT PETITION No.17361 of 2015 (GM- RES )

BETWEEN:

Mr. A. P. RANGANATHA

Son of Mr. Padmanabhaaged 41 Years, AdvocateResiding at Agara Village,Tataguni PostBangalore South Taluk,Bangalore Urban District ….. PETITIONER

AND

1. BAR COUNCIL OF INDIAEstablished under the provisions ofthe Advocates Act, 1961having its Office at21, Rouse Avenue Institutional Area,Near Bal Bhawan,New Delhi – 110 002(Represented by its Chairperson)

2. KARNATAKA STATE BAR COUNCILOld K.G.I.D BuildingDr. Ambedkar VeedhiBengaluru - 560 001(Represented by its Chairperson) …RESPONDENTS

MEMORANDUM OF WRIT PETITION UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDIA

The Petitioner above-named most respectfully submits as under:


2/37

1. The Petitioner has preferred this Writ Petition being highly aggrieved by

the passing and publication of the Certificate and place of Practice

(Verification) Rules, 2015 (the “Impugned Rules”) passed and notifiedvide Notification dated 12

th January, 2015 and published in Section 4 of

the Gazette of India (Extraordinary) dated 13th January, 2015, produced

herein and referred to hereinafter as ANNEXURE – A, on the following

set of

2. BRIEF FACTS

Re: Petitioner

3. The Petitioner is a citizen of India and an Advocate enrolled with the roll

maintained by the 2nd

Respondent herein, under the Enrollment Number:

571 of 1999. Ever since his enrolment, the Petitioner has been practicing

before this Hon’ble Court and its subordinate courts in the State of

Karnataka.

4. The Petitioner has been a member and an office bearer of the Advocates

Association Bengaluru (AAB). The Petitioner was the General Secretary

of the AAB from 2011 to 2014. Pursuant thereto, in the year 2014, the

Petitioner contested for the post of the President but could not succeed in

the elections.

Re: Legislative Framework

5. Indian Parliament enacted the Advocates Act, 1961 (the “Act”) to regulate

the persons practicing the profession of law, ensure the dignity and purity

of the noble profession of law, and for other matters, morefully stated in

the Act itself.. The Act provides for establishment of the State Bar

Councils and the Bar Council of India. The Respondent and other State

Bar Councils have been created not only to protect the rights, interests

and privileges of its members but also to protect the interest of the

general public by ensuring them that the professionals rendering the legal

services maintain high and noble traditions of the profession. The Act is a

complete code enacted with intent to amend and consolidate the law

relating to legal practitioners.


3/37

6. Under Section 29 of the Act, subject to the provisions of the Act and any

rules made there under, there shall, be only one class of persons entitled

to practise the profession of law, namely, advocates. But Section 17 sub-

section (2) of the Act lays down that there can be only two classes of

advocates; senior advocates and non-senior or ordinary advocates. Thus,

the Act permitted only two classes of advocates and any further

classification within non-senior advocates is not permitted under the Act.

1. It is submitted that section 30 of the Act provides that subject to

provisions of the Act, (and not under any rules made thereunder) every

advocate whose name is entered in the State roll shall be entitled as of

right to practice throughout the territories to which the Act extends. Thus,

every advocates whose name is entered in the State roll is entitled as

matter of right to practice and appear in all courts including the Supreme

Court; any tribunal or person legally authorised to take evidence; and

before any other authority or person before whom such advocate is by or

under any law for the time being in force entitled to practice. The said

Section 30 of the Act was brought into force with effect from 15 th June

2011, vide Notification No. SO 1349(E) dated 09th June, 2011. A true

copy of Notification No. SO 1349(E) dated 09 th June, 2011, is produced

as ANNEXURE – B.

2. As per section 7 of the Act, the 1st Respondent is required to discharge

the following functions:

a. to lay down standards of professional conduct and

etiquette for advocates;

b. to lay down the procedure to be followed by its disciplinary

committee and the disciplinary committee of each State

Bar Council;

c. to safeguard the rights, privileges and interests of

advocates;

d. to promote and support law reform;


4/37

e. to deal with and dispose of any matter arising under this

Act, which may be referred to it by a State Bar Council;

f. to exercise general supervision and control over State Bar

Councils;g. to promote legal education and to lay down standards of

such education in consultation with the Universities in India

imparting such education and the State Bar Councils;

h. to recognise Universities whose degree in law shall be a

qualification for enrolment as an advocate and for that

purpose to visit and inspect Universities or cause the State

Bar Councils to visit and inspect Universities in accordance

with such directions as it may give in this behalf;

i. to conduct seminars and organize talks on legal topics by

eminent jurists and publish journals and papers of legal

interest;

j. to organise legal aid to the poor in the prescribed manner;

k. to recognise on a reciprocal basis foreign qualifications in

law obtained outside India for the purpose of admission as

an advocate under this Act;

l. to manage and invest the funds of the Bar Council;

m. to provide for the election of its members;

n. to perform all other functions conferred on it by or under

this Act.

o. to do all other things necessary for discharging the

aforesaid functions;

3. It is submitted that the in order to discharge the aforesaid functions, the

Respondent has been empowered under the Act to make rules as per

Section 49 (1) of the Act and such rules may specify the following:

a) the conditions subject to which an advocate may be entitled to

vote at an election to the State Bar Council including

aa) the qualifications or disqualifications of voters, and the manner

in which an electoral roll of voters may be prepared and revised by

a State Bar Council;

(ab) qualifications for membership of a Bar Council and the

disqualifications for such membership;


5/37

(ac) the time within which and the manner in which effect may be

given to the proviso to sub-section (2) of section (3);

(ad) the manner in which the name of any advocate may be

prevented from being entered in more than one State roll;(ae) the manner in which the seniority among advocates may be

determined;

[(af) the minimum qualifications required for admission to a course

of degree in law in any recognized University;

(ag) the class or category of persons entitled to be enrolled as

advocates;

(ah) the conditions subject to which an advocate shall have

the right to practise and the circumstances under which a

person shall be deemed to practise as an advocate in a court;

(b) the form in which an application shall be made for the transfer

of the name of an advocate from one State roll to another;

(c) the standard of professional conduct and etiquette to be

observed by advocates;

(d) the standards of legal education to be observed by universities

in India and the inspection of universities for that purpose;

(e) the foreign qualifications in law obtained by persons other than

citizens of India which shall be recognised for the purpose of

admission as an advocate under this Act;

(f) the procedure to be followed by the disciplinary committee of a

State Bar Council and by its own disciplinary committee;

(g) the restrictions in the matter of practice to which senior

advocates shall be subject;

(gg) the form of dresses or robes to be worn by advocates, having

regard to the climatic conditions, appearing before any court or

tribunal;

(h) the fees which may be levied in respect of any matter under this

Act;

(i) general principles for guidance of State Bar Councils and

the manner in which directions issued or orders made by the

Bar Council of India may be enforced;

(j) any other matter which may be prescribed:

4. It is submitted that under Act, the 1st Respondent made rules known as

the Bar Council of India Rules (“BCI Rules”). The BCI Rules, as revised,


6/37

have been published in the Gazette of India on 06th September, 1975 in

Part III, Section 4 (pages 1671 to 1697) and have been subsequently

amended from time to time. The aforesaid Rules contain the conditions

subject to which an advocate should have the right to practise and other sufficient institutional mechanisms for the regulation of the Advocates,

after their enrolment in the rolls of the State Bar Council.

Re: Impugned Rules

5. This being the case, the 1st Respondent initially framed the Bar Council of

India Training Rules, 1995, which was struck down by the Hon’ble

Supreme Court of India in V.SUDEER vs . BAR COUNCIL OF INDIA &

ANR reported in AIR 1999 SC 1167.

6. This being the case, the 1st Respondent initially passed the Bar Council

of India Certificate of Practice and Renewal Rules 2014. After receiving

severe objections from the advocate’s community, in January, 2015

passed the Impugned Rules were promulgated by superseding the 2014

Rules, purportedly in the exercise of powers conferred on it by Section

49(1) (ag), 49 (ah) 49(i) of the Advocates Act, 1961 and by all other

enabling and residuary powers vested in it. The gist of the Impugned

Rules is as under:

a) as per Rule 6, an advocate, after having obtained a Certificate or

Enrollment under section 22 of the Act is required to get himself

registered as a member of the Bar Association where he ordinarily

practices law or intends to practice law. And if any Advocate does

not intend to be a member of any Bar Association duly recognized

by concerned State Bar Council, then he shall be required to

intimate the same to the State Bar Council and he shall have to

explain as to how shall he be getting the benefits of any welfare

scheme floated by the State Bar Council or the Local Bar

Association. The decision of State Bar Council shall be final in this

regard.


7/37

b) As per Rule 9.2: All applications for verification shall be filed in the

format as given in Form A annexed with these Rules and it shall beaccompanied by such documents, certificates, declaration, fee etc

as are mentioned in clauses (i), (ii) and (iv) of Rule 8.4 and the

same may be submitted as per Rule 8.5.

c) As per Rule 13: Order on the application for verification of

Certificate of Practice every application for verification of certificate

of practice and place of practice received shall be scrutinized by

the Office within a period of one month from the date of its receipt

and if found in order, it shall be placed along with the personal tile

of the applicant before the Administrative Committee, for passing

the requisite order allowing or dismissing the application.

d) As per Rule 14: An advocate or any person may file an objection

petition before the State Bar Council seeking to add the

name/names of an advocate/advocates in the List of Non-

Practicing Advocates on the ground that such an advocate has left

law practice and that he/she has no bona fide intent and interest in

continuing it in future also.

e) as per Rule 21 of the Impugned Rules, is that from the date of

publication of the list of non-practicing advocates, all such

advocate/s whose name/names has/have been included in the list

of ‘non-practicing advocates’, shall not be entitled to appear in any

Court of Law, before any Tribunal or person legally authorized to

take evidence and before any other authority or person before

whom such advocate is by or under any law for the time being in

force entitled to practice, notwithstanding the fact that name/names

of such advocates is/are entered in the State Roll and that he is

holding certificate of enrolment under section 22 of the Advocates

Act. Further, name/s of such advocate/s shall not be included in

the electoral roll for the purposes of elections to the State Bar

Councils. Such an advocate/s shall cease to be a member of any

Bar Association and further he/she shall not be entitled to cast

vote/s in any elections of the Bar Associations.


8/37

f) As per 24 Appellate Tribunal for disposal of appeals under these

rules with respect to each State Bar Council.

g) As per 28 if an advocate whose name has been included in the “list

of non-practicing advocate” published under Rule 20.4, intends to

resume law practice in the changed circumstances, he may apply

to the State Bar Council that his/her name may be taken out of

such list.

7. The stated main objects of the impugned Rules are to achieve better and

effective administrative and disciplinary control of the local Bar

Associations, State Bar Councils and the Bar Council of India over the

advocates entered on the Rolls of advocates being maintained by

different State Bar Councils under section 22 of the Advocates Act and

further in order to weed out advocates who have left practice, the Bar

Council of India.

8. Even though the Impugned Rules are published in the Gazette of India

dated 13th January, 2015, the Forms and Enclosures mentioned in the

body of the Impugned Rules are not published in the Gazette, so far.

Furthermore, the 2nd Respondent on its website has published the

Impugned Rules stated to have been published in the Gazette of India

dated 12th January, 2015 and Forms contained therein, stated to have

been published in Gazette are in variance to the forms published by the

1st Respondent on its website. Moreover, the Gazette dated 12th

January, 2015 does not contain any Rules or Forms as stated by the 2 nd

Respondent. Hence, there is considerable confusion and ambiguity

resulting in the vitiating of the whole process.

A copy of the Impugned Rules as published in the official website of the

1st Respondent on 29th January, 2015 at the link

http://www.barcouncilofindia.org/wp-content/uploads/2015/01/BCI-Cert.-and-Place-of-

PracticeVerification-Rules-2015..pdf are produced herein as ANNEXURE – C;

A copy of the Impugned Rules and Forms as published on the official

website of the 2nd Respondent at

http://www.barcouncilofindia.org/wp-content/uploads/2015/01/BCI-Cert.-and-Place-of-PracticeVerification-Rules-2015..pdfhttp://www.barcouncilofindia.org/wp-content/uploads/2015/01/BCI-Cert.-and-Place-of-PracticeVerification-Rules-2015..pdfhttp://www.barcouncilofindia.org/wp-content/uploads/2015/01/BCI-Cert.-and-Place-of-PracticeVerification-Rules-2015..pdfhttp://www.barcouncilofindia.org/wp-content/uploads/2015/01/BCI-Cert.-and-Place-of-PracticeVerification-Rules-2015..pdfhttp://www.barcouncilofindia.org/wp-content/uploads/2015/01/BCI-Cert.-and-Place-of-PracticeVerification-Rules-2015..pdf


9/37

http://ksbc.org.in/Images/certificate%20of%20practice.pdf is produced at

Annexure – D.

http://ksbc.org.in/Images/certificate%20of%20practice.pdfhttp://ksbc.org.in/Images/certificate%20of%20practice.pdfhttp://ksbc.org.in/Images/certificate%20of%20practice.pdf


10/37

9. The 2nd Respondent has given wide publicity to the draft published by it

on its official website and has even published booklets and displayed the

said publication in all notice boards, including the notice board at thisHon’ble Court.

10. As per the Act the enrolment as an Advocate in rolls of the 2nd

Respondent or any State Bar Council automatically entitles an individual to

practice. On the other hand, in respect of laws governing other similarly

situated professional bodies viz., Institute of Chartered Accountants of

India, Institute of Company Secretaries of India, Institute of Actuaries of

India, Institute of Cost Accountants of India, there is a clear cut separation

of the Membership of the respective institutions with that of certificate of

practice. However, as per the Indian Medical Council Act, 1956, the

profession and the membership of the Medical Council and certificate of

practice are one and the same - similar to that of the scheme of Act. In

sum, in case of the Medical and Legal professions, the respective

governing laws do not differentiate between the membership of the

respective professional body and their practice of the profession. This

conscious legislative treatment cannot be subrogated through a

subordinate legislation.

11. It is submitted that under the scheme of the Constitution of India and

Act there is no distinction drawn between the litigious and non-litigious Advocates and hence, the non-litigious lawyers have every right to

participate in the affairs of the Bar Councils and Bar Associations. In fact,

the Constitution of India confers every right on the non-litigious Advocates

to occupy the highest post of judiciary viz., Chief Justice of India. However,

the Impugned Rules seek to oust the non-litigious Advocates from the

affairs of the Bar Council and Bar Associations and thus, violate the

scheme of the Act and the Constitution of India.

12. It is precisely, therefore, there is no bar or prohibition for the non-

litigious advocates to become the judges of any Constitutional Courts or

Civil or Criminal Courts in India. It is pertinent to submit at this stage that

on 30th March, 2015, under the provisions of the Karnataka Judicial

Services (Recruitment) Rules, 2004 and rules made there under from time

to time this Hon’ble Court has invited applications for the post of Civil


11/37

Judges. It is pertinent that the only qualifying requirement under the

notification is that the candidate should have been enrolled as an

Advocate. A copy of the notification inviting applications for the post of Civil

Judges Gazette Notification dated 30

th

March, 2015, published in theExtraordinary Gazette of Karnataka dated 31

st March, 2015 is produced

herein as ANNEXURE – E.

13. Declaration: The Petitioner declares that he has no other

alternative efficacious remedy other than to approach this Hon’ble Court

and further declares that he has not filed any other Writ, Case or Petition

before any other Court or Tribunal or Authority based on the same cause

of action.

14. It is submitted that ostensibly deriving power from sections 49 (1)

(ag), and 49 (1) (ah) and 49 (i) of the Act and purportedly in exercise of

the some of the BCI Rules, the 1st Respondent has passed and notified

the Impugned Rules, which is challenged by the Petitioner inter alia on

the following set of

GROUNDS

15. Because the Impugned Rules are illegal, unconstitutional,

untenable, arbitrary, discriminating and are ultra vires the Act.

Re: Unconstitutional

16. Because the right of the petitioner to practice Law as made

available under the relevant provisions of the Act is being arbitrarily

denied by the Impugned Rules framed by the 1st respondent Bar Council

of India and, therefore, the fundamental right of the petitioner under Article 19(1)(g) of the Constitution of India is being violated.

17. Because the impugned Rules do not impose any reasonable

restrictions on the exercise of the fundamental right of the Petitioner. In

any case, the impugned Rules are so framed as to be totally unworkable

and are highly unreasonable and discriminatory in character and hence,

they offend Article 14 of the Constitution of India.


12/37

Re: Beyond Rule Making Powers

18. Because the impugned rules are beyond the rules making power ofthe 1

st respondent. Even assuming that the impugned rules fall within the

rule making power of the 1st respondent Bar Council of India, the Rules

framed are so obnoxious, arbitrary, unreasonable and unworkable that

they violate the fundamental right of the petitioners under Article 14 of the

Constitution of India.

Re: Ultra Vires the Act

19. Because the Impugned Rules are restricting the right of the petitioner

to practice, as provided under Section 30 of the Act, under which right to

practice of the petitioner is subjected to the provisions of the Act only and

not subjected to the provisions of the Rules, The word – ‘under the Act’

employed under Section 30 of the Act cannot be enlarged so as to mean

the same as the rules framed under the Act also, in view of the fact that

there was no express provision – “ or under the Rule framed under the

Act” similar to the one contained under Section 29 of the Act. Hence the

restriction imposed to the right of Practice envisaged under section 30 of

the Act, under the impugned Rules is ultra virus to Section 30 of the Act.

20. Because the impugned Rules also creating four parts of rolls of

advocates namely: ‘Practising Advocates’ ‘Non-practicing Advocates’,

‘ Advocate on Record of the Hon’ble Supreme Court of India’ and Senior

Advocates. As per the scheme of the Act there are only two parts of rolls

of advocates namely Senior Advocates and other Advocates. Hence, this

artificial and arbitrary classification is against the provisions of Section 29

of the Act read with Section 17(2) of the Act.

21. Because, under Rule 4(l) of the impugned Rules, all terms andphrases used in in the impugned Rules shall have the same meaning as

they have under the Act, unless the context in which such words and

phrases are used expressly suggests to the contrary implying that the

scope of the Impugned Rules could be expanded beyond the letter and

spirit of the Act itself, which is not permitted, while formulating delegated

legislation.


13/37

Re: Forms Not Published in Gazette

22. Because the Impugned Rules provide for certification through certainset of forms of applications, declarations and certifications in certain

formats. While the terms and conditions on which an Advocate can

secure Certificate of Practice, Resume Practice etc., are contained not

just in the Impugned Rules but are contained in the forms. In fact, the

crucial terms and conditions based on which an Advocate is entitled for

Certificate of Practice are contained in Forms. While the Minutes of the

Meeting of the Respondent that receded the passing of the Impugned

Rules and the Impugned Rules are published and gazetted, the aforesaid

forms viz., Form - A (Columns 1 – Application for Issuance of Certificate

of Practice, Column 2 – Declaration by the Applicant and Column 3 –

Certification), Form – B (Certificate of Practice), Form C (Application for

Resumption of Practice), Form D (Identity Card), Form - E (Application

for the Senior Advocates and Advocates on Record) are not gazetted.

23. Because the terms in the Forms published by the 1st and 2nd

Respondent are at complete variance with one another and in fact, the

Impugned Rules as published in the Gazette of India do not contain any

Forms.

24. Because this variation becomes even very crucial particularly in the

wake of the fact that 1st Respondent has stated in the Impugned Rules

that they shall come into effect from the date of publication of the Rules in

the Official Gazette. Since the Forms are not published in the Official

Gazette, it cannot be said that Rules are properly published in the Official

Gazette. Without proper publication of the Gazette in the first place, the

Respondents cannot give effect to the Rules. In fact, the 2nd

Respondent

Karnataka State Bar Council too has published the Rules along with the

Forms, to give an impression that Forms too are Gazetted. Non-gazetting

of the Forms that contain vital terms and conditions is wholly vitiates the

Impugned Rules.

25. Because in gist the Impugned Rules as published in the Gazette of

India vis a vis as published by the 1st Respondent vis a vis as published

by the 2nd

Respondent are in total variance and contradiction. On this


14/37

ground alone, the Impugned Rules are unsustainable and liable to be

quashed.

26. Because the 2

nd

Respondent’s publication on its website a text ofthe Impugned Rules is in total variance with the Rules published in the

Gazette of India and the publication of the 1st Respondent on its official

website. In fact, the 2nd respondent states that the impugned Rules are

published in the Gazette of India dated 12th January, 2015. However,

upon verification, it is found that no such publication is published in any

parts of the Gazette of India dated 12th January, 2015 at all.

27. Because as per the Form A Column III of the Impugned Rules

published in the website of the Bar Council of India, five Vakalathnamas

or any other document/cause list establishing that the advocate has been

in practice for last five years have to be produced along with the

Declaration therein. However, as per the 2nd Respondent’s Forms no

such stipulation exists. Furthermore, in the Gazette none of the Forms

have been published.

28. Because the Hon’ble Supreme Court of India in a number of cases

starting from Harla vs. State of Rajasthan ( AIR 1951 SC 467) to the

latest case on point viz., Gulf Goan Gulf Goans Hotels Company

Limited vs. Union of India [2014 (10) SCC 673] has consistently

discussed the effect of non publication of any notification or rules or laws

in the Gazette. It is now settled that law will take effect if the same is not

published in the Gazette. The Hon’ble Supreme Court in the case of B.K.

Srinivasan, vs. State Of Karnataka [1987] 1 SCR 1054 has held that

"where the parent statute is silent, but the subordinate legislation itself

prescribes the manner of publication, such a mode of publication may be

sufficient, if reasonable. If the subordinate legislation does not the mode

of publication or if the subordinate legislation prescribes a plainly

unreasonable mode of publication, it will take effect only when it is

published through the customarily recognised official channel, namely,

the Official Gazette or some other reasonable mode of publication”. While

the Impugned Rules are published in the Gazette, the forms referred to in

the Impugned Rules are not published in the Gazette. Moreover, there is

drastic variance to the respective versions published by both


15/37

Respondents to the official publication in the Gazette. Hence, the whole

process is vitiated.

Re: Enrollment and Beyond

29. Because an Advocate under the Act is defined to mean an Advocate

entered in any roll under the provisions of the Act. Once an Advocate’s

name is entered in any roll under the provisions of the Act, by virtue of

the statutory right conferred under section 33 of the Act, an Advocate

gets the right to practice as a matter to right. However, under the

Impugned Rules, in order to qualify as practicing Advocate, the Petitioner

has to apply to the President or Secretary of the of the Bar Association or

any person nominated by them. The recognition of the Petitioner as

practicing Advocate is at the complete discretion, if not mercy of an

individual manning the bar Association which is not statutory as per the

Act.

30. Because the 1st Respondent has no competence to make rules that

goes to negative the statutory right of practice to an Advocate whose

name is enrolled with the 2nd

Respondent. The rule making powers under

section 49 (1) (ah) of the Act pertain to the conditions subject to which an

advocate shall have the right to practise and the circumstances under

which a person shall be deemed to practise as an advocate in a court.

However, once the name of an Advocate is entered in the Rolls, by way

of conditions subsequent, the 1st Respondent cannot negate the right to

practice of the petitioner, vested with him.

31. Because Part VI, Chapter-Ill of the BCI Rules already prescribe

certain terms and condition subject to which an Advocate has a right to

practice, the 1st respondent cannot prescribe a altogether fresh set of

impugned rules., while keeping the earlier set of Rules intact.

1. Every Advocate shall be under an obligation to see that

his name appears on the roll of the State Council within

whose jurisdiction he ordinarily practices.

PROVIDED that if an advocate does not apply for transfer

of his name to the roll of the State Bar Council within

whose jurisdiction he is ordinarily practising within six


16/37

months of the start of such practice, it shall be deemed

that he is guilty of professional misconduct within the

meaning of Section 35 of the Advocates Act."

2. An Advocate shall not enter into a partnership or any

other arrangement for sharing remuneration with any

person or legal Practitioner who is not an Advocate.

3. Every Advocate shall keep informed the Bar Council on

the roll of which his name stands, of every change of his

address.

4. The Council or a State Council can call upon an

advocate to furnish the name of the State Council on the

roll of which his name is entered, and call for other particulars.

5. (1) An Advocate who voluntarily suspends his practice

for any reason whatsoever, shall intimate by registered

post to the State Bar Council on the rolls of which his

name is entered, of such suspension together with his

certificate of enrolment in original.

(2) Whenever any such advocate who has suspended his

practice desires to resume his practice, he shall apply to

the Secretary of the State Bar Council for resumption of

practice, along with an affidavit stating whether he has

incurred any of the disqualifications under Section 24A ,

Chapter III of the Act during the period of suspension.(3) The Enrolment Committee of the State Bar Council

may order the resumption of his practice and return the

certificate to him with necessary endorsement. If the

Enrolment Committee is of the view that the Advocate has

incurred any of the disqualifications the Committee shall

refer the matter under proviso to Section 26(1)of the Act.

http://fnopenglobalpopup%28%27/ba/disp.asp','156','1');http://fnopenglobalpopup%28%27/ba/disp.asp','156','1');http://fnopenglobalpopup%28%27/ba/disp.asp','156','1');http://fnopenglobalpopup%28%27/ba/disp.asp','142','1');http://fnopenglobalpopup%28%27/ba/disp.asp','142','1');http://fnopenglobalpopup%28%27/ba/disp.asp','142','1');http://fnopenglobalpopup%28%27/ba/disp.asp','144','1');http://fnopenglobalpopup%28%27/ba/disp.asp','144','1');http://fnopenglobalpopup%28%27/ba/disp.asp','144','1');http://fnopenglobalpopup%28%27/ba/disp.asp','142','1');http://fnopenglobalpopup%28%27/ba/disp.asp','156','1');


17/37

(4) On suspension and resumption of practice the

Secretary shall act in terms of Rule 24 of Part IX.

6. (1) An Advocate whose name has been removed by

order of the Supreme Court or a High Court or the Bar

Council as the case may be, shall not be entitled to

practice the profession of Law either before the Court and

authorities mentioned under Section 30 of the Act, or in

chambers, or otherwise.

(2) An Advocate who is under suspension, shall be under

same disability during the period of such suspension as an

Advocate whose name has been removed from the roll.

7. An officer after his retirement or otherwise ceasing to

be in service shall not practise for a period of two years in

the area in which he exercised jurisdiction for a period of

3 years before his retirement or otherwise ceasing to be

in service.

RESOLVED that nothing in these Rules shall prevent any

such person from practising in any Court or tribunal or

authority of superior jurisdiction to one in which he held

office.

Explanation: 'Officer' shall include a Judicial Officer,

Additional Judge of the High Court and Presiding Officer or

Member of the Tribunal or authority or such other Officer

or authority as referred to in Section 30 of the Act.

'Area' shall mean area in which the person concerned

exercising jurisdiction.

8. No Advocate shall be entitled to practice if in the

opinion of the Council he is suffering from such contagious

disease as makes the practice of Law a hazard to the

health of others. This disqualification shall last for such

period as the Council directs from time to time.

**********

http://fnopenglobalpopup%28%27/ba/disp.asp','150','1');http://fnopenglobalpopup%28%27/ba/disp.asp','150','1');http://fnopenglobalpopup%28%27/ba/disp.asp','150','1');http://fnopenglobalpopup%28%27/ba/disp.asp','150','1');http://fnopenglobalpopup%28%27/ba/disp.asp','150','1');http://fnopenglobalpopup%28%27/ba/disp.asp','150','1');http://fnopenglobalpopup%28%27/ba/disp.asp','150','1');http://fnopenglobalpopup%28%27/ba/disp.asp','150','1');


18/37

As can be seen that above Rules are prescribed pursuant to one’s

enrolment as an Advocate, however, the Impugned Rules mandate

certain precedents in order to practice. This apart, the Impugned Rules

are in contravention or deviation to aforesaid BCI Rules.

Re: Role and Roll of State Bar Councils

32. Because the Parliament while enacting the Act created agencies at

the State level as well as at the Central level in the form of State Bar

Councils and Bar Council of India and invested them with rule making

powers on diverse matters touching the legal profession, presumably

because it must have realised that matter pertaining to the profession are

best left to informed bodies comprising of members of the said

profession. However, while doing so it provided for basic substantive

matters, e.g., eligibility for entry into the profession (Section 24),

disqualification for enrolment (Section 24A), authority entitled to grant

admission (Sections 25 and 26), the authority which can remove any

name from the roll (Section 26A), etc., and placed them within the

domain of a State Bar Council. Thus it is the State Bar Council which

alone must decide on the question of enrolment of an applicant on its roll.

Every person whose name is entered in the list of advocates has a right

to practise in all courts including the Supreme Court, before any tribunal

or other authority. It is, therefore, within the exclusive domain of the State

Bar Councils to admit persons as advocates on their rolls or to remove

their names from the rolls. This right consciously invested by the

legislature on the 2nd Respondent, is being usurped by the 1st

Respondent.

33. Because as per section 6 of Act it is the function of the 2nd

Respondent to maintain the roll of Advocates. Under the scheme of the

Act, the legislature consciously created and vested exclusive powers of

the maintenance of the rolls on the State Bar Councils. Consciously,

under section 7 of the Act, the 1st Respondent was NOT vested with any

role in preparing and maintaining the rolls. The Impugned Rules infringe

upon the role of the State Bar Councils in so far as the enrolled

Advocates are being subjected to the unreasonable conditions imposed

under the Impugned Rules.


19/37

34. Because creating sub category and thereby inflicting disabilities

and discrimination within the enrolled Advocates is nothing but undue

interference into the roll maintenance function of the State Bar Councils.

The 1

st

Respondent Bar Council by interfering into the affairs of the StateBar Councils has breached the letter and spirit of the Act.

Re: Discrimination

35. Because the Rule 5 of the Impugned Rules provides that an

advocate shall not be entitled to practice law unless he holds a valid and

verified certificate of practice issued either under All India Bar

Examination Rules or under the Impugned Rules by all Advocates but

vitally excludes from its ambit two category of Advocates viz., Senior

Advocates and Advocates on Record of the Hon’ble Supreme Court of

India, in so far as Rule 5 provides that Senior Advocates designated

under Section 16 of the Act and the Advocates on Record of Supreme

Court of India shall not be required to fill up the form for Verification.

While it may be true that AORs and Senior Advocates have institutional

mechanisms for their appointment or designation, however, if the true

objective of the Rules is to see that non serious Advocates or those

engaged in business ventures, partnerships are kept out, then, they

should have included both the aforesaid categories. This shows that true

objective of the Impugned Rules is anything but the one mentioned in

their preamble. This is also highly illegal and discriminatory and violative

of Articles 14 and 19 of the Constitution of India.

36. Because the exclusion of AORs and Senior Advocates from the

ambit of the impugned Rules is highly arbitrary and discriminatory. Any

person, in order to be designated as Senior Advocate under the Act is

required to be enrolled with the State Bar Council. No separate

procedure or special exception or exemptions are carved out for the

Senior Advocates. Similarly, only Advocates enrolled with the State Bar

Council are qualified to be AORs. Hence, exemption these two classes of

Advocates are without any basis, rhyme or rationale.

37. Because it is true that before being designated as Senior Advocates

and being appointed as the AORs, there are institutional mechanisms


20/37

that ensure that Advocates are designated / appointed as Senior

Advocates or AORs. However, once any person is designated as AOR or

Senior Advocate, there are no mechanisms much less legislative

mechanisms or restrictions imposed under any law for the time beingforce to check or validate whether they are practicing or not. If the true

objective of the Impugned Rules is to separate the practicing Advocates

from the non-practising Advocates, then, it would not have excluded the

AORs and Senior Advocates from its ambit.

Re: Judicial Appointments

38. Because under the scheme of the Constitution of India and the Act or

any other law for the time being in force ever prescribes that practice of

an Advocate means and equals the physical appearance in courts or

filing vakalathnamas. Precisely therefore, for being appointed as the

Judge of any of the Constitutional Courts and the subordinate courts, the

physical appearance is not mandated. The Constitution as well as

legislature has clearly understood that the right of an Advocate flows from

his being enrolled as Advocate in the rolls of the Bar Councils. The recent

applications for the post of Civil Judge or any other notification/s, notified

after the publication of the Impugned Rules, reaffirm the correct position

of law. Utterly disregarding this correct position of law that non-litigious

and litigious Advocates are practicing Advocates and these artificial

schisms cannot be created in law. Hence, the Impugned Rules are bad in

law.

Re: Practice reduced to Vakalathnama

39. Because the Impugned Rules create an artificial distinction

between a practicing Advocate and a non-practicing Advocate. While

according to the impugned Rules, a person who has filed a single

vakalathnama in the year prior to publication of the Impugned Rules is

said to be a practicing Advocate and all those who have not filed a single

vakalathnama are non -pracitsing Advocates. It is highly absurd and

ludicrous to segregate Advocates on the basis of one vakalathnama or

for that matter a set of Vakalathnamas.


21/37

40. Because the right to practise the profession of law cannot be

reduced down to the act of filing one vakalathnama or be confined to

physical appearances in Courts / Tribunals / other authorities. The

function of practicing the profession of law includes giving legal adviceto a client, drafting, conveyance and providing any other form of legal

assistance. However, as per the Explanation to Rule 14 of the impugned

Rules, an Advocate shall be deemed to be in practice, ONLY if he is able

to establish that he has appeared in any Court of law or has filed

Vakalatnama even in one case before any Court of Law/other Forum in a

year before these Rules came into force. Excluding the lawyers engaged

in pleadings, drafting, conveyance, legal advice to a client, drafting

and providing any other form of legal assistance and practicing on non-

litigious matters is highly illegal, perverse and discriminatory.

41. Because drafting the case, settling it and filing it, attending office

objections, research work leading to such drafting, conveyance, advising

clients, client counseling, mediation, arbitration and conciliation, drafting

of rules, regulations, contract drafting and like activities is also practice.

By no stretch of imagination an Advocate undertaking these and many

more allied activities be treated as non-practising Advocate. Impugned

Rules are totally blind to any form of practice other than filing

vakalathnamas and/ or physical appearance in courts.

42. Because the bar to be created under the impugned Rules for non-

parctising advocates unless enrolled as an advocate cannot bar a person

from being enrolled as an advocate under section 29 of the Act for

practising the profession of law in non-litigious matters also.

43. Because the very object of the Act and the Rules framed by the 1st

respondent Bar Council of India are to ensure that the persons practising

the profession of law whether in litigious matters or in non litigious matters,

maintain high standards in professional conduct and etiquette and,

therefore, the persons practising in non litigious matters cannot excluded

from practicing merely because they are doing non-litigious matters alone.

44. Because as per Rule 33 of the CHAPTER - II Standards of

Professional Conduct and Etiquette (Rules under Section 49 (1) (c) of the

Act read with the Proviso thereto) of BCI Rules, an advocate who has, at


22/37

any time, advised in connection with the institution of a suit, appeal or

other matter or has drawn pleadings, or acted for a party, shall not act,

appear or plead for the opposite party. This shows that term practice

means and includes within its ambit the advising, drawing of the plaints tooand NOT just physical filing of vakalathnama and appearances in the

courts.

Re: Genus vs. Species

45. Because practising the profession of law involves a larger concept

whereas, practising before the Courts is only a part of that concept. In

other words, practice is genus and litigious and non-litigious matters are

species.

46. Because once a person is enrolled as an advocate under the Act, he

is entitled to practise the profession of law in litigious matters as well as

non-litigious matters. But non-consideration of practising in non-litigious

matter for issuing certificate of Practice, under the impugned Rules in ultra

virus the scheme of the Constitution of India and provisions of the Act.

47. Because it is settled in law that the practising the profession of law

involves a larger concept whereas, practicing before the Courts is only a

part of that concept. While practice is the genus and appearance or filingvakalathnama is species. However, under the Impugned Rules, the

species is being made genus. Therefore, the Impugned Rules are ultra

vires the Constitution of India and the law governing the Advocates

profession.

48. Because Rule 6(1) in Chapter III Part VI of the Bar Council of India

Rules framed under section 49(1) (ah) of the Act provides that an advocate

whose name has been removed by an order of the Supreme Court or a

High Court or the Bar Council as the case may be, shall not be entitled to

practise the profession of law either before the Court and authorities

mentioned under section 30 of the 1961 Act, or in chambers, or otherwise,

which clearly shows that the chamber practise, namely, practise in non

litigious matters is also a legal practice under the Act. Excluding the


23/37

practise in non litigious matters for granting the certificate of practice is per

se opposed to the scheme of the Act.

Re: Notaries, Oath Commissioners

49. Because the Impugned Rules impair the rights of the Notaries and

Oath Commissioners in so far as the Vakalathnama is made the basis for

certifying practicing Advocates. If this criterion of Vakalathnamas is

followed, Notaries and Oath Commissioners will cease to be practicing

Advocate and consequently be deprived of the right to vote or contest for

the Associations and Bar Councils. More importantly, the right of practice

of the Notaries and Oath Commissioners will be impaired. No Advocate,

including the Petitioner, therefore, can volunteer to be an Oath

Commissioner or Notary Public, under the Notaries Act, 1952. Under the

Notaries Act, 1952 and the Rules made thereunder, practicing advocates

alone are eligible to become Notaries apart from other qualified persons.

50. Because similar is the case with the Patent Attorneys, Sales Tax

Practitioners, Public Prosecutors, Central Government Standing

Counsels, who will all face disqualifications given the Vakalathnama

norms prescribed under the Impugned Rules is implemented. The Law

officers of the Governments are exempted from filing vakalathnamas and

are allowed to file Memorandum of Appearances only and hence, they

also do not come under the eligibility of getting certificate of Practice

based on the vakalathnamas they have filed. All these issues have been

totally overlooked while framing the impugned Rules.

Re: Drawing Parallels

51. Because as per the Act the enrolment as an Advocate in rolls of the

2nd Respondent or any State Bar Council automatically entitles an

individual to practice. On the other hand, in respect of laws governing othersimilarly situated professional bodies viz., Institute of Chartered

Accountants of India, Institutes of Company Secretaries of India, Institute

of Actuaries of India, Institute of Cost Accountants of India, there is a clear

cut separation of the Membership of the respective institutions with that of

certificate of practice. However, as per the Indian Medical Council Act,

1956, the profession and the membership of the Institute and certificate of

practice are similar to that of the Act. In sum, in case of the Medical and


24/37

Legal professions, the respective governing laws do not differentiate

between the membership of the respective professional body and their

practice of the profession. This conscious legislative treatment cannot be

subrogated through a subordinate legislation.

Re: Infringing Upon Voting Rights

52. Because prohibiting the voting rights and contesting rights in the

election of Bar Councils and Bar Associations through a subordinate

legislation, when the parent statute does not envisage any such thing is

highly illegal and arbitrary. Hence, the Impugned Rules are liable to be

quashed.

53. Because the Bar Associations are voluntary associations governed

by the respective legislation under which they have incorporated and

their respective Bye Laws, as regards the voting rights and contest of

elections. When the statutes under which Bar Associations are created or

their Bye Laws do not create any such restrictions as to the voting rights

and election contesting rights, the Impugned Rules, cannot provide for

the same. The automatic cessation of membership of Bar Associations

once an advocate becomes a non-practicing Advocate envisaged under

Rule 21.1 of the impugned Rules is also beyond the Rules making power

of the 1st respondent and is also arbitrary.

54. Because the Bar Associations are voluntary associations regulated

by their own Bye Laws made under the governing legislation. Such

Associations cannot be vested with the powers of issuing Verification

Certificates. The Act does not even recognize the Bar Associations;

hence, such Associations are not statutory in nature for the purposes of

and under the scheme of the Act.

55. Because as per Rule 6 of the Rules, an Advocate, after having

obtained a Certificate of Enrollment under section 22 of the Act is

required to get himself registered as a member of the Bar Association

where he ordinarily practices law or intends to practice law. And if any

Advocate does not intend to be a member of any Bar Association duly

recognized by concerned State Bar Council, then he shall be required to


25/37

intimate the same to the State Bar Council and he shall have to explain

as to how shall he be getting the benefits of any welfare scheme floated

by the State Bar Council or the Local Bar Association. It is also provided

that the decision of State Bar Council shall be final in this regard. Noindividual can be compelled by any law or Rules much less the Impugned

Rules to become a Member of any voluntary association. Moreover, such

voluntary associations are not even recognized under the scheme of the

Act. The Act provides for mere promotion of the Associations by the

Councils and NOT to designate them as statutory authorities for certifying

or verifying practice. Furthermore, an individual cannot be compelled to

disclose reasons why he or she does not want to become member of a

voluntary association. In fact, the right to practise in law granted under

Section 30 of the Act and other provisions of the Act cannot be denied to

the petitioner merely on the basis of his not becoming a member of a

voluntary association called as Bar Associations.

Re: ‘Special Field’ Associations

56. Because the Impugned Rules define a Bar Association to include

Bar Association exclusively dealing in specific fields of law viz. Income

Tax, Corporate Law, Central/State Excise Law etc. in relation to the

authorities/tribunals/boards etc. thereunder. Further, the Impugned Rules

empower these special field Associations with certain powers of

recognizing Advocates as practicing Advocates. If any member secures a

membership of any special field association or files only one vakalath a

year prior to the date of Impugned Rules publication, s/he can practice

any fields of law in any court. This is self defeating and self contradictory.

Hence, the Impugned Rules are arbitrary and hence, are liable to

quashed.


26/37

Re: Foster Animosity

57. Because Rule the 14 contemplates under the head “Objection

Petitions” that an advocate or any person may file an objection petitionbefore the 2

nd Respondent seeking to add the name/names of an

advocate/advocates in the List of Non-Practicing Advocates on the

ground that such an advocate has left law practice and that he/she has

no bona fide intent and interest in continuing it in future also. This kind of

arbitrary powers conferred under the Rules create animosity, inimical

attitude among the lawyers’ fraternity and moreover if opposite lawyers or

some third persons are allowed to lodge complaints in this regard, it will

give rise to a vexatious situation, which could be easily misused by the

opposite clients. This will greatly hamper the professional freedom of the

petitioner as an advocate and as an officer of a Court where he is

practicing.

Re: Creation of Tribunals under Rules

58. Because the Impugned Rules envisage creation of tribunals for

dispute adjudication as regards verification of practicing Advocates. The

Respondents are creatures of the Act and the Act only empowers dispute

resolution by the Respondents as regards professional misconduct. It is

beyond the competence of the Respondents to create tribunals much

less the ones envisaged under the Impugned Rules.

59. Because it is pertinent to note that the Respondents are envisaging

creating of Tribunals to try persons who are protesting against the Rules.

This is preposterous to curb the democratic rights of protest of any

individual to state the least. Furthermore, there is already an institutional

mechanism to adjudicate upon professional misconduct. Over and above

this, by creating certain rights ultra vires the Act, under a subordinate

legislation, the Respondent cannot create courts or tribunals to

adjudicate upon matters involving protests against the Impugned Rules.


27/37

Re: Privilege under Evidence Act

60. Because of the implementation of the Impugned Rules and due tothe possibility of branding the petitioner as a non-practising advocate, the

petitioner will be deprived of the privileges he is hitherto enjoyed under

Sections 126 and 129 of the Indian Evidence Act, 1872.

61. GROUNDS FOR INTERIM RELIEF

62. Because the Impugned Rules are prima facie illegal, untenable,

arbitrary, discriminatory and unconstitutional, if the Impugned Rules are

allowed to operate, the Petitioner will suffer great hardship. At the outset,

there is considerable ambiguity as to which Rules are applicable in so far

different Rules are published by Respondents herein. In fact, the Forms

that form the integral and inseparable part of the Rules are not published

in the Gazette of India. The Impugned Rules subjugate the statutory right

guaranteed under the Act to the discretion of the office bearers of a

voluntary Association which is not statutory for the purposes of the Act.

Unbridled powers are conferred on such non statutory body and the Bar

Council to curb and infringe upon every constitutional and statutorily

guaranteed right. This violation cannot be measured in terms of money.

The Petitioner has a good case on merits and has a fair chance of

succeeding in the matter. If the impugned Rules are not styed, the

petitioner will not able to get Certificate of Parctice under the impugned

Rules and he will be prohibited from practising in law since 12th July

2015, i.e. 6 months from the date of commencement of the impugned

Rules. This will put great hardship and injury to the petitioner.

63. The impugned Rules totally prohibits chamber practice and non-

litigious legal practice, practiced by non-litigious lawers and retiredJudges, especially retired Hon’ble justices of the Hon’ble Supreme Court

of India and Hon’ble High Courts, which is also against Article 19(1)(g) of

the Constitution of India.

64. There are no nexus between the declared objects sought to be

achieved by the impugned Rules and the provisions of the impugned


28/37

Rules. For detecting the non-practicing advocates and who have taken

other employment, a stipulation requiring the submission of copy of the

Income Tax Returns and an affidavit about one’s practice by each

advocate to the State Bar Council, once in five years or such otherintervals of time, would clearly identify who is really practicing law or who

has taken up employment or other vocation or who is alive or dead and

the object sought to be achieved by the impugned Rules would be

achieved, without any hassles. Further, the respondents can use the

technology and make available the data base of the advocates on the roll

in the internet so that any Court, tribunal or authority can easily verify the

antecedents of person acting before them as an advocate. Further, the

respondents may make arrangements to receive complaints from the

public and other advocates, Courts or tribunals etc. against any

advocate, who is suspected of as fake advocate, for verification. Even the

procedures contemplated under the impugned Rules have not

addressing the problem of fake advocates in any way.

65. The impugned Rules have unnecessary given importance to the

office bearers of the Bar Associations and control over advocates. An

Advocate cannot be compelled to prove one bonafides to an office bearer

of an Association much less a voluntary association, which is not even

statutory in nature

66. The impugned Rules compel advocates to become the members of

any one Bar Association, without any authority to do so, which is

arbitrary.

67. The impugned Rules are seeking explanation from advocates who

are not members of any Bar Association how they are going to get the

benefits of welfare schemes of the respondents, implying that getting the

benefits of the so called welfare schemes of the respondents are also

mandatory in nature. This is also illegal and arbitrary.

68. Because, all the provisions of the impugned Rules are arbitrary,

unreasonable, ultra virus to the provisions of the Act and also hit by

Article 14 and Article 19(1)(g) of the Constitution of India, the same is

unsustainable and liable to be struck down.


29/37

69. Because the scheme of the Constitution of India and Act there is

no distinction drawn between the litigious and non-litigious Advocates

and hence, the non-litigious lawyers have every right to participate in theaffairs of the Bar Councils and Bar Associations. In fact, the Constitution

of India confers every right on the non-litigious Advocates to occupy the

highest post of judiciary viz., Chief Justice of India. However, the

Impugned Rules seek to oust the non-litigious Advocates from the affairs

of the Bar Council and Bar Associations and thus, violate the scheme of

the Act and the Constitution of India.

70. Because the Petitioner has prima facie case on merits. If the

Impugned Rules are not stayed gross injustice would be caused to the

Petitioner which cannot be measured in terms of money. Per contra, no

injustice or prejudice would be caused to the Respondents. Balance of

convenience is in favour of the Petitioner and against the Respondent.

71. The grounds urged herein above are without prejudice to one

another. The Petitioner craves the leave of this Hon’ble Court to add or

amend or modify or delete any of aforesaid grounds at the time of

arguments.

72. PRAYER

73. WHEREFORE, it is most respectfully prayed that this Hon’ble

Court may be pleased to:

a) Call for records from the respondents;

b) Declare that the Certificate and place of Practice (Verification)

Rules, 2015, at ANNEXURE – A, as ultra virus the Advocates Act,

1961, totally unworkable and are highly unreasonable and

discriminatory in character and offending Article 14 and Article

19(1)(g) of the Constitution of India;

c) To issue a Writ of Certiorari or any other appropriate Writ, Order or

Direction and quash the Certificate and place of Practice


30/37

(Verification) Rules, 2015 notified vide Notification dated 12th

January, 2015 and published in Section 4 of the Gazette of India

(Extraordinary) dated 13th January, 2015, produced herein and

referred to hereinafter as ANNEXURE – A;

d) Grant costs of this petition and

e) Pass such other and incidental order/s including an order as to

costs, in the interest of justice and equity

74. INTERIM PRAYER

Pending final disposal of the present Petition on merits, this Hon’ble

Court may be pleased to stay the operation of the Certificate and

Place of Practice (Verification) Rules, 2015 notified vide Notification

dated 12th January, 2015 and published in Section 4 of the Gazette

of India (Extraordinary) dated 13th January, 2015, at ANNEXURE –

A, in the interest of justice and equity.

Date:

Place: Advocate for the Petitioner

Address for Service

Shridhar Prabhu AdvocateLink Legal India Law Services

No. 10, First Floor, 12th Main, Palace Road, Vasanth Nagar,

Bengaluru - 560 052, India

T: +91 (80) 4123 1072│ +91 (80) 4123 1073│ Email: [email protected]

mailto:[email protected]:[email protected]:[email protected]:[email protected]


31/37

IN THE HIGH COURT OF KARNATAKA AT BENGALURU


WRIT PETITION No. /2015 (GM- )

BETWEEN:

Mr. A. P. RANGANATHA …Petitioner

AND

BAR COUNCIL OF INDIA AND ANOTHER …Respondents

AFFIDAVIT

I, A.P. Ranganatha, son of Padmanabha, aged about 41 years, Advocate

by profession, residing at Agara Village, Tataguni Post, Bangalore South

Taluk, Bangalore Urban District, do hereby solemnly affirm and state on

oath as under:

1. I am the Petitioner in the above case and am conversant with the

facts herein and hence, am competent to depose to this Affidavit

2. I state that averments made in paragraphs 1 to are true to the

best of my knowledge, information and belief and Paragraphs *** to

*** are based on the information and nothing material is concealed

therefrom.

3. I state that Annexure A to Annexure are true copies of their

respective originals.

All this is true

Date

Place: Bengaluru Deponent

Identified by:


32/37




BETWEEN:

Mr. A. P. RANGANATHA …Applicant / Petitioner

AND


AFFIDAVIT

I, A.P. Ranganatha, son of Padmanabha, aged about 41 years,

Advocate by profession, residing at Agara Village, Tataguni Post,

Bangalore South Taluk, Bangalore Urban District, do hereby

solemnly affirm and state on oath as under:

1. I am the Petitioner in the above case and am conversant

with the facts herein and hence, am competent to depose to

this Affidavit.

2. I pray that this Affidavit and the Interlocutory Application

accompanying this Affidavit may be read as part and parcel

of the Memorandum of Writ Petition filed by me.

3. I state that I am challenging the constitutional validity and

legality of the Certificate and place of Practice (Verification)

Rules, 2015 passed by the 1st Respondent herein, produced

at Annexure -A to the Writ Petition.

4. I state that despite due diligence, I could not secure the

original Gazette of India in which the aforesaid Rules are

published. I undertake the secure the same produce before


33/37

this Hon’ble Court within eight weeks from the date of filing

of this Petition.

5. Wherefore, I pray that the accompanying application may beallowed, as prayed.

6. I state that what is stated in paragraphs 1 to 6 hereinabove

is true to the best of my information, knowledge and belief

and nothing material is concealed therefrom.

All this is true

Date:

Place: Bengaluru Deponent


34/37




BETWEEN:

Mr. A. P. RANGANATHA … Petitioner

AND


CHRONOLOGY OF EVENTS AND SYNOPSIS

Sl.

No.

Date Event

1. 1961 Advocates Act, 1961 comes into

force without section 30

2. 06t September,

1975

The Bar Council of India Rules, as

revised were published in the

Gazette of India in Part III, Section

4 (pages 1671 to 1697)

1995 The 1st Respondent framed Bar

Council of India Training Rules,

1995

1999 Hon’ble Supreme Court of India

struck down the Bar Council of

India Training Rules, 1995 as

unconstitutional and illegal

15t June, 2011 Section 30 of the Advocates Act,

1961 comes into effect

2014 Bar Council of India Certificate of

Practice and Renewal Rules 2014

framed by 1st Respondent but after

severe opposition from all quarters

the said rules were annulled.

12t January, 2015 A resolution is passed for

notification of Certificate and place


35/37

of Practice (Verification) Rules,

2015 (the “Impugned Rules”)

13t January, 2015 Impugned Rules were published

vide in Section 4 of the Gazette ofIndia (Extraordinary)

29t January, 2015 The 1st Respondent published a

version of the Bar Council of India

Certificate and place of Practice

(Verification) Rules, 2015, on its

official website, which was in

variance to the one earlier

published in the Gazette of India

April, 2015 The 2n

Respondent a version of

the Certificate and place of

Practice (Verification) Rules, 2015,

on its official website, which was in

variance to the one earlier

published in the Gazette of India

by the 1st Respondent and also the

one published by the 1st

Respondent on its website

20t April, 2015 This Writ Petition is filed

The Petitioner is a citizen of India and an Advocate enrolled with the roll

maintained by the 2nd

Respondent herein, under the Enrollment Number:

571 of 1999. Ever since his enrolment, the Petitioner has been practicing

before this Hon’ble Court and its subordinate cour ts in the State of

Karnataka.

In the later part of the year 2014, the 1st Respondent had passed rules

known as On 12th January, 2015, the 1st Respondent initially passed a

resolution to notify and published Bar Council of India Certificate of

Practice and Renewal Rules 2014. After severe valid opposition from all

quarters the said 2014 Rules were scrapped and replaced by the same

by Bar Council of India Certificate and place of Practice (Verification)

Rules, 2015 the (“Impugned Rules”). The said Impugned Rules were

published in the Extraordinary Gazette of India on 13th January, 2015.


36/37

Later, on 29th January, 2015, in variance to the Impugned Rules, the 1

st

Respondent has published certain forms, enclosures containing new

terms and conditions in its official website. Thereafter, in April, 2015, the

2

nd

Respondent published on its official website (and also published abooklet and circulated it widely) another version of the Rules, which

contain some other forms and enclosures. In gist, there is large-scale

confusion and ambiguity as to which are the actual Rules which one need

to comply with.

Be that as it may, going by the version of the Impugned Rules, published in

the Gazette, it is noticed that certain forms and declarations have to be

filed by the Advocates. Interestingly, there the forms and enclosures to the

Impugned Rules are NOT published in the Gazette of India. Further, the

Impugned Rules are opposed to the scheme of the Act as well as the

Constitution of India as they seek to make an unjust discrimination

between the litigious and non litigious Advocates and oust all those

practicing in non-litigious matters from the affairs of the Association and

Councils. Section 30 of the Advocates Act, 1961 is rendered otiose and

rights of the Advocates are being made subjugated to the wills and

discretion of a few individuals. Practice of law is being restricted to filing of

one or more Vakalathnamas. The rights of the members of the

Associations, being hitherto governed respective legislation viz., Societies

Registration Act, is now made subservient to rules, framed without any rule

making authority. There is large scale discrimination and schism crafted

and created under the Rules and same classes of Advocates are being

discriminated against one another, thereby violating section 29 of the

Advocates Act, 1961. It is settled in law that the practising the profession of

law involves a larger concept whereas, practising before the Courts is only

a part of that concept. While practice is the genus and appearance or filing

vakalathnama is species. However, under the Impugned Rules, the

species is being made genus. Therefore, the Impugned Rules are ultra

vires the Constitution of India and the law governing the Advocates

profession.

Hence this Writ Petition.


37/37



IA No 1 of 2015

In

WRIT PETITION No. /2015 (GM-RES)

BETWEEN:

Mr. A. P. RANGANATHA … Applicant / Petitioner

AND


INTERLOCUTORY APPLICATION UNDER SECTION 151 OFTHE CODE OF CIVIL PROCEDURE, 1908

For the reasons mentioned in the accompanying Affidavit, this

Hon’ble Court may be pleased to dispense with the production of

the original Gazette Publication of the Certificate and place of

Practice (Verification) Rules, 2015 (the “Impugned Rules”) passed

and notified vide Notification dated 12th January, 2015 and

published in Section 4 of the Gazette of India (Extraordinary) dated

13th January, 2015, produced along with the Writ Petition as

Annexure A for a period of eight weeks from the date of admission

of this Writ Petition, in the interest of justice and equity.

Date: 20th April, 2015

Place: Bengaluru Advocate for the Applicant / Petitioner

BCI Practice Rules Writ

Documents

Transcript of BCI Practice Rules Writ