SUB-CLASSIFICATION ON BASIS OF DOMICILE & DELHI ADVOCATE WELFARE SCHEME
Shubham Budhiraja[1]
The Delhi Govt. constituted
committee to recommend on scheme to appreciate the role of advocates and to
constitute a welfare scheme for them. The committee recommendations were
accepted and Delhi CM Welfare scheme for Advocates brought into force. The
conditions for getting benefit of this scheme were as follows:
(I)
Enrolled with Bar council of Delhi
(II) Member of any bar association such as Patiala
House bar association, NCLT Bar association, Delhi HC bar association, etc.
(III)
Must be resident of Delhi
The 3rd condition was challenged as arbitrary in a Writ
Jurisdiction under Article 226 before High Court of Delhi. The Court held that though sub-classification of a class
(i.e. Advocate enrolled with Delhi is a class & must be resident in Delhi
is a sub-class) on basis of domicile is not prohibition under Article 14 but
that classification must have a nexus with objects sought to be achieved
otherwise it is arbitrary and liable to be struck-off on basis of Article 14.
In present case, the object sought to be achieved is to recognize role of
advocates but the classification giving benefit only to residents. The practical
situation of many advocates practicing in Delhi is that they hail from all near
cities i.e. NCR region because many cannot afford housing in Delhi or it is too
congested. They all contribute to
revenue generation of this city and therefore to exclude them from benefit will
not result into achieving the objects of the scheme. Hence, sub-classification
is arbitrary and thus struck off. Also, there is no hard & fast rule that
court cannot at all interfere with administrative policy decision of executive.
The court also remarked that Bar council of Delhi has failed to implement
Advocate welfare fund act, 2001 despite that there are adequate fund available.
Since the fund shared by Delhi Govt. is mere 50 Crore. Thus, BCD must also
contribute therein either on own or through advocates.
Advocates Act, 1961 & Bar
Council Rules
(I)
Advocates who are on the roll of a State Bar
Council are subject
to the supervision and disciplinary control of the said State Bar Council.
The State Bar Council has the power to entertain and consider complaints
against an advocate. Under Section 35 of the Advocates Act, 1961, upon
consideration of any complaint, the disciplinary committee of the State Bar
Council can dismiss the complaint, reprimand the advocate or even resort to the
extreme step of removing the name of the advocate from the roll of advocates.
If an advocate’s name is removed from the roll of advocates by any State Bar
Council, no other bar council can permit such an advocate to be enrolled in
their bar council.
(II)
Apart from the disciplinary committees of the
State Bar Councils, the Bar Council of India (hereinafter,
‘BCI’) also has disciplinary powers over advocates. In
addition to the provisions of the Advocates Act, 1961, the BCI is governed by
its own rules, namely, the Bar Council of India Rules, 1975, which were last
amended in 2020
(III)
The Bar Council of Delhi Rules, 1963 are quite extensive
and the relevant rules. The Admission form requires the advocate to express
their intention to practice as an advocate within the jurisdiction of the BCD. In
the application form to be filed with the BCD, the permanent address as also
the temporary/present address is sought. The other declarations which are
sought are that the person proposes to practice law within the State of Delhi.
(IV)
Apart from the provisions of the Advocates Act,
1961 and the Bar Council of Delhi Rules, 1963 the Bar Council of India has also enacted the
Bar Council of India Certificate and Place of Practice (Verification) Rules,
2015 (hereinafter, “BCIPP Rules”). Under Rule 5 of these rules, the BCI issues a
certificate of practice to advocates after they qualify the All India Bar
Examination. Under Rule 6, an advocate needs to be a member of
the bar association where he or she normally practices law. Under Rule 6.2, if
an advocate leaves one bar association and joins another, due to change of
place of practice or by reason of change of field of law, intimation of this
would need to be given to the State Bar Council. As per these Rules, the verification of lawyers
is conducted by the bar councils and the certificate of practice is only valid
for a period of five years
(V)
A conjoint reading of the provisions of the
Advocates Act, 1961, the Bar Council of Delhi Rules, 1963 and the BCIPP Rules
shows that insofar as advocates are concerned, primacy is given to the place of practice
and not to the place of residence of the advocate. An advocate
is entitled to register in the State where he/she intends to primarily
practice. The reason for this is that an advocate may have a permanent place of
residence in any part of the country but choose to practice in a different
geographical area. There are advocates who may want to specialize before
particular forums and may choose to reside in the place where that court,
forum, tribunal, authority etc. is located. Financial constraints could also compel advocates to not live
in a metropolitan area but still practice in the said metropolitan area. So
long as the advocate intends to regularly practice in a particular geographical
territory, he/she is entitled to enroll with the Bar Council of that State/
Union Territory. Upon enrolling with a particular Bar Council,
the advocate is governed and controlled by the rules and regulations of the
said Bar Council. In none of these statutory provisions or rules is any
importance given to the place of residence of the advocate. The address of the
advocate is sought only as a means of information and the same can be changed
with intimation being given to the Bar Council. Thus, the place of residence of the advocate does not
affect the status of the advocate or take away the right of the advocate to
practice in a particular jurisdiction
Judicial Review of Policy decisions
(I)
The Courts may interfere in a policy decision of
the Government,
-
if the
same violates the fundamental rights of the citizens,
-
is opposed to the provisions of the
Constitution,
-
is opposed to any statutory provision or
-
is manifestly arbitrary
(II)
The contention that Courts cannot at all
interfere in policy matters or fix the contours of such policy decisions, would
thus not be tenable. Almost all decisions of governments taken as executive
decisions would involve policy matters. Such decisions would be
amenable to judicial review, if it is seen that the same is either
discriminatory or arbitrary. There cannot be a hard and fast rule that in a welfare
scheme, Courts cannot interfere, even if they are violative of the rights of a
section of the citizens.
Domicile as a class
(I)
In
Social Jurist, A Civil Rights Group v. Government of NCT of Delhi & Anr.
(2018) 253 DLT 466 has, in fact, struck down a
similar condition while dealing with hospital services for non-Delhi residents.
The Court has clearly observed that the condition imposed by a Government hospital in Delhi that its
services would not be available for a patient who does not hold a voter ID card
of Delhi is liable to be struck down.
The Advocates Welfare Fund Act,
2001
(I)
The Advocates Welfare Fund Act, 2001 has not been implemented
till date. The purpose of enactment of the said Act was to
provide social security, especially to junior lawyers, indigent and
disabled lawyers. The provisions in the various Bar Council
statutes were considered insufficient to provide financial assistance and
launch welfare schemes for indigent, disabled or other advocates. The Act
contemplates the creation of a `Welfare
Fund’ for advocates and the constitution of a trustee committee for the
implementation of the fund. Section 24 envisages obtaining of
insurance for members of the fund.
(II)
The Advocates Welfare Fund Act, 2001 has not been able to achieve
insurance for the entire group of advocates enrolled with the BCD.
Therefore, the Scheme provided by the GNCTD deserves to be
lauded for recognizing the need of advocates who belong to various strata of
society for having insurance for
themselves and their families
(III)
Considering that the total outlay sanctioned by
Delhi Govt. at the moment is only Rs.50 crores, the Scheme having been extended
to all advocates who are enrolled with the BCD, while availing the insurance
for such advocates, there could be some deficit of funds
(IV)
From the data filed by the BCD, it is clear that
the BCD has
funds to contribute to the Scheme, though the same may not be fully sufficient
to fund the entire Scheme. The Advocates Welfare Fund Act, 2001
having been enacted for the purpose of welfare of Advocates, the said Fund ought to be
utilized to support the Scheme for insurance.
(V)
Thus, in order to ensure that the utilization of
funds is streamlined and the purpose for which the fund was created is at least
partially satisfied, the BCD would be liable to share some part of the responsibility
for insurance of advocates.
(VI)
The annual premium amount for each advocate for
both life insurance and Med claim for four members of the family i.e.,
advocate, spouse and two dependent children up to the age of 25 years, is in
the range of Rs.14,000/-. Thus, the burden on each advocate, even if some
contribution is made by them, is not likely to be very high. Thus, the BCD either by
itself or by receiving contributions from the advocates themselves ought to
willingly share the burden.
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