'Faulty, Needs To Be Read Down': Delhi High Court Questions Disciplinary Action Process Under BCI's Foreign Law Firms Rules

The Delhi High Court on Thursday questioned the process of disciplinary proceedings and imposition of penalties enumerated under the Bar Council of India's Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022.

A division bench comprising Chief Justice DK Upadhyaya and Justice Tushar Rao Gedela said that prima facie, it is beyond comprehension, that in case the purpose of conducting the preliminary inquiry under the Rules is to assess the merits of allegations against the foreign lawyer or law firm alone, then how can penalty like suspension of their registration be imposed directly without any further inquiry.

“In case the Rules envisage only one inquiry termed as preliminary inquiry, in that case foreign lawyer or law firm needs to be given opportunity of hearing and producing evidence and responding to the allegations. Such opportunity would include providing documents on the basis of which inquiry is initiated,” the Court said.

The Court was dealing with a plea filed by one Avimukt Dar and others, aggrieved with the process initiated against them for disciplinary action under the Rules.

During the hearing today, Justice Gedela remarked that while BCI's powers were not being questioned, however service jurisprudence normally has two stages- a preliminary inquiry followed by issuance of show cause notice which is proceeded with in case a prima facie case is made out on the allegations.

“Here you are not doing that. First you conduct a preliminary inquiry, without anything, you say if you find (merits in allegations), you will impose penalties, minor or major,” the judge said.

Adding to this, CJ said: “There is nothing like preliminary inquiry in these Rules. These Rules are faulty…. Once you assess the merits of allegations then full fledged inquiry must start. If you come to a prima facie satisfaction on that basis alone you can suspend or confiscate the certificate of practice. How can you do all this?”

Senior Advocate Amit Sibal appearing for the petitioners submitted that the Rules are causing “huge confusion”.

“Nobody knows what they mean. There is a much larger problem. The Rules were brought to bring clarity but the result is opposite,” he said.

Questioning BCI's counsel over the Rules, CJ Upadhyaya said:

“How will these Rules operate? You talk about preliminary inquiry to assess merits of allegations. Once you assess, either you drop the proceedings or you proceed further. Where is the proceed further procedure provided here?…. What kind of Rules are they?”

“We expect you to do something about this. No doubt that preliminary inquiry report need not be shared but you are calling them with evidence and then imposing penalties. This doesn't seem to be going well. It cannot be,” Justice Gedela said.

Sibal informed the Court that a show cause notice was issued to the petitioner on August 05 requiring them to file their response to the allegations. It stated that a written response has to be filed by petitioners.

In response to the said show cause notice, Sibal said that the petitioners requested for providing the material and documents on which the show cause notice was based.

However, Sibal said, that without providing the said documents, a notice was issued by BCI on November 04 requiring personal appearance of the petitioners on November 16 for participating in the proceedings.

He contended that without the material which is the basis of the show cause notice being made available to the petitioners, they were deprived of the right of effective reply.

Issuing notice on the plea, the Court said that in case the inquiry being conducted by BCI is the only inquiry under the Rules, then the principles of natural justice warrant that material relied upon by BCI for conducting inquiry and levelling allegations, the same should be provided to the petitioners.

“We will have to perhaps read down the Rule. Preliminary inquiry word is not done. It should be inquiry.… Either they should amend it or it needs to be read down,” CJ said.

The Court asked BCI counsel to obtain instructions on the Rules, and said that in the meantime, the proceedings before the BCI against the petitioners on November 16 be deferred.

It asked the petitioners to submit the documents mentioned by BCI in its show cause notice and directed BCI to not take a final decision in the matter.

The case will now be heard on November 18.

Title: Avimukt Dar & Ors v. Bar Council of India & Anr