Membership Of Bar Associations Voluntary, Can't Restrict Lawyer From Practicing: Telangana High Court Reads Down BCI Rule

The Telangana High Court read down Rule 6 of the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015 and held that membership in a Bar Association cannot be made compulsory for advocates and non-membership shall not disentitle or restrict an advocate from practising law. A Single Judge Bench of Justice N. Tukaramji observed:“Rule 6 cannot be interpreted or enforced in a manner that renders membership in a Bar Association compulsory or delegates regulatory control over the right to practice to non-statutory bodies. To that extent, any coercive or mandatory interpretation would be ultra vires the Advocates Act, 1961 and violative of Articles 19(1)(c) and 19(1)(g) of the Constitution of India. Further, as a regulatory provision, Rule 6 merely provides an option to the Advocate and serves a legitimate objective of welfare and identification. Interpreted in this manner, the rule would be intra vires the Act, 1961 and constitutionally valid.”The Court was dealing with a writ petition filed by advocate Vijay Gopal challenging the constitutional validity of Rule 6 of the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015.The petitioner contended that Rule 6 effectively compelled advocates to become members of Bar Associations and imposed recurring certification and verification requirements not contemplated under the Advocates Act, 1961. He argued that the statutory right to practice law, conferred upon an enrolled advocate under Sections 22, 30 and 33 of the Act, could not be subjected to mandatory membership of any Bar Association. It was further argued that the impugned rule violated Articles 19(1)(c) and 19(1)(g) of the Constitution, since the freedom to form associations also includes the right not to associate.Reliance was placed on the Supreme Court's decision in Gaurav Kumar v. Union of India to contend that delegated legislation cannot create substantive obligations not envisaged by the parent statute. The petitioner also relied on Damayanti Naranga v. Union of India to submit that compulsory association infringes the freedom guaranteed under Article 19(1)(c).The Bar Council of India and the Bar Council of Telangana opposed the plea, arguing that Rule 6 was a regulatory measure framed under Section 49(1)(ah) of the Advocates Act, 1961. They submitted that the provision was intended to identify genuine practitioners and facilitate welfare schemes for advocates. According to the respondents, Rule 6 does not mandate Bar Association membership; rather, it gives an advocate the option either to join a recognised Bar Association or to intimate the State Bar Council regarding non-membership and explain how welfare benefits would be availed.Examining the scheme of the Advocates Act, the Court noted that Sections 29, 30 and 33 recognise advocates as the only class of persons entitled to practice law and that the Act does not expressly make Bar Association membership a condition precedent for exercising that right.At the same time, the Court observed that Section 49(1)(ah) empowers the Bar Council of India to prescribe conditions subject to which an advocate may practice law. Therefore, the validity of Rule 6 depended on whether it imposed merely regulatory conditions consistent with the object of the Act or created substantive obligations beyond the parent statute.After extracting Rule 6 in full, the Court held that a plain reading of the provision showed that membership in a Bar Association is not mandatory. Instead, the rule merely affords an advocate an option either to join a Bar Association or to intimate the State Bar Council about non-membership for the purpose of availing welfare benefits.“A plain reading of Rule 6 indicates that membership in a Bar Association is not mandatory. The provision merely affords an option to an Advocate either to join a Bar Association or, in the alternative, to intimate the State Bar Council regarding such non-membership for the purpose of availing welfare benefits,” the Court observed.The Court further held that, when interpreted in that manner, the rule falls within the ambit of Sections 6, 7 and 49(1)(ah) of the Advocates Act and serves the legitimate purpose of “identifying genuine practitioners and facilitating the implementation of welfare schemes.”Justice Tukaramji also relied upon a Division Bench judgment of the Telangana High Court which had upheld the requirement of a certificate of practice. The Division Bench had observed that the purpose of such certification was to ensure that an advocate was actually practising before the concerned court and that the requirement could not be termed unconstitutional merely because it caused inconvenience.Significantly, the Court clarified that Bar Associations cannot be vested, directly or indirectly, with regulatory authority over an advocate's right to practice. Any interpretation of Rule 6 that makes membership compulsory or subjects the right to practice to the...

Membership Of Bar Associations Voluntary, Can't Restrict Lawyer From Practicing: Telangana High Court Reads Down BCI Rule

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Membership Of Bar Associations Voluntary, Can't Restrict Lawyer From Practicing: Telangana High Court Reads Down BCI Rule

Ananya Tangri

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