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Madras HC To Suo Motu Test Constitutional Validity Of Section 36B Of The Advocates Act [Read Order]

LIVELAW NEWS NETWORK
2 March 2020 8:10 AM GMT
Madras HC To Suo Motu Test Constitutional Validity Of Section 36B Of The Advocates Act [Read Order]
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The Madras High Court has decided to suo moto consider the vires of Section 36B of the Advocates Act, 1961, inasmuch as it stipulates that in case a Disciplinary inquiry against an Advocate is not completed by the State Bar Council within stipulate time, the same shall stand transferred to the Bar Council of India.

"In the opinion of this Court, the provision under Section 36B in the statute insofar as it enables transfer of case from the file of the State Bar Council to the file of the Bar Council of India, in the event of the State Bar Council not disposing of the case within a period of one year, causes grave injustice to the aggrieved parties. As this Court has no power to direct the Parliament to delete the aforesaid portion in Section 36B of the Advocates Act, this Court, suo motu, would like to consider the vires of the aforesaid portion alone, as it appears to be violative of the rights of the litigants guaranteed under Article 14 of the Constitution of India, besides being unreasonable and arbitrary and appears to have lost its purpose and rationality," the bench comprising Justice N Kirubakaran and Justice R Pongiappan said.

Section 36B(2) stipulates that the disciplinary committee of a State Bar Council shall dispose of a disciplinary matter against an advocate within a period of one year from the date of the receipt of the complaint or, as the case may be the date of initiation of the proceedings at the instance of the State Bar Council, whichever is later, failing which such other proceedings shall stand transferred to the Bar Council of India.

The provision was inserted in the Act by way of an amendment in 1973 to ensure that the complaints against the advocates are disposed of expeditiously. However, the court observed, "the Bar Councils of the respective States are taking advantage of the said provision and doing injustice to the complainants by transferring their complaints to the file of the Bar Council of India, New Delhi deliberately. Thus, the very purpose of the provision is frustrated. In view of the attitude of the State Bar Council, Section 36B of the Advocates Act, 1961 appears to be against the interests of the aggrieved complainants."

The court further observed that the impugned provision causes undue burden on the concerned Advocates to travel to New Delhi, even in cases where the delay in disposal was not the fault of the Advocate concerned.

"The delay in disposal of the complaint may occur due to so many factors at the instance of some parties. In the instant case, the petitioner has not committed any wrong or he has not dragged on the proceedings. Hence, the petitioner cannot be unnecessarily dragged to New Delhi. Hence, the transfer of the proceedings to New Delhi would prima facie do injustice to the petitioner," the court said.

It was hearing a petition filed by one PL Sundar whose case was kept pending the State Bar Council "for more than 3 years without conducting enquiry".

Thus allowing his petition seeking to direct the Bar Council of India to extend the time period for completing the disciplinary proceedings pending against him before the Bar Council of Tamil Nadu, the bench observed,

"The petitioner herein has not committed any wrong and if the matter is transferred to the file of Bar Council of India, the petitioner may not have the money power to travel to New Delhi to contest the proceedings. Moreover, it is not the fault of the petitioner and if at all, it is only the fault of the Bar Council of Tamil Nadu and Puducherry for keeping the matter for more than 3 years without conducting enquiry and dispose of the matter…Hence, the petitioner cannot be unnecessarily dragged to New Delhi. Hence, the transfer of the proceedings to New Delhi would prima facie do injustice to the petitioner."

The court noted that the Petitioner's was not the only case and that the Bar Council of Tamil Nadu had been keeping numerous cases pending, for no justifiable reason.

"It is evident from many cases listed before this Court that the Bar Council of Tamil Nadu and Puducherry is not exercising its statutory duty and disposing the complaint within the stipulated period of one year. There is every reason to believe that it is being done deliberately to ensure that Section 36B of the Advocates Act, 1961 could be invoked and the complaints could be transferred to Bar Council of India," it observed.

It has therefore asked the Bar Council of Tamil Nadu to appraise it with the number of complaints pending before it along with the reasons for the delay in not disposing the complaints within one year.

The court has also directed that apart from the Petitioner's case, other complaints also that were to be transferred from the Bar Council of Tamil Nadu to the file of Bar Council of India will not be transferred until further orders.

"It is not only the case of the petitioner but also many other complaints filed by various other persons are sought to be transferred under Section 36B of the Advocates Act, 1961 for non-disposal of the cases within the stipulated time period of one year. In that event, all the parties would definitely be put to unnecessary hardship. Already the parties are distressed or their rights have been allegedly violated by the respective counsels against whom they have preferred the complaints. In these circumstances, if the parties are directed to go to New Delhi which is 2200 kms away from Chennai to pursue the complaints, it would be impossible for the poor litigants. They would be put to untold hardship and grave injustice would be caused to them.

…Therefore, there shall be a direction to the Bar Council of Tamil Nadu and Puducherry to not to transfer any of the cases under Section 36B of the Advocates Act, 1961 to the file of Bar Council of India until further orders from this Court," it held.

Case Details:

Case Title: PL Sundar v. Bar Council of India & Ors.

Case No.: WP No. 3610/2020

Quorum: Justice N Kirubakaran and Justice R Pongiappan

Appearance: Advocate SR Rakhunathan, Standing Counsel for Bar Council of India and Advocate MR Jothimanian, Standing Counsel for Bar Council of Tamil Nadu

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