In the quest for justice, not every voice is heard, some are ignored and several others subdued. It is often weak and powerless whose voices fail to attract the attention of those placed in a position to determine and dispense justice. The subjugation of voices which threaten to expose the misuse of power or which attempt to provide relief to those ostracised by society is not unheard of. However, such subjugation of the marginalized discourses, if allowed to go on unabated, threatens to shake the very foundations of inclusiveness, justice, and fairness on which a democracy is built.
On October 5, 2015, the Bastar Bar Association in its General Body Meeting passed a resolution prohibiting any lawyer who is not enrolled in the State Bar Council or enrolled in the local bar from practicing in the local Court. The Jagdalpur Legal Aid Group which was established in 2013 and has ever since been working for the cause of the Adivasis in Chhattisgarh has been greatly affected by this resolution. The lawyers in the Group are enrolled with the Delhi State Bar Council and have, since the resolution, been prevented from practicing in the Chhattisgarh High Courts. (The letter from JagLAG chronicling the events can be accessed here) The recent events in Chhattisgarh have led us to consider the legality of the Bar Association’s resolution that has been discussed in this blog post. Can advocates not registered with the Chhattisgarh State Bar Council practice in the Courts of Chhattisgarh and does the Bastar Bar Association (or any other Bar Association in Chhattisgarh) have the authority to pass a resolution making such prohibitions on a practice by advocates?
According to Section 30 of the Advocate’s Act, 1961 “an advocate whose name is enrolled in the State roll has the right to practice throughout the territory to which this Act extends…” However, the right to practice under Section 30 is not absolute but is subject to restrictions that may be imposed by the Bar Council of India, the State Bar Councils, the Supreme Court, and the High Courts under the Advocates Act. In V Sudeer v. Bar Council of India, the Supreme Court further held that such rules framed by these authorities cannot abrogate the right to practice itself but can only lay down the conditions that need to be fulfilled in order to make a lawyer eligible to practice before a Court.
The Bar Council of India Rules in Chapter III of Part V states that “every advocate shall be under an obligation to see that his name appears on the role 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 role of the State Bar Council within whose jurisdiction he is ordinarily practicing within six months of the start of such practice, he or she shall be deemed guilty of professional misconduct within the meaning of Section 35 of the Advocates Act.” The word ‘advocate’ in this rule includes advocates enrolled in the State roll and is thus, applicable to the advocates of Chhattisgarh.
In addition to these Rules, the High Courts of states have also been given the power under Sec. 34 of the Advocates Act to lay down the conditions subject to which an advocate shall be permitted to practice in the High Court and subordinate courts in that state. The Chhattisgarh High Court Rules 2007, under Rule 262 states that, “an advocate who is not on the State roll of Advocates of the State in which the court is situated, shall not appear, act or plead in such court, unless he files an appointment along with an advocate who is on the role of such State Bar Council and who is ordinarily practicing in such court”. Thus, the Chhattisgarh High Court Rules reiterate the principle laid down by the BCI Rules, but also provide an exception that an advocate not enrolled in the State Bar Council could practice by filing an appointment alongside a Chhattisgarh State enrolled advocate. This procedure was indeed being followed by the Group’s lawyers.
Thus the resolution passed by the Bastar Bar Association is not binding on the judiciary/ judicial officers or lawyers and is per se illegal. Any attempt by the Bar Association of Bastar to enforce the resolution and prevent the judiciary or judicial officers from hearing the lawyers of the Group would amount to obstruction of the functioning of the judiciary and contempt of Court.
Unfortunately, the lawyers of the Jagdalpur Legal Aid Group are still being prohibited from practicing in the Courts of Chhattisgarh on the basis of this illegal resolution. It is ironical that a resolution which can neither prove its legal validity nor lay claim to being serving the ends of social justice has left the fate of several Adivasis uncertain and bleak while their legal representatives fight to protect both their own right to defend and the rights of those whom they defend. This resolution needs to be challenged and the issue should be addressed heads on if the Jagdalpur Legal Aid Group wants to establish its legitimacy and strength in the region.