Delhi High Court
Ananya Bajpai & Anr. vs Bar Council Of Delhi on 22 February, 2021
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:05.03.2021
23:29:06
$~6 & 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 22nd February, 2021
+ W.P.(C) 5732/2020 & CM APPL. 20717/2020 & 24320/2020
ANANYA BAJPAI & ANR. ..... Petitioners
Through: Mr. Abhijat, Ms. Sanam Tripathi and
Mr. Shaaswat Jindal, Advocates.
versus
BAR COUNCIL OF DELHI ..... Respondent
Through: Mr. Ajayinder Sangwan, Advocate.
With
+ W.P.(C) 9862/2020 & CM APPL. 33595/2020
ABHISHEK ANAND & ORS. ..... Petitioners
Through: Mr. Abhishek Anand, Petitioner in
person with Mr. Gaurav Kumar, Ms.
Priya Ranjan and Mr. Anurag Yadav,
Advocates. (M: 9315956801)
versus
BAR COUNCIL OF DELHI & ANR. ..... Respondents
Through: Mr. Ajayinder Sangwan, Advocate
for Respondent No.1
Ms. Ishita Farsaiya, Advocate for
Respondent No.4
Ms. Shobhna Sharma, Applicant in
CM APPL. 33595/2020
Ms. Sanobar Ali, Advocate
(M: 9810945320)
Mr. Shoeb Alam, Advocate
(M: 9711346040)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh (Oral)
1. This hearing has been done through video conferencing.
W.P.(C) 5732/2020 & W.P.(C) 9862/2020 Page 1 of 12
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:05.03.2021
23:29:06
CM APPL. 33595/2020 (for impleadment) in WP(C) 9862/2020
2. Ld. counsel submits that vide this application, an Applicant was
seeking impleadment in the present petition. However, he has already been
given provisional enrolment and he is appearing in the All India Bar Exam
on 25th April, 2021. Accordingly, the impleadment application is not
pressed.
3. The application is dismissed as withdrawn.
W.P.(C) 5732/2020 & CM APPLs. 20717/2020 & 24320/2020 (both for
directions)
WP(C) 9862/2020
4. WP(C) 5732/2020 has been filed by two Petitioners - Ms. Ananya
Bajpai and Mr. Kartikeya Sharma praying for directions against the
Respondent, i.e., the Bar Council of Delhi (hereinafter, 'BCD') to accept
their enrolment applications, including the payment thereto, entirely in
electronic form.
5. Mr. Abhijat, ld. counsel appearing for the Petitioners submits that
vide order dated 28th August, 2020, the BCD was directed to place on
record the steps taken by them for online enrolment. He submits that no
affidavit has been filed by the BCD in this regard.
6. Mr. Sangwan, ld. counsel appearing for the BCD submits that the
BCD has, since July, 2020, enrolled a large number of about 5,000
Advocates, through online enrolment procedures. Even online payment of
the enrolment fee has been made possible. The first All India Bar Exam
post the COVID-19 pandemic was conducted on 24th January, 2021
physically and the next Bar Exam is scheduled for 25th April, 2021.
7. Ld. counsel further submits that in so far as providing online forms is
W.P.(C) 5732/2020 & W.P.(C) 9862/2020 Page 2 of 12
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:05.03.2021
23:29:06
concerned, the BCD is already in consultation with its IT Team and the
recommendations of the IT team are likely to be placed before the Full
House of the BCD shortly. In any event, he submits that both the Petitioners
have already been enrolled provisionally and they have also given the bar
examination.
8. Mr. Abhijat confirms that the Bar Exam has been given by both the
Petitioners.
9. In WP(C) No. 9862/2020, the prayer of Mr. Abhishek Anand, the
Petitioner in person, is that online enrolment should be permitted and
exemption should be granted from filing of rent agreement/proof of
residence.
10. Even in his case, he has been granted provisional enrolment.
However, he continues to challenge the condition for production of a proof
of residence as, according to him, the same is violative of Section 25 of the
Advocates Act, 1961 as also Article 19 (1) (g) of the Constitution of India.
11. Mr. Ajaywinder Sangwan, ld. counsel, on the other hand, submits
that in so far as the BCD is concerned, enrolment is permitted to all lawyers
who are residents of Delhi or the NCR region. Since the BCD can regulate
the enrolment of Advocates who are practising within its jurisdiction, the
requirement of rent agreement/proof of residence has been made applicable
to all those seeking enrolment.
12. This Court has considered the averments made by the parties. In so
far as the online enrolment process is concerned, it appears that sufficient
steps have been taken by the BCD during the pandemic to enable
provisional enrolment of Advocates through online mechanisms. The BCD
ought to continue its endeavour to make the entire system as transparent
W.P.(C) 5732/2020 & W.P.(C) 9862/2020 Page 3 of 12
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:05.03.2021
23:29:06
and convenient as possible for Advocates who are seeking enrolment.
Accordingly, the BCD may take a decision expeditiously in respect of
making available online forms and accepting documents online, as also
facilitating the online payment of enrolment fee. In so far as online
enrolment and exemption from physical appearance is concerned, the
feasibility of the same may also be considered by the BCD which would
take a decision expeditiously, in accordance with law.
13. In so far as exemption from filing the rent agreement/proof of
residence is concerned, the submissions of the parties have been heard.
14. The submission of the Petitioner that such a document cannot be
insisted upon is based on the interpretation of the phrase 'proposes to
practise' as contained in Section 25 of the Act. The said provision reads:
"25. Authority to whom applications for
enrolment may be made. - An application for
admission as an advocate shall be made in the
prescribed form to the State Bar Council within
whose jurisdiction the applicant proposes to
practise."
15. A perusal of the Advocates Act, 1961 shows that it is an Act to
amend and consolidate the law relating to legal practitioners. In addition, it
provides for constitution of "Bar Councils". Section 3 of the Act stipulates
that there shall be a Bar Council in all the major States and Union
Territories including a Bar Council "for the Union Territory of Delhi to be
known as the Bar Council of Delhi". The constitution of the State Bar
Council is provided in Section 3(2)(a). Section 4 provides for constitution
of the Bar Council of India. Section 6 lays down the functions of State Bar
Councils. The three primary functions of State Bar Councils are as under:
W.P.(C) 5732/2020 & W.P.(C) 9862/2020 Page 4 of 12
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:05.03.2021
23:29:06
"6. Functions of State Bar Councils.- (1) The
functions of a State Bar Council shall be -
(a) to admit persons as advocates on its roll;
(b) to prepare and maintain such roll;
(c) To entertain and determine cases of
misconduct against advocates on its roll;...."
16. Under Section 6(2), the State Bar Councils can also provide for
welfare measures for advocates who are on its roll. Section 9 stipulates that
Bar Councils would also have a Disciplinary Committee. Under Section 15,
the Bar Council can make Rules.
17. Chapter III deals with the admission and enrolment of advocates.
State Bar Councils maintain the rolls of advocates under Section 17 of the
Act. The roll of advocates consists of the names and addresses of the
persons admitted to be advocates on the rolls of the State Bar Council. The
said roll is maintained on the basis of seniority. Under Section 18, the name
of the advocate can be transferred from one State Bar Council's roll to the
roll of another State Bar Council. At the time of such transfer, the seniority
of the Advocate would be retained. The State Bar Council issues a
Certificate of Enrolment under Section 22. Under Section 24, the following
five conditions would have to be satisfied for the advocate to be admitted
on the said roll.
(i) The advocate has to be a citizen of India;
(ii) The advocate ought to be above the age of 21 years;
(iii) The advocate has to have obtained a degree in law as contained
in Section 24(c);
(iv) The advocate should fulfil the conditions as may be specified
in the Rules made by the State Bar Council under Chapter 3;
W.P.(C) 5732/2020 & W.P.(C) 9862/2020 Page 5 of 12
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:05.03.2021
23:29:06
and
(v) The advocate has to pay stamp duty, if any chargeable, as also
enrolment fee.
The disqualifications for a person from being admitted on a State roll are
provided under Section 24A.
18. Section 25 of the Act is relevant and is set out herein below:
"25. Authority to whom applications for
enrolment may be made. - An application for
admission as an advocate shall be made in the
prescribed form to the State Bar Council within
whose jurisdiction the applicant proposes to
practise."
As per the above section, the advocate shall file a prescribed form to the
State Bar Council within whose jurisdiction the applicant "proposes to
practise". Once the application is made, the same is referred to the
enrolment committee of the State Bar Council, which shall either admit a
person as an advocate or refuse the same with reasons. The power to
remove an advocate from the rolls also vests with the State Bar Council.
According to the Petitioner, since enrolment is to be given on the basis of
the jurisdiction where the applicant merely 'proposes to practise',
insistence on a proof of residence is contrary to law.
19. Under Section 28, the State Bar Council may make Rules to carry out
the purpose of Chapter III i.e., for admission and enrolment of advocates.
The BCD is fully empowered to make Rules under Section 28(2)(d) of the
Advocates Act, 1961, prescribing the conditions on the basis of which a
person may be admitted as an advocate on its roll. Section 28 of the
Advocates Act, 1961 reads:
W.P.(C) 5732/2020 & W.P.(C) 9862/2020 Page 6 of 12
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:05.03.2021
23:29:06
"28. Power to make rules. ― (1) A State Bar
Council may make rules to carry out the purposes
of this Chapter
(2) In particular, and without prejudice to the
generality of the foregoing power, such rules may
provide for --
(a) the time within which and form in which
an advocate shall express his intention for
the entry of his name in the roll of a State
Bar Council under section 20;
***
(c) the form in which an application shall
be made to the Bar Council for admission
as an advocate on its roll and the manner in
which such application shall be disposed of
by the enrolment committee of the Bar
Council;
(d) the conditions subject to which a
person may be admitted as an advocate on
any such roll;
(e) the instalments in which the enrolment
fee may be paid.
(3) No rules made under this Chapter shall have
effect unless they have been approved by the Bar
Council of India."
Under Section 29, advocates are the only class of persons who are entitled
to practise law. Advocates have a right of audience before the Supreme
Court and to appear before any Courts, as also any Tribunal. In order to
practise before any Court or authority, a person has to mandatorily enrol as
an advocate.
20. The conduct of an advocate is governed by Chapter V, which vests
discretionary powers in the State Bar Councils. The said State Bar Councils
can also punish advocates for misconduct.
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:05.03.2021
23:29:06
21. A perusal of the above scheme shows that every State has a
separately constituted Bar Council meaning thereby that the power of the
State Bar Council extends to that particular State. The roll of the advocates
maintained by the State Bar Council does not merely contain the name but
also the address of the advocate. Thus, the address is essential for
enrolment.
22. Under Section 25, the expression "State Bar Council within whose
jurisdiction the Applicant proposes to practise" does not mean temporary
appearance before a Court. It means the place where the Applicant who is
seeking enrolment intends to practise, with a sense of regularity and
permanence. This is so because an advocate practising within a particular
jurisdiction is under the supervisory and disciplinary control of the State
Bar Council where he has obtained enrolment as a member. A singular or
occasional appearance before a Court cannot entitle the Applicant to enrol
with the State Bar Council of that area. It is in the jurisdiction where the
Applicant intends to regularly practise that the enrolment can be obtained. It
is also clear from the scheme of the Act that if an advocate changes his
regular place of practise, a transfer ought to be sought from one Bar
Council to another.
23. Considering the unique nature of Delhi, as also the fact that several
advocates residing in the NCR region regularly practise within Delhi, the
BCD has provided in its Rules that the proof of residence in Delhi or the
NCR region would be required. The BCD has framed Rules in the year
1981, which have been approved by the BCI.
24. A 'member' under these Rules is a member of the BCD. The Rules
contemplate formation of a Disciplinary Committee, an Enrolment
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:05.03.2021
23:29:06
committee, an Election Committee, a Rules Committee as also a Tribunal.
Chapter VIII specifically deals with Rules for enrolment. Some of the Rules
are relevant and are extracted herein as under:
"107. The application for enrolment shall be
accompanied by all the documents required to be
produced as given in Form enclosed.
Xxx
109. The Enrolment Committee of the Bar
Council may require any candidate to appear
before it in support of any statement made by him
in his application or to furnish such other
particulars as may be required.
Xxx
115. Every advocate shall notify to the Council
from time to time any change of address and all
suspensions or assumptions of practice. Every
such intimation shall contain the roll number of
Advocate, the date of his enrolment, his address
and other necessary particulars."
25. The enrolment form, which is to be filled by the candidate seeking
enrolment, asks for the permanent address as also the temporary/present
address. This form is prescribed under Sections 24 and 25 of the Act. The
declaration specifically sought in this form is to the following effect:
"3. I declare that upon admission I propose
to practice within the State of Delhi."
26. In the checklist for enrolment, the following proof of residence is
sought:
"8. Proof of Residence of applicant within
the territories of National Capital Region
(NCR) such as Ration Card/Passport/
Adhaar Card/ Election Card/Rent
Agreement. In case Rent Agreement is
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:05.03.2021
23:29:06
attached, Residential I.D. Proof of
landlord/landlady, duly self attested by
him/her, be also attached. (Mobile Bill/Bank
Statement of applicant and landlord are not
acceptable)"
27. The proforma affidavit which is to be signed by the applicant also
seeks the following declaration:
"(i) That I have passed the LL.B.
examination from ............... University in
the year ................. and have applied for
enrolment as an Advocate with the Bar
Council of Delhi. It is already undertaken by
me in the enrolment application that my
place of practice will ordinarily be at Delhi.
(ii) However, in case I shift my place of
practice from Delhi to any other state,
hereby undertake to get my enrolment
transferred from Delhi to that state within 6
months of the change of place of practice as
provided in Part-V, Chapter III, Rule 3
framed by the Bar Council of India under
Section 49(1)(a b) of the Advocate's Act,
1961."
28. Even the ID card issued by the BCD seeks a residential address in the
Delhi/NCR region. All these Rules and forms are prescribed by the BCD,
duly exercising its power under Section 28 of the Act read with Sections 24
and 25 of the Act. The purpose of prescribing these conditions is to ensure
that the BCD permits enrolment to only those candidates, who intend to
regularly practise in Delhi as, admittedly, for the candidates who intend to
practise outside Delhi/NCR, the BCD cannot provide enrolment. In order to
ensure that it enrols only such candidates who intend to practice in Delhi,
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:05.03.2021
23:29:06
the BCD has, in its wisdom, laid down various checks. One such check asks
for proof of residence, either permanent or temporary, in Delhi. Since the
roll maintained with the State Bar Council has to contain not merely the
name but also the address of the advocate and Section 25 clearly provides
that the State Bar Council can enrol only such persons who propose to
practise within its jurisdiction, the requirement of providing proof of
residence in the Delhi/NCR region cannot be said to be either arbitrary,
discriminatory or unreasonable. If such a check is not maintained by the
BCD, it may lead to indiscriminate and unregulated enrolment of candidates
from various States in the BCD. Such a situation would be chaotic and
unruly, as if the applicant is not residing within the jurisdiction of
Delhi/NCR, for the purpose of disciplinary action etc. the BCD would be
unable to exercise jurisdiction. Therefore, in order to maintain discipline, in
terms of the responsibility vested with the State Bar Council under the
Advocates Act, 1961, seeking of documentation to support the residential
address of the candidate is perfectly justified.
29. Moreover, these Rules have been in existence for several years. The
constitution of State Bar Councils in each State and Union Territory is itself
for the purpose of exercising jurisdiction over an advocate intending to
practise in that particular State or region. In fact, if a particular candidate
wishes to, for a substantial period, move his or her place of practise, such
candidate has to seek transfer of his/her enrolment. This itself proves that
the jurisdiction of the State Bar Council extends over a particular State and
the intention is to make sure that the Bar Council within whose jurisdiction
the advocate practises is able to regulate the conduct of the advocate
enrolled with it. Thus, the challenge to the proof of residence in Delhi/NCR
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:05.03.2021
23:29:06
region raised by the Petitioner fails.
30. Both petitions are disposed of in the above terms. All pending
applications are also disposed of.
PRATHIBA M. SINGH
JUDGE
FEBRUARY 22, 2021/Mw/RC/dk/T
(corrected and released on 4th March, 2021)
