By Neelanjana Paul, KLE Society’s Law College, Bangalore.
Now, a law degree and enrollment with respective state Bar Councils will not be enough to be a practising lawyer. Wary of the tendency of law graduates to switch careers after being enrolled, the Bar Council of India (BCI) has introduced a new rule mandating a certificate of practice for advocates.
The BCI, at a joint meeting of the representatives of all state bar councils, had expressed concern over the growing exodus of lawyers, many of them who shift to other jobs without informing the professional body. According to the BCI, the legal profession is slipping out of the hands of practising advocates. The various welfare schemes floated for practising advocates are enjoyed by those who have left the practice. The new Certificate of Practice and Renewal Rules, 2014, notified with effect from October 29, will tackle this issue.
On October 30, 2014 the newly framed “Certificate of Practice and Renewal Rules, 2014” were published in the Gazette of India. As per the amended rules, all advocates in the state roll, as on June, 2010, have to obtain certificate of practice within six months from the state bar councils by filing application with fee of 500. Those who enrolled after June, 2010, have to appear for Bar examination for obtaining certificate of practice, as per existing rules.
The BCI initiative has been widely welcomed by legal professionals. The lawyers, who fail to obtain the certificate of practice, will be included in the list of defaulting advocates to be published under the title of non-practising advocates. A person included in the list will be barred from appearing in courts and tribunals. Such a prohibition will be continued till resumption of practice, by filing application with prescribed fee. New rules also constitute a practice fund for improving the facilities in Bar Associations.
The Bar Council of India at a meeting held on October 30, 2014 approved the Certificate of Practice and Renewal Rules, 2014 by its Resolution Number 169/2014 dated 29/10/2014. The certificate of Practice and renewal rules, 2014 aims to weed out the advocates who have switched to the other profession/ services/ business and whose names continue to be found on the rolls of State Bar Councils, sometimes even longer after their death. The objective of the Rules is to lay down some conditions for practicing law in different courts so as to give due weightage and credence to experience.
The BCI has brought about two major changes. They are:
- The Rules proposes that an advocate, who is entitled to practice law, is required to hold a valid “certificate of practice” and registration as a member of the Bar Association recognized under the law. The Rule limits minimum experience to practice law in various courts and states that the new advocates shall start practice only before the Court of law which is equivalent to the Court of Session Judge/ District Judge/ Original jurisdiction and all other courts which are subordinate to them. The Rule also states that unless an advocate has acquired the experience of working before the lower courts and tribunals for 2 years, and before the High Court and such other courts exercising appellate jurisdiction and all other courts which are subordinate to them for 3 years respectively, they would not be entitled to practice law before the Supreme Court of India.
- The Rule also provides procedures to apply for grant/ renewal of “Certificate of Practice” of Advocates, which is looked after by the Administrative Committee and is scrutinized for want of bonafide intent to practice law. Any “Certificate of Practice” is valid for a period of five years from the date of its issuance /renewal, and is required to be renewed after the expiry of the said period. In case of failure of making an application for issuance / renewal of the “Certificate of Practice” within the stipulated time, it is presumed that such an advocate has left law practice and that he/she has no bonafide intent and interest in continuing it in future, and his/ her name is added in the list of “Non practicing Lawyers”, who are not entitled to practice law or to vote in any elections of Bar Associations and to other privileges and rights under Welfare Schemes of BCI.
The recently issued Certificate and Place of Practice (Verification) Rules, 2015 by the Bar Council of India (BCI) are likely to exclude many non-litigation advocates from `practising’ law in India. The avowed purpose of the Rules is to save Bar Associations from slipping out of the hands of the advocates who `practice law’. Consumed by their zeal to tighten their political grip over Bar Associations, the drafters have failed to look beyond advocates `practising law’ in different Courts and recognising that the legal profession of the 21st century has moved far beyond litigation and courts. Consequently, not only are the Rules myopic in vision and replete with errors, but they potentially derecognise the vibrant non-litigation law practice in India. If this was indeed a conscious policy choice by the BCI, then it is probably a classic case of regulatory capture, where an interest group (a section of litigation advocates) has captured the regulator (BCI). The ingenious drafting
The Rules do not explicitly define `practice’ of law. But Rule 4(l) clarifies that the words used in the Rules (but not defined therein) will derive their meaning from the Advocates Act, 1961. In the context of section 29 of the Advocates Act, the Madras High Court in AK Balaji v BCI interpreted the words `to practice the profession of law’ to include practice of litigation as well as non-litigation matters. Therefore, for the purposes of the Rules, `practice’ is likely to include non-ligation practice as well. Furthermore, Rule 5 states that no advocate is entitled to `practice law’ unless he holds a certificate of practice issued under the All India Bar Examination Rules, 2010, or under the Rules. Therefore, even non-litigation advocates need to possess certificate of practice for non-litigation practice. However, Rule 4(g) defines the term `Bar Association’ as `court work based association of advocates’. Consequently, the Rules have been specifically drafted to narrowly define `Bar Association’ to mean only associations of litigation advocates, while `practice’ of law has been left broad enough to include non-litigation practice. In other words, the Rules attempt to bring non-litigation practice within the control of associations of litigation advocates. Although a dubious policy choice, it seems consistent with the apparent scheme of the rules – to corner power and capture more turf!
Now Rule 8 classifies advocates into two sets:
(a) Advocates who graduated in or after the academic year 2009-10 and enrolled on or after June 12, 2010: Rule 8.1 requires such advocates to get a certificate of practice under the AIBE Rules, 2010. Such certificates are valid for 5 years and the validity can be extended every 5 years by the concerned State Bar Council (SBC) (under Rule 9.1).
(b) Advocates who graduated before the academic year 2009-10: Rule 8.2 requires such advocates to apply for verification of certificate of practice and place of practice from the SBC where he is enrolled. This application must be made within July 13, 2015 (for those already enrolled) or 6 months from date of enrolment. Such certificate of practice is valid for 5 years and the validity can be extended every 5 years by the concerned SBC (under Rule 9.1).
Rule 8.4 requires that every such application for verification of certificate of practice to the SBC must be accompanied with certain documents including a certificate from the President, Secretary or any office bearer of the concerned `Bar Association’, SBC or BCI, stating that `he has not left law practice’. Interestingly, if it is found that the authority issuing this certificate did so despite knowing that the advocate is `not in practice’, the SBC can take actions against the authority who issued the certificate. Difficulty in obtaining a certificate is only part of the problem. For membership to any SBC or the BCI, one must be an advocate on the electoral rolls of the SBC. Now Section 3(4) of the Advocates Act disqualifies an advocate from voting or being a member of a SBC, unless he satisfies
such conditions as may be required by the BCI rules. As we have seen above, the Rules require a certification of practice from a litigation lawyer who is an office bearer in the Bar Association, SBC or BCI. Such an office bearer is not likely to certify non-litigation lawyers whom he has not seen appearing in Courts/Tribunals/statutory authorities. Therefore, over time non-litigation lawyers will be completely squeezed out from membership of any SBC or BCI by virtue of this vicious cycle. Consequently, the Rules are likely to completely exclude non-litigation lawyers from influencing the regulatory powers of BCI, although BCI will continue to exercise regulatory powers over non-litigation practice.
The legal system is dominated by lawyers. In India, many politicians (in Parliament as well as Cabinet) have been lawyers themselves. These lawyers occupying senior positions are mostly products of pre-liberalisation Indian legal education system. They have all experienced litigation practice. In contrast, non-litigation practice boomed only post-liberalisation– post1990s. Moreover, it is primarily the new generation national law universities that have catered to this niche market since early 2000. Consequently, there is a clear disconnect between the older generation of Indian litigation lawyers in influential positions as against the new age non-litigation lawyers. This disconnect has resulted in litigation advocates identifying themselves as an interest group, separate and distinct from the non-litigation advocates. From this perspective, capture does not suggest corruption or conspiracy; Rather it is a phenomenon of identification. Since the BCI identifies with the interests of the litigation advocates only, it ended up shaping the entry rules to the profession accordingly, deeply prejudicing the non-litigation advocates.