TIOL-DDT 534
17.01.2007
Wednesday

If the Delhi Bar Council has its way, all those retired officers trying to pose as senior advocates will have to look for some other job. Yesterday DDT reported an attempt by the Board to appoint retired Chief Commissioners as high value advocates. This may no longer be possible. A recent report in the Hindustan Times reads as,

A person who is otherwise qualified to be admitted as an advocate, but is more than 45 years of age on the date of submission of application for enrolment in the Bar Council, shall not be admitted as an advocate,¶ says Rule 2 B of the BCD gazette. Judicial officers, however, have been exempted from the age bar. Legal experts feel that those who have already worked with influential organisations like the police or the CBI usually bank on their contacts and do liaison work for their clients. Such a nexus is harmful for the system. It also creates an unfavorable atmosphere for young lawyers who join the profession soon after passing college. “Those who join the profession late often mislead people by posing as seniors in the profession. They lie about the years of practice to the client to win their trust,” said Ramesh Gupta, chairman, BCD. Every year over 3,000 law graduates enroll as advocates with the BCD; of these 20 per cent are those who come after retirement. “Such a rule also exists in other states like Tamil Nadu, Punjab and Haryana,” said Gupta. The BCD also claimed that it would help many lawyers in future as the number of youngsters opting for law as a profession had gone up in the past decade, after national law schools came into existence.

But the issue had been decisively settled by the Supreme Court more than ten years ago. When the Bar Council of India wanted to bar the entry of those aged above 45 years into the profession, the Supreme Court had struck down the provisions in INDIAN COUNCIL OF LEGAL AID & ADVICE AND OTHERS Vs BAR COUNCIL OF INDIA AND ANOTHER - 2002-TIOL-538-SC-MISC-LB

The Supreme Court had then observed,

++ In the first place there is no dependable material in support of the rationale on which the rule is founded and

++ secondly the rule is discriminatory as it debars one group of persons who have crossed the age of 45 years from enrolment while allowing another group to revive and continue practise even after crossing the age of 45 years. The rule, in our view, therefore, is clearly discriminatory.

++ Thirdly, it is unreasonable and arbitrary as the choice of the age of 45 years is made keeping only a certain group in mind ignoring the vast majority of other persons who were in the service of government or quasi-Government or similar institutions at any point of time. Thus, in our view the impugned rule violates the principle of equality enshrined in Article 14 of the Constitution.

The Delhi Bar Council Chief is reported to have stated that such a rule also exists in other states like Tamil Nadu, Punjab and Haryana, but may be he is not aware that the Madras High Court had struck down a similar rule framed by the Bar Council of Tamil Nadu.

In a recent order in M. Radhakrishnan v  The Secretary, The Bar Council of India & Anotherwhich we are carrying today, the Madras High Court clearly held that there can be no such bar.

The Bar Council represented before the High Court the justification for the bar of entry of 45+ advocates that it was to preserve the image of the profession and to protect the interest of the members of the Legal profession and submitted that:-

1. Several candidates, even without any basic or formal education, upon attaining a particular age, are allowed to directly appear in one sitting to obtain a Masters Degree and, thereafter, such candidates even proceed to seek admission in law colleges and secure a Law Degree even while in employment and after their retirement from service invariably apply for an enrolment as an Advocate at the age of 58 years to make the noble profession as their pastime.

2. The profession has become highly competitive and only very few of them are successful and many of the Advocates are unable to thrive in the profession and finding it difficult for their day-to-day livelihood.

3. Similar to Bar Council, other Bodies like Medical Council of India (MCI) and All India Council for Technical Education (AICTE) have prescribed maximum age limit of 21 years for entering those educational institutions imparting courses in Medical and Engineering, therefore, no candidate beyond the age of 21 years can aspire to enter any such professional courses and consequently only those who have the ambition of becoming an Engineer or a Doctor can become a professional in those fields.

4. Many persons consider the legal profession as their alternative source of income after retirement from service and / or a side avocation and not a career of ambition and that is the reason why the standard of the legal profession is deteriorating in the present days and there is a threat to the integrity of the profession.

5. In the past, there has been number of complaints of fake law degrees being issued in neighbouring States.

6. In no other profession, entry of a candidate is permitted at the age above 45 years, while so, by entry of such aged persons after their retirement, with the knowledge acquired during the course of their previous employment, they gain undue advantage as against those who are wedded to this legal profession.

7. There are so many practical disadvantages faced by the Advocates due to entry of retired persons at the age of 60s and even above.

8. The right to practice as an Advocate is not a fundamental right but a statutory right provided one satisfies the prescribed conditions that are laid down by the statutory body that regulates and governs the legal profession.

9. If no cut off age is fixed for entry into the profession, there would be a constant increase in the ratio of enrolment of candidates after retirement and a situation will be reached to threaten the integrity of the legal profession.

10. Most of the Law Colleges in some parts of the country admit students into Law Course and award Law Degree without insisting for regular attendance and classes.

11. In cases where the Law Degree is of any other State other than Tamil Nadu, the 2nd respondent verifies the genuineness and the fact whether the candidate underwent the course by actual attendance and only thereafter, enrols such candidates.

12. On account of this shortcoming even persons with unclean antecedents acquire legal qualification and enter into the profession leisurely according to their convenience and such persons are even dominating the Bar Associations, which ultimately affects the reputation of the profession.

13. Due to the entry of undesirable elements into this profession, inducement for frequent strike and criminalisation of the profession is not far away.

The High Court was fortunately not very impressed and observed,

1. However laudable the object sought to be achieved may be, we are unable to subscribe to the view that the enrolment of persons who have completed the age of 45 years has the effect of undermining the morality or decorum or the dignity and reputation of the noble profession.

2. On the other hand, with the advancement of age, a person grows rich in experience and gains, skill, sobriety, maturity of understanding and perfection to do things effectively and handles matter diligently carefully judiciously and with conviction.

3. This being the normal attribute of growing old, there is nothing concrete before us for any assumptions to the contrary.

4. When that seems to be the position even in respect of recruitment or promotion to service, there could be no justification whatsoever to do so in respect of a profession, independent, as it is claimed, to have a guillotine based upon an upper age limit.

5. First of all, no concrete material with statistics has been submitted before this Court that due to the inflow of belated entrants, the standard and quality of the profession dwindled to a great extent.

6. Deterioration in standard would be mainly attributed to two things, viz., lack of knowledge and lack of manners.

7. If the Bar Council of Tamil Nadu mean to say that the belated entrants; according to the Bar Council, one major group comes for enrolment after 58 or 60 years; have no good knowledge and also lack in manners, then, such claim is at best a delusion born of surmises and conjectures.

8. the claim that such belated entrants are indulging in undesirable activities and often calling for strikes and other unwanted activities is apparently baseless.

The High Court observed that, entrants to legal profession can be classified into four categories, viz.,

1. Fresh law graduates, who enrol and continue to practise, taking legal profession as full time career.

2. Fresh law graduates, who, after getting enrolled, suspend the enrolment, go for some other profession or employment, again leisurely turn back to the legal profession when they desire so.

3. Service candidates, who during the course of their employment or before that, pursue the law course and comes to the profession only after superannuation or voluntary retirement.

4. Persons, who managed to get fake law degrees and enter into the field.

The High Court had no second opinion that category No. 4 is definitely to be eliminated. But, at the same time, it cannot be said that there is no machinery to check and penalise such persons involved in issuing and obtaining fake law degrees.

Can the age factor have relevancy in maintaining the standards of the profession? The definite answer according to the High Court is an emphatic 'no'. The Court further observed,

1. We are not able to understand the attitude of the Bar Council in clinging towards category No.2 and showing indifference towards category No.3, when both of them almost stand on the same footing.

2. If one looks carefully at these two categories, category No.3 stand on better footing than category No.2.

3. The view that category No.3 could practise influence because of their past services is meaningless since category No.2 also re-enter after their engagement/service in other fields or even in Government employment.

4. After all category No.2, who turn back to the profession after completion or being unsatisfied or bored with the job they pursued by suspending enrolment, may be coming in by 'leisure entry'.

5. The State Bar Council is constant in repeating the same version again and again without coming forward before this Court with sufficient statistical data substantiating their claim, however, they admit their inability in bringing concrete evidence, hence, illusion and imagination cannot be allowed to be a base to frame a rule or clause thereof.

6. In respect of the apprehension that law degrees from other States are not upto the expectation or standard, it is for the respective State Bar Councils to identify the universities and, after proper verification of the degree certificate and other documents, they can very well deny enrolment if the documents found to be fake or issued by any unrecognised university and there is no compulsion on the part of the Bar Councils to enrol them on their Roll.

7. It cannot be the case that Bar Councils of other States have no check on the issue of fake degrees and certificates issued by unrecognised universities.

And so the rule barring entry of those aged over 45 into the profession is declared void and unconstitutional.

And it is exactly this rule which Delhi is trying to implement and it seems the Gujarat Bar Council has also brought in a similar rule.

Why are they afraid of retired officers?

The Medical Council will certainly not bar the entry of a highly qualified doctor just because he is highly qualified. The whole argument of the Bar Councils seems to be that the retired officers are too good and such highly talented persons cannot be allowed in a profession where incompetence rules the roost and mediocrity is the measuring scale. If somebody who knows the Central Excise law so very well enters the profession, the lawyer who was thriving on confusing every body would feel threatened. The other day I was witness to a Central Excise case in a High Court where both the advocates – for the party as well as the department were thoroughly ignorant about the provisions of the law and were arguing endlessly on the meaning of ‘explanation’. Strangely the judge was very well informed about the provisions.  A friend who writes in our columns told me that many lawyers who are familiar with the geography of the High Court believe that they know the laws too and were pathetic caricatures before the court.

They have argued that these retired persons are anti social elements responsible for fall in standards!

Quality of Law education:

Except a handful of top law colleges like, NLSUI and NALSAR, the quality of education in our law colleges is abysmally poor. The first preferences of a budding youth would be to become a doctor, engineer, civil servant, bank officer, clerk, private employment etc,. Only if he fails in all these attempts and has nothing better to do, he joins a law college and after three years is out into the world armed with a law degree and nothing else. Most of them cannot write a proper sentence. Most of them had not attended more than three classes in the three years of their law education. In Delhi, many join the Law course to get a seat in the hostel and prepare for the civil services examinations. There are the “thirty questions” books and if you read 10 of those thirty questions before the exam, you are sure to pass. It is this kind of people who join the profession and now they talk of standards and ethics!

On the other hand, the working employees are serious about the Law course and they want to learn the laws so that they can practise and when they come to the bar, they bring in a lot of knowledge and experience and this seems to be threatening the other brand.

Bar Council’s role:

The standard of under graduate law education in the country is the responsibility of the Bar Council and they should concentrate on improving the standards in our Law colleges instead of restricting the entry of highly talented experts. If the standard of Law education is allowed to degrade like it is now, in the not too distant future we will be stuck with totally incompetent and ignorant lawyers and judges. And this is what the Bar Council should try to prevent. And in any case the students from the premier Law schools do not join the profession!

Once upon a time lawyers were considered to be the cream of society and it is really pathetic that today they do not want expertise and knowledge in their profession.

See 2007-TIOL-30-HC-MAD-MISC for the High Court order.

India shining

A press release issued by the Controller General of Accounts, MOF, GOI yesterday shows that our Fiscal position is really good.

++ The overall growth of GDP during the second quarter (July-September) of 2006-07 was 9.2 per cent as compared to 8.4 per cent during Q2 in 2005-2006.

++The Post-Monsoon season rainfall from October l, 2006 to December 31, 2006 was normal/excess in 25 per cent of meteorological sub-divisions.

++ Food grain stocks were 18.50 million tonnes as on November 1, 2006.

++Overall industrial growth was 10.6 per cent during April-November, 2006 as compared with 8.3 per cent in April-November, 2005.

++ Core infrastructure sectors achieved an average growth rate of 7.8 per cent during April- November, 2006 as compared with 5.2 per cent in April-November, 2005.

++ Exports grew by 39.5 per cent in dollar terms during April-November, 2006.

++ Of course imports also increased by 36.5 per cent in April-November, 2006 bringing in more Customs revenue, but is too much of imports good for the economy?

++ Forex reserves (excluding Gold and SDRs) stood at 0.19 billion at the end of December, 2006.  Yes we have about 8 Lakhs Crores of rupees in our Forex reserves. Is it good economics to sit on such large reserves without putting them to use?

++ And inflation also grew. The annual inflation rate in terms of WPI (Base 1993-94=100) was 5.58 per cent for the week ended December 30, 2006 as compared with 4.56 per cent a year ago.

++ Tax revenue (net to Centre) during April-November, 2006 was higher by 36.0 per cent compared with an increase of 22.0 per cent in corresponding period last year.

++ In terms of value, Fiscal deficit during April-November, 2006 was lower by 4.2 per cent over corresponding period last year.

++ In terms of value, Revenue deficit during April-November, 2006 was lower by 3.1 per cent over corresponding period last year.

Until tomorrow with more DDT

Have a nice day.

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