Madras High Court: In a writ petition filed in 2012 by a Senior Advocate on behalf of his son, a junior Advocate for being refused to drink water inside the premises of Madras Bar Association situated within High Court and regarding admission of practising lawyers as members and the consequential irrelevant restrictions imposed for such admission, S.M. Subramaniam, J. gave the following directions:
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Madras Bar Association was directed to pay a some of Rs.5,00,000/- to the Senior Advocate towards compensation for the untoward incident happened in the Madras Bar Association premises on 06-01-2012, since it is vicariously liable for the conduct of its own members.
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It also has been directed to admit respondents no.3 and no.4 as members of the Madras Bar Association within a period of one week from the date of receipt of a copy of this order.
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Madras Bar Association was directed to distribute applications for membership to all the interested practising lawyers in the High Court of Madras and admit them as members without discriminating any lawyer on the basis of caste, gender, religion, economic status, personal affiliations with Senior Advocates or dignitaries and political affiliations; without reference to the draconian Bye-Laws regarding eligibility criteria to become the member of the Association; or by amending the Bye-Laws suitably.
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In the event of failure on the part of the Association, the Madras High Court Administration and the Bar Council of Tamil Nadu are bound to initiate all appropriate actions in the manner known to law.
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The Bar Associations functioning in the High Court premises are directed to obtain prior permission from the Registrar General, Madras High Court for conducting / holding celebrations, functions, birthday parties, lunch parties etc., in the interest of safety and security in the High Court Premises.
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Shifting of Madras Bar Association from “High Security Zone” to any other place in the High Court premises is within the exclusive domain of the High Court administration. It is for the Registrar General, Madras High Court to initiate appropriate actions by placing all the facts before the Chief Justice of Madras High Court.
The Senior Advocate stated that the facilities provided in the Madras Bar Association cannot be kept for the exclusive use of their members, since the Madras Bar Association is functioning within the High Security Zone of the Madras High Court Buildings, availing the benefit of free electricity and other infrastructural facilities at the cost of public. Other serious allegations are raised by him is regarding admission of members, preventing Advocates of the Madras High Court from entering the premises even for drinking water and to utilise the rest room etc., and exclusive car parking provided to the Members of the Madras Bar Association in the High Court premises etc.
The Court said that the right to access drinking water is a fundamental right. Therefore, practicing lawyers inside the Court premises cannot be deprived of a right to access to drinking water merely on the ground that they are the members of a particular Bar Association
The Court said that an Advocate has a duty to enlighten and encourage the juniors in the profession. He should faithfully abide by the standards of the professional conduct and etiquette prescribed by the Bar Council of India.
On maintainability of a writ petition and the power of the High Court to issue directions regarding functioning of the bar association, the Court after referring Vinay Balachandra Joshi v. Supreme Court of India, (1998) 7 SCC 461 and few more decisions, said that the High Court is empowered to issue directions regarding the functioning of the Bar Association
The Court said that the Bar Association building is to be treated as part and parcel of the Court complex, further the Bar Association performs public duty, even though it does not fall under the meaning of State under Article 12 of the Constitution.
The Court stated that discrimination based on caste, community, economic status is unconstitutional. Lawyers belong to the Homogeneous Class. Thus, forming any class within the class of lawyers is undoubtedly unconstitutional. When the Bar Associations enjoy privileges at the public cost and utilising the public infrastructural facilities, free electricity etc., a practicing lawyer in the High Court premises cannot be deprived of his right of membership in any Association of his choice.
Further, the Court said that Bar Associations are provided with some facilities at the public cost. Thus, they perform public duties and responsibilities and they have got further duties towards the lawyers more particularly. Creating an elite community within the lawyers’ group may fall under the Fundamental Right of ‘Right to Association’. However, such Associations can be constituted outside the premises of the High Court Buildings, without enjoying the public premises or taxpayer’s money. Within the premises of the Public Institution such discriminations are impermissible and would cause not only issues but are also violative of fundamental rights of the citizen. When such Associations are formulated inside the Court premises and enjoying the public facilities at the cost of the pubic, then they are bound to admit the Lawyers, who all are willing to become the members of Bar Association.
After referring the Rule 6 of the Bar Council of India Certificate and Place of Practice (verification) Rules 2015, the Court said that this Rule makes it obligatory that the Lawyer immediately after their enrollment as Advocate to become a member of the Bar Association and informed the same to the Bar Council, to enable them to get benefits of any welfare schemes flooded by the State Bar Council or the Local Bar Association.
Further, in view of the various provisions of the Advocates’ Act, 1961 and other enactments relating to the welfare schemes for the lawyers, the choice of membership of an Association is not of the Association, but of the individual Advocate. Therefore, any Association denying membership to any practicing lawyer enrolled in the Bar Council concerned amounts to discrimination and such Association of lawyers are not entitled to enjoy the benefits of public premises or infrastructural facilities at free of cost or otherwise. Membership of the Association occupying and enjoying public premises has to be governed by the uniform Rule of Law and the Byelaws of the Association cannot put any unreasonable or arbitrary restrictions on that.
The Court on the ground of practicing untouchability in the Madras Bar Association, said that this allegation cannot be considered in the perspective of caste discrimination. It is to be construed in the perspective of class discrimination. Further, it said that good reputation is an element of personal security and is protected by the Constitution equally with the right to enjoyment of life, liberty and property.
The Court said that creating class within the class of lawyers cannot be construed as intelligible differentia. It is an improper discrimination by conferring privileges upon a class of Lawyers, which is arbitrary and not falling within the classification of reasonable distinction.
After perusing the Byelaws of the Madras Bar Association, the Court opined that that it is very difficult for a lawyer to become a member of the Madras Bar Association. Qualified members alone can propose the name of the Lawyer to become member. Therefore, choice is provided to the existing members. The existing members will have their own choice in selecting the members. Such allocation would undoubtedly cause not only discrimination but lead to the constitution of an elite community of lawyers within the lawyers community. Such a constitution of elite community of lawyers must not be allowed at the cost of the public, more-so in the public premises.
The Court also stated that when the High Court Administration granted space for Bar Associations by providing free electricity and other facilities at the cost of public, such Associations cannot be allowed to restrain the practicing lawyers from utilising such public facilities and in the event of allowing such Bar Associations to have Monopoly, the same is to be construed as unfair practice, unconstitutional and denial of basic rights to the other practicing lawyers.
[Elephant G. Rajendran v The Registrar General, 2023 SCC OnLine Mad 4095, Order dated 22-06-2023]
Advocates who appeared in this case :
For Petitioner: Senior Advocate Elephant G.Rajendran [Party-in-Person];
For Respondents: Advocate Karthik Ranganathan, Senior Counsel M.S. Krishnan, Advocate A. Mohandoss [Party-in-Person], Advocate S. Mahaveer Shivaji [Party-in-Person].
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