Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., remarked that,

Insurance for lawyers has been an aspiration for several years.

In the present matter, while lauding the object of the Chief Minister’s Advocates Welfare Scheme, for advocates enrolled with the Bar Council of Delhi, the following two issues were raised:

  • The first, is in respect of a condition in the Scheme that the benefit of the same will only be available to such advocates whose names appear in the voter’s list of Delhi. A large number of advocates who are enrolled with the BCD and practising in various District Courts, the High Court, the Supreme Court and other fora, have been excluded due to this condition, as they are not residents of Delhi but reside outside Delhi, predominantly in the NCR region in areas such as Noida, Gurugram, Faridabad, Ghaziabad etc.
  • The second issue concerns those lawyers who were unable to register for the Scheme within the original deadline and are thus seeking an extension of the deadline for registration.

Broad summarization of the reliefs sought:

  1. Issuance of insurance policies to all eligible advocates already registered under the Scheme;
  2. Quashing of the condition requiring advocates to have a voter ID card of Delhi for obtaining the insurance policies under the Scheme. In effect, therefore, what is sought is the extension of the Scheme to lawyers residing outside Delhi, in the NCR region/neighbouring areas, so long as they are registered with the Bar Council of Delhi.
  3. Reopening of the registration portal to enable advocates who have been unable to register as yet, to put in their registrations.

Point wise analysis of the decision

  • Whether advocates registered with the BCD who reside in the NCR region/neighboring areas are entitled to benefits under the Scheme?

Place of Practice v. Place or Resident? 

Bench observed that on a conjoint reading of the provisions of the Advocates Act, 1961, the Bar Council of Delhi Rules, 1963 and the BCIPP Rules shows that insofar as advocates are concerned, primacy is given to the place of practice and not to the place of residence of the advocate.

Legal practice in Delhi and the NCR region/neighbouring areas

A substantial number of advocates who primarily practice in Delhi live in the NCR region/neighbouring areas, including in areas such as Noida, Gurugram, Sonepat, Rohtak, Faridabad, Ghaziabad, some areas of Punjab etc. Such advocates are registered with the BCD and are also members of the Bar associations of the court complexes where they practice.

The said advocates also contribute to the revenue stream of the Delhi Government by practicing in Delhi.

Therefore,

The advocates’ place of residence has no bearing on this whatsoever. Moreover, the place of residence of the advocate is also not set in stone. Depending upon the income levels of the advocate, the advocate may move to Delhi. It is a matter of common knowledge that not all advocates can afford housing in Delhi and may, therefore, choose to reside in the NCR region/neighbouring areas. However, the character of their practice, being essentially in Delhi, would not change.

Whether the scheme can be restricted to advocates who have voter ID cards of Delhi?

GNCTD had submitted that if the Government wishes to restrict the benefits of the Scheme to a sub-classification of advocates registered with the BCD as also residing in Delhi, the Court cannot interfere in the said policy decisions.

Whether Court can interfere in the policy decision of the Government?

High Court expressed that almost all decisions of governments taken as executive decisions would involve policy matters. Such decisions, as per the settled law would be amenable to judicial review, if it is seen that the same is either discriminatory or arbitrary.

There cannot be a hard and fast rule that in a welfare scheme, Courts cannot interfere, even if they are violative of the rights of a section of the citizens.

 Whether the sub-classification of advocates registered with the BCD would be permissible in law?

The scheme was introduced with the objective of welfare of the advocates. Object was to recognize the positive role played by advocates in society.

Chief Minister of Delhi had announced the Scheme with an outlay of Rs 50 crores to be utilized for the welfare of the legal community.

In Supreme Court decision of State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, test for determining whether a classification is valid or not was laid down.

Crux of Classification Test

There is no rational nexus between the grouping and the object, and the same is found to be arbitrary, the classification was unreasonable and liable to be struck down.

Further, it was added that submission on behalf of the GNCTD that the conditions to be imposed in the Scheme being one of governmental policy, the Court ought not to interfere in the same, would not be correct if the conditions are found to be discriminatory or arbitrary.

Bench elaborating more, stated that the GNCTD cannot impose the condition of residence in Delhi to advocates and not to its own employees.

The scheme of the Advocates Act, 1961 as also the various Bar Council Rules and Regulations give primacy to the place of practice and not residence.

Governmental policies are amenable to judicial review and if the allegation is one of discrimination the same would have to be examined on the touchstone of Article14. The Scheme carves out a distinction within advocates registered with the BCD, between those advocates who are residents of Delhi and those who are not. The Scheme is extended to the former and not to the latter. The said classification does not have a rational nexus with the object of the Scheme.

Hence, the Court held that the said condition and the resultant classification was discriminatory and arbitrary.

Bench lauded the Scheme floated by GNCTD for recognizing the need of advocates who belong to the various strata of society for having insurance for themselves and their families.

During the pendency of the petitions, a number of advocates enrolled with BCD with voter ID Cards of Delhi had already availed the Scheme and thus, the Scheme is already having a practical impact on the lives of advocates practicing in Delhi, especially during the pandemic.

  • Whether registration ought to be reopened to enable advocates who missed the initial deadline to obtain benefit under the Scheme?

With respect to reopening of registration for new advocates, a proper scheme would have to be evolved as the same would not be possible for the current year.

Upon extension of the Scheme to advocates from the NCR region/neighbouring areas, newly enrolled advocates and advocates who may register afresh for the Scheme having been enrolled post the deadline of 2019, the number of advocates who may become eligible may increase considerably.

High Court added that from the data filed by the BCD, it is clear that the BCD has funds to contribute to the Scheme, though the same may not be fully sufficient to fund the entire Scheme. The Advocates Welfare Fund Act, 2001 having been enacted for the purpose of welfare of Advocates, this Court is of the opinion that to the extent possible, the said Fund ought to be utilised to support the Scheme for insurance.

BCD either by itself or by receiving contribution from the advocates themselves ought to willingly share the burden.

Conclusion and Directions

a. The Chief Minister’s Advocates Welfare Scheme announced by the GNCTD is a Scheme that has a laudable objective of recognising the role of lawyers in protecting the rights of citizens and their constructive role in society. It is also in recognition of the role played by advocates and their contribution to the legal profession. The Scheme has, with this objective already enabled insurances for thousands of advocates in Delhi and has provided relief and succour to them especially during the pandemic. However, the condition in the Scheme that it would be applicable only to residents in Delhi with Voter IDs, is held to be discriminatory and arbitrary as the sub-classification from amongst the advocates enrolled with the Bar Council of Delhi, has no rational nexus with the object to be achieved. Accordingly, the Scheme shall be extended to all advocates registered with the Bar Council of Delhi, whose names and credentials are verified, without the insistence of Voter ID showing residence in Delhi;

b. For the current year’s policies, all advocates who had registered themselves and are eligible for the benefits under the Scheme shall be extended the benefits. The GNCTD has already spent approximately Rs.40 crores to enable advocates to avail of the insurance policies. Out of the total number of advocates for whom policies have already procured, there are 5,044 advocates from the NCR region/neighbouring areas within the verified list of advocates for whom premium has already been paid. They shall enjoy the benefits of the Scheme. All such further eligible advocates, who had registered within the deadlines prescribed, as per this judgement, who have been left out shall now be included and the policies/coverage, on the same terms, for the remainder period of the current year, shall be procured from the LIC and NIACL by 31st July 2021. Only the pro-rata premium would be liable to be paid by the GNCTD to the insurance companies, which the insurance companies had agreed to, during the course of hearing.

c. Insofar as the future years are concerned, since the pool of advocates has been increased, the total premium for life and Mediclaim insurance, may be more than the budget outlay of Rs.50 crores. The GNCTD cannot be made to solely bear the burden of providing the insurance premium, though it is urged that the outlay may be increased depending upon the requirements, taking inflationary trends etc., into consideration. The BCD which has been unable to provide for group insurance for advocates, ought to complement the efforts of the GNCTD which has clearly taken the position that the issue is not being treated in an adversarial manner. Thus, the deficit on a year-to- year basis, beyond the budgeted amount of the GNCTD, shall be funded by the BCD.

  1. For the said purpose, the BCD may source the funds in the following manner. It is –
  • Free to utilize its own funds, including the funds collected under the Advocates’ Welfare Act, 2001.
  • Free to seek any voluntary contribution from Senior advocates and other financially well-off advocates, who may be willing to contribute for the betterment of the legal community.
  • The BCD may, if the need so arises, collect some part of the premium from the advocates who are beneficiaries of the Scheme.

Lastly, the Court added that the Law Secretary of the GNCTD and the Chairman Bar Council of Delhi shall be responsible for working out the modalities of the Scheme.

The GNCTD, after consulting the BCD, would be free to decide on the nature of the Scheme to be availed of from the insurance companies, either on an annual basis or on a periodic basis such as three years or five years, so that the annual premia can be duly scaled down. The new scheme in terms of the present judgment shall accordingly be announced by 30th September, 2021, after consultation with the BCD and insurance companies. [Govind Swaroop Chaturvedi v. State of NCT of Delhi, 2021 SCC OnLine Del 3676, decided on 12-07-2021]


Advocates before the Court:

For the Petitioner: G.S. Chaturvedi, Petitioner in person.

For the Respondents: Mr. Rahul Mehra, Sr. Advocate and Mr. Satyakam, ASC for GNCTD.

Mr. Sanjay Rawat, Advocate for NIACL with Mr. Gaurav Sharma, Branch Manager.

Mr. Ramesh Gupta, Chairman, BCD. Mr. Rakesh Khanna and Mr. K.C. Mittal, Sr. Advocates with Mr. Rajiv Khosla, Advocate for BCD.

Mr. Kamal Mehta, Advocate for LIC.

Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan, J., while dismissing the present petition on lack of merits, said, “… election process has already begun and final voter list has also been published, therefore, entertaining this petition at this stage would amount to obstructing the election process, which is not permissible.”

Petitioner in the present case, are aggrieved by non-inclusion of their names in the voter list and have moved the present petition seeking relief for (i) revision of electoral roll of the gram panchayat (ii) impugned order to be set aside.

With respect to interference by the Court under Article 226, Court said, “It is a well-settled proposition of law that inclusion or exclusion of name in the voter list cannot be termed as an extraordinary circumstance warranting interference of the High Court in exercise of the jurisdiction under Article 226 of the Constitution. However, it is always open to a person whose name is not included in the voter list to avail the benefit by filing election petition as the authorities constituted have wide powers to cancel, confirm and amend the election and it can also direct to hold fresh election, in case, the election is eventually set aside.”

Court further observed that only in extraordinary and exceptional circumstances, the High Court can entertain writ petition under Article 226 of the Constitution where the order is ultra vires or nullity and/or ex facie without jurisdiction. Reliance was placed on Rule 14 and 24 of the Himachal Pradesh Panchayati Raj (Election) Rules, 1994 in addition to the case of Union of India v. Dudh Nath Prasad, (2000) 2 SCC 20 and Bhagwan Dass v. Kamal Abrol, (2005) 11 SCC 66.

Dismissing the petition, Court noted, “The present petition filed after commencement of the election process, that too, with a view to stall election, therefore, cannot be entertained, when the petitioner has an alternate efficacious remedy of filing an election petition under Rules.”[Akhtar Hussain v. HP State Commission, 2021 SCC OnLine HP 125, decided on 02-01-2021]


Sakshi Shukla, Editorial Assistant has put this story together