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Coronavirus Policy

Circumvention of Right to Work by the Bar Council of India Rules in the Light of the COVID-19 Disaster

Abhiraam Shukla

Introduction

In a recent judgment, the Supreme Court reiterated that members of the Bar cannot earn their livelihood by any other means. The judgment was delivered during the suo moto proceedings in a case concerning financial difficulties being faced by lawyers, who are at a loss of work, amid the COVID-19 pandemic[1].

Time and again the judiciary of the nation has upheld Rules 47 to 52 of the Bar Council Rules which proscribe the advocates of the country from practising any profession, business or trade other than law. These rules are considered essential for maintaining professionalism, sanctity and dignity of the metier of law. This is why these rules have been examined in cases like Sushma Suri v. Government of National Capital Territory of Delhi[2], and Satish Kumar v. Bar Council of Himachal Pradesh[3], and yet no amendments have been suggested to them by the judiciary.  However, with the onset of the pandemic which is an unprecedented situation, the pertinent questions which arise are: how legitimate are the Bar Council Rules while taking into view the basic human right to work ? Is this an opportune situation to do away with them for the time being to mitigate the hardships faced by the members of the legal fraternity due to the unprecedented and catastrophic effect of the current situation on their working opportunities?

Right to Livelihood – A Basic Human Right

Right to Livelihood or alternatively Right to Work is a basic human right which is enshrined in copious international instruments. These include Universal Declaration of Human Rights (Article 23)[4], International Covenant on Economic, Social and Cultural Rights (Article 6(1),7, 8)[5] and African Charter on Human and Peoples’ Rights (Article 15)[6] to name a few. The aforesaid global statutes, conventions, declarations, etc., place an unshakeable obligation on the signatory states to prevent violation of the right to work by enacting suitable and ample legislations and rules to secure the same. The UN Committee in Economic, Social and Cultural Rights (CESCR) has guided the signatory states on how to fulfil their obligations to protect, respect and fulfil the right to work[7].  It is recommended that the parties must guarantee the existence of tailored services to assist persons to spot work opportunities and find a job.

In our country, the legal framework to govern the right to work is mainly mandated by  Article 19(1)(g) of the Constitution which provides that every citizen of the country has the fundamental right to practise any profession of his choice and Article 21 which essentially safeguards the right to life, but was interpreted in Olga Tellis to include the right to livelihood. The Supreme Court observed: “If the right to livelihood is not treated as a part of the constitutional right to life, the easiest ways of depriving a person of his right to life would be to deprive him of his means of livelihood. In view of the fact that Articles 39(a) and 41 require the State to secure to the citizen an adequate means of livelihood and the right to work, it should be sheer pedantry to exclude the right to livelihood from the content of the right to life.”

This judgment is relevant to the present context concerning the plight of the advocates as their right to earn livelihood, especially in these perilous times is hindered by the Bar Council Rules. In these times, it has become the duty of the State to provide employment opportunities and financial assistance to the advocates. Any hindrance present in the way of the advocates should be removed by the state authorities since survival has become a primary concern in this time of pandemic.

In addition to this, Article 41 of the Constitution of India., which forms a part of the Directive Principles of State Policy, also instructs the government to secure the right to work for its citizens in cases of unemployment, old age, sickness, etc. Article 43 of the same provides that the State shall endeavour to secure a living wage and a decent standard of life for all workers. Thus, Right to Work is one of the most compulsory and pivotal integrants for unmitigated realization of Right to Life and has become even more crucial in the view of the incessant pandemic.

An Analysis of the Bar Council Rules and Their Legitimacy

Rules 47-52 of Section VII of the Bar Council Rules, 1975 which have become an additional cause of hardships for advocates in the present time require a detailed analysis by us before we can assess whether they should be given a priority over the right to work of the advocates of the country. Rules 47 to 52 deal with restrictions on other employment. This restriction is considered as a general etiquette on the part of lawyers as the métier of law is a noble profession and requires full-time dedication.

It is provided in Rule 47 that under no circumstances shall an advocate personally engage in a trade or business but it allows advocates to be sleeping partners in firms provided that the State Bar Council is of the opinion that the profession is not inconsistent with the prestige of legal specialism. 

According to Rule 48, an advocate is allowed to be Director or Chairman of the Board of Directors but the post should not be of an executive character.

Rule 49 stipulates that no advocate shall be a full-time employee of any person, firm, Government, Corporation etc. It is settled in Rule 50 that a family business may be inherited by a practising advocate but he must not manage it. 

Rule 51 of the Bar Council Rules allows certain opportunities which can be undertaken by advocates during their practice. These opportunities include  reviewing Parliamentary Bills for remuneration, press-vetting for newspapers, setting question papers and engaging in journalism and teaching both legal and non-legal subjects.

Rule 52 provides some relief from the restrictions listed in Rules 47-52. Rule 52 announces that State Bar Councils may provide part-time employment to advocates if it is of the opinion that such employment does not conflict with his professional work and is consistent with the dignity of the legal business.

On one previous occasion the judiciary has upheld the legitimacy of these rules stating that presence of the said rules is imperative to maintain the nobility and finesse required in the profession. In Dr. Haniraj L. Chulani vs. Bar Council of Maharashtra & Goa, theSupreme Court dismissed the writ petition of a medical practitioner who wanted to be enrolled as an advocate while simultaneously practicing as a colorectal surgeon. The petitioner claimed that the decision of the Bar Council of Maharashtra and Goa to refuse his application for such enrolment violated his fundamental rights under section 14, 19(1)(g) and 21 of the Constitution.

The Apex Court held that the authorities which framed the Bar Council Rules had the power to regulate the education of law students in India. Similarly elected persons constituting the State Bar Council had the right to ensure that any person who seeks to enrol as an advocate must fulfill the requisites to ensure that the chastity, nobleness and sanctity of the legal trade is maintained.

Regarding the question of violation of Article 19 (1)(g) of the Constitution, the Court held that the Bar Council Rules fall within the ambit of reasonable restrictions which fall within Article 19(6) of the Constitution. The Court did not decide whether the Rules violated Article 14 as they were within the ambit of Article 19(6) and hence not arbitrary. Similarly the petitioner was already working as the medical practitioner and hence not deprived his right to life (Article 21).

Hence it has been held by the Supreme Court that these Rules do not violate the fundamental right to livelihood in normal circumstances. However, in an extraordinary circumstance when the practice of law by the advocates is itself hindered due to the state of affairs, it is important to determine whether the operation of the Rules transgresses the fundamental right to earn a livelihood.

COVID-19 – Is it Time to Suspend the Bar Rules?

Now in such a remarkable and extraordinary situation, it is requisite for the Supreme Court to take extraordinary steps. The purpose for which the said Bar Council rules were drafted have become subservient to the pressing needs of the advocates. This pandemic requires the judiciary of the country to suspend the Bar Council Rules for the time being so that unemployed lawyers of the nation may engage in other professions to sustain themselves through the pandemic. Other than that, the State Bar Councils must, under Rule 52, allow their respective advocates to obtain part time employment. The restriction in Rule 52 which states that such employment must not be inconsistent with the dignity of the profession of law must be eased in view of the situation. Other supplemental initiatives can include the extension of financial help by the State Bar Councils to advocates in need. This measure has already been undertaken by the UP Bar Council and the Odisha Bar Council. Other states must also follow their lead to help advocates in distress. These are some of the measures that can be implemented by the State Bar Councils and the judiciary of the country which can help the advocates to recuperate from the ramification of COVID-19 as swiftly as possible.

The author is a student at the National Law Institute University, Bhopal.


[1] In Re : Financial Aid For Members Of Bar Affected By Pandemic (Suo Moto WP(C) No.8/2020)

[2]  1993 (3) S.L.J 34 (S.C)

[3] AIR 2001 S.C 509

[4] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html [accessed 23 August 2020]

[5] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at: https://www.refworld.org/docid/3ae6b36c0.html [accessed 23 August 2020]

[6] Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), available at: https://www.refworld.org/docid/3ae6b3630.html [accessed 23 August 2020]

[7] General Comment No. 18: The Right to Work (Art. 6 of the Covenant)

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