Tuesday, March 15, 2011

Legal Practitioners Act draws a flak all over India

Bar Councils across different states have opposed the draft Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Act 2010.
The Bar Council of the North East states today expressed its concern and in a press conference stated that the Bill introduced by the central government clearly demonstrates the autocratic tendency of the Government of India and is an attempt to destroy the autonomy of the Indian Bar by creating divisions amongst the legal practitioners. The Council maintains that the Bill further seeks to make the central government the overall authority to control and regulate the affairs of the Bar Councils both at the central and the state level which directly amounts to interference with the Bar Councils.
According to the Council, the Bill is in direct conflict with the Advocates Act 1961 and is an anti-advocates Bill. The Council expressed its concern that this amounts to curtailing the autonomy of Bar Councils constituted under Advocates Act and also amounts to converting the legal profession into a trade and business by allowing entry of unqualified persons to practice law. This will eventually adversely affect the public in general. The Council also expressed that the Act would make the government a super imposing authority and to ensure that the advocates also follow the philosophy of the government. The Council further highlighted that this was a ploy for allowing foreign lawyers to practice in India.
The Bar Council of the Northeastern States called upon all the Bar Associations of the region from sub-division level to state level to send representation to the Union Law Minister demanding that the Bill be scrapped. The Council resolved to observe Protest Day on 24 March, 2011 by way of sit-in demonstration and wearing protest badges, which is in tune with the resolution adopted by the joint meeting the Bar Council of India and state Bar Councils held in Jaipur on March 12 last.
The sit-in demonstration shall be held in the Bar Association premises in each and every district and sub-divisions in the N-E states including Sikkim by the advocates.
Similarly the Bar Council of Himachal Pradesh will also be observing March 24 as national Protest Day, as stated by YS Chandel, acting Secretary, of the Bar Council of Himachal Pradesh. The advocates are opposing the Act and the hidden agenda of which according to them is to attack on the unity, solidarity and independence of the Bar and to undermine the legal profession in the country.

The draft bill, according to the Government aims to provide for "the establishment of the Legal Services Board and in respect of its functions; to make provision for, and in connection with, the regulation of persons who carry out the activities of legal practitioners; to make provisions for the establishment of an ombudsman for complaints against the professionals and for a scheme to consider and determine complaints against the legal practitioners; to make provision in respect of providing legal services free of charge and for connected purposes".
The draft law defines the term 'legal practitioners' in a wide and comprehensive manner to include not only those appearing before courts but also includes the qualified lawyers engaged in legal practice confined to their chamber, engaged in drafting and conveyancing, practitioner of income tax and sale tax and those appearing before the relevant authorities, giving advise to the clients for a fee, gain or reward in the areas of customs, immigrations, trademark and patent services and all other professional services where legal issues are involved.
Further, the draft law also provides for the professional principles which it obliges the legal professional to follow, which are mainly, to act with independence and integrity, maintain proper standards of work, act in the best interest of their clients, act with the interest of justice and to keep the affairs of clients as confidential.
Further, the aim behind enactment of this proposed law is also provided for in the draft bill itself wherein the reasons have been enumerated as the regulatory objectives as under;
(a) protecting and promoting the public interest; 
(b) supporting the constitutional principle of the rule of law; 
(c) improving access to justice; 
(d) protecting and promoting the interests of the clients of the legal practitioners; 
(e) promoting healthy competition amongst the legal practitioners for improving the quality of service; 
(f) encouraging an independent, strong, diverse and effective legal profession with ethical obligations and with a strong sense of duty towards the courts and tribunals where they appear; 
(g) creating legal awareness amongst the general public and to make the consumers of the legal profession well informed of their legal rights and duties; 
(h) promoting and maintaining adherence to the professional principles.

The Karnataka State Bar Council today opposed the proposed Legal Practitioners Act 2010, terming it as "totally unnecessary" and said they would join the March 24 nationwide protest against it.
"The proposed Draft Bill is totally unnecessary as every one of the subject matters sought to be covered by the Draft Bill actually is the subject matter for which Advocates Act, 1961, has been enacted and Bar Council at the State level and Bar Council of India have been established," State Bar Council President Jayakumar S Patil told reporters here.
This, along with creation of a Legal Services Board as a super regulatory body would interfere with independence of the Bar, he said.
Under the proposed Act, legal professional is defined to include anybody dealing with legal issues though they are not enrolled as advocates, which is a "dangerous trend", he said.
The draft legislation was intended to cover persons coming from abroad practicing legal profession. Other clauses clearly indicate this is not a legislation proposed to control and regulate working of legal professionals coming from other countries, Patil said.
The Legal Services Board as contemplated is supposed to be constituted by appointment of Chairman and Members in consultation with Chief Justice of India and Chairman of Bar Council of India "which definitely gives an indication that persons to be considered for appointment are retired judges."
The Bar, Patil said, strongly feels any control of the profession should be by professionals themselves and bringing in Judicial Officers, whether serving or retired, "is totally against the concept of independence of Bar".
So if Legal Services Board is to be constituted, persons in the Board should only be from among advocates, Patil said.
He opposed the concept of appointment of Ombudsman i.e. a retired High Court Judge or retired Judicial Officers, describing it as "anathema to independence of the Bar".
Instead of creating another top heavy body, it is better that existing structure under the Advocates Act be reinforced, if necessary through appropriate amendments, to provide infrastructure as well as funds, he said.

JAIPUR: Lawyers across the country will boycott courts on March 24 in protest against the proposed Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Act 2010.
A decision in this regard was taken at the end of a day-long conference of state Bar councils organised here by the Bar Council of Rajasthan (BCR) on Saturday. Eight members of the Bar Council of India (BCI) and chairmen and members of Bar councils from nearly a dozen states took part in the conference.
During the conference, Bihar State Bar Council chairman Baleshwar Prasad Sharma and Suresh Chand Srimali, member and former chairman of the BCR, had demanded action against BCI chairman Gopal Subramaniam for allegedly supporting the government on the proposed Act, which the lawyers believe would curtail powers of the Bar Councils and "commercialise" their profession. Subramaniam was not present at the conference.
The lawyers alleged that the proposed Act would enable formation of a legal service board comprising a chairman, a member secretary and five members who would usurp the powers of the BCI and other state Bar councils.
The participants were concerned that the board would appoint ombudsmen for each state to deal with the complaints against the law professionals and, thereby, interfere with the freedom of lawyers.
"The conference unanimously decided to oppose the proposed Act as it derogates and condemns the provisions of the Advocates Act 1961," said Sanjay Sharma, a BCR member and co-convener of the conference.
"The proposed Act will work as a body giving entry tickets to foreign law firms/consultancy firms and legal practitioners, thus commercializing the noble profession of litigation," said Ram Manohar Sharma, president of the Bar Association of Jaipur.
The participant Bar Councils resolved to form an All India Advocates Action Committee to decide on the further course of action on the issue.
"BCR chairman N S Chaudhary has been nominated chairman of the committee and BCI member M Rajendra Reddy as its co-convener. All BCI members and chairmen of the state Bar councils shall be the committee members," Sanjay Sharma said.
The committee would submit a representation opposing the proposed Act to the Prime Minister and the Law minister.
The state Bar councils also resolved to demand a transfer policy for judges to bring transparency in the judiciary. They also demanded that the state governments should pay a "matching grant" to the respective Bar councils for the welfare of lawyers.

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