TIOL-DDT 534 · the untouched capture
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<p align="justify"><b><font color="#663399" size="3" face="Verdana, Arial, Helvetica, sans-serif">TIOL-DDT
534</font></b><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><br>
17.01.2007<br>
Wednesday</b></font></p>
<p align=center><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font color="#006600">Bar
the Bar</font></b></font></p>
<p align=center><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>No
more retired officers practising as lawyers?</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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 <b>DDT</b> 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 <i>Hindustan
Times</i> reads as, </font></p>
<p align="justify"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">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. <b>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</b>,” 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, <st1:place>Punjab</st1:place> 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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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 <b>INDIAN COUNCIL OF LEGAL AID & ADVICE AND OTHERS Vs BAR COUNCIL OF
INDIA AND ANOTHER - </b><u><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=50&filename=legal/sc/2002/2002-TIOL-538-SC-MISC-LB.htm">2002-TIOL-538-SC-MISC-LB</a></u></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Supreme
Court had then observed,</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ In the
first place there is no dependable material in support of the rationale on which
the rule is founded and </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ 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. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ 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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Delhi
Bar Council Chief is reported to have stated that such a rule also exists in
other states like Tamil Nadu, <st1:place>Punjab</st1:place> 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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In a recent
order in <b><i>M. Radhakrishnan v The Secretary, The Bar Council of India &
Another</i></b>which we are carrying today, the Madras High Court clearly held
that there can be no such bar.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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:-</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">5. In the
past, there has been number of complaints of fake law degrees being issued in
neighbouring States.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">13. Due
to the entry of undesirable elements into this profession, inducement for frequent
strike and criminalisation of the profession is not far away.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The High
Court was fortunately not very impressed and observed,</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">3. This
being the normal attribute of growing old, there is nothing concrete before
us for any assumptions to the contrary.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">6. Deterioration
in standard would be mainly attributed to two things, viz., lack of knowledge
and lack of manners.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">8.
the claim that such belated entrants are indulging in undesirable activities
and often calling for strikes and other unwanted activities is apparently baseless.
</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The High
Court observed that, entrants to legal profession can be classified into four
categories, viz.,</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">1. Fresh
law graduates, who enrol and continue to practise, taking legal profession as
full time career.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">4.
Persons, who managed to get fake law degrees and enter into the field.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.<br>
<br>
<b>Can the age factor have relevancy in maintaining the standards of the profession?</b>
The definite answer according to the High Court is an emphatic 'no'. The Court
further observed,</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">2. If one
looks carefully at these two categories, category No.3 stand on better footing
than category No.2.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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'.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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, <b>illusion and imagination cannot be allowed to be a base to frame a
rule</b> or clause thereof.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">And so the
rule barring entry of those aged over 45 into the profession is declared void
and unconstitutional.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Why are
they afraid of retired officers?</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">They have
argued that these retired persons are anti social elements responsible for fall
in standards!</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Quality
of Law education:</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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! </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Bar Council’s
role: </b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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! </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">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. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">See <b><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=51&filename=legal/hc/2007/2007-TIOL-30-HC-MAD-MISC.htm"><font size="1" face="Verdana, Arial, Helvetica, sans-serif">2007-TIOL-30-HC-MAD-MISC</font></a></b> for
the High Court order.</font></p>
<p align=center><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>India shining</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">A press
release issued by the Controller General of Accounts, MOF, GOI yesterday shows
that our Fiscal position is really good.</font></p>
<blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++
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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++The
Post-Monsoon season rainfall from October l, 2006 to December 31, 2006 was
normal/excess in 25 per cent of meteorological sub-divisions.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++
Food grain stocks were 18.50 million tonnes as on November 1, 2006.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++Overall
industrial growth was 10.6 per cent during April-November, 2006 as compared
with 8.3 per cent in April-November, 2005.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++
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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++
Exports grew by 39.5 per cent in dollar terms during April-November, 2006.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++
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?</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++
Forex reserves (excluding Gold and SDRs) stood at $170.19 billion at the end
of December, 2006. <b> 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?</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++
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.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++
<b>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.</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++
In terms of value, Fiscal deficit during April-November, 2006 was lower by
4.2 per cent over corresponding period last year.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++
In terms of value, Revenue deficit during April-November, 2006 was lower by
3.1 per cent over corresponding period last year.</font></p>
</blockquote>
<p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Until
tomorrow with more DDT </font></p>
<p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Have
a nice day. </font></p>
<p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Mail
your comments to</font><font size="2" face="Verdana, Arial, Helvetica, sans-serif">
<a
href="mailto:vijaywrite@taxindiaonline.com">vijaywrite@taxindiaonline.com</a></span></font></p>
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