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KARNATAKA STATE BAR COUNCIL, OLD K.G.I.D.BLDG., BANGALORE
OBJECTIONS / SUGGESTIONS OF THE KARNATAKA STATE BAR COUNCIL FOR DRAFT “LEGAL PRACTITIONERS (REGULATIONS AND MAINTENANCE OF STANDARDS IN PROFESSIONS, PROTECTING THE INTEREST OF CLIENTS AND PROMOTING THE RULE OF LAW), ACT, 2010”
The Karnataka State Bar Council forwards the following objections and suggestions to the proposed draft bill / legislation styled as “Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law), Act, 2010.
The Karnataka State Bar Council considered the proposed Act in its meeting dated 11.12.2010 and after detailed deliberations the following objections were noted:
The proposed Draft Bill is totally unnecessary as every one of the subject matter sought to be covered by the Draft Bill which actually is the subject matter for which Advocates Act, 1961 has been enacted and the Bar Council at the State level and the Bar Council of India have been established. Therefore, the proposed Draft Legislation and creation of the Legal Services Board is super regulatory body is unnecessary and in effect interfering with the independence of the Bar.
In the proposed Act, Legal professional is defined so as to include anybody dealing with the legal issues though they are not enrolled as advocates. Thereby, the Act recognizes and permits persons to practice legal profession without enrolling themselves as advocates. Thus creating another class of persons to practice legal profession without enrolling is a dangerous trend for which legal sanctity is given by the proposed Act.
The draft legislation was intended to cover persons practicing legal profession coming from foreign countries. The same does not appear to be the intention as definition and other clauses clearly indicate that this is not a legislation proposed for controlling and regulating the working of the Legal Professionals coming from other countries. Even if the
intention is for the purpose of covering such of those persons practicing legal profession coming from other countries, and such of those law graduates or trained persons in the legal field dealing with the legal issues without enrolling themselves the only requirement is to introduce suitable amendment to the Advocates Act. A separate procedure of registration for such persons and empowering the Bar Councils and Bar Council of India to regulate their working.
The Legal Services Board as contemplated is supposed to be constituted by appointment of Chairman and Members in consultation with the 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 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. Therefore if Legal Services Board is to be constituted the persons in the Legal Services Board should be from among the advocates only and if there should be any representation of another inter disciplinary profession such as Chartered Accountants etc then there should be professional elected representatives from that profession. It is strongly felt that the body should consist of elected persons from amongst the advocates only.
The concept of appointment of Ombudsman i.e. a retired High Court Judge – retired Judicial Officers is strongly opposed and it is a anathema to independence of the Bar. It may be recalled here that prior to the enactment of Advocates Act, 1961 under certain earlier enactment the disciplinary
proceedings against the advocates with regard to professional misconduct were entrusted to Judicial Officers or the Courts and there was a strong peaceful agitation pointing out that the professional conduct should be judged by professional peer only. Therefore the concept of appointment of ombudsman should be confined to legal practitioners only and any appointment of sitting or retired judicial officers is strongly opposed.
The definition of professional, regulatory bodies etc are not in any way different from what are contemplated under the Advocates Act. Even if, of those provisions are required to be exemplified or clarified the same may be made by suitable amendment making it a part of the Advocates Act instead of enacting of new law which appears to be for creating of super body over and above the legally constituted Bar Council and Bar Council of India under the Advocates Act.
Sec. 11 of proposed Act, it is stated that there shall be levy of Rs. 25/- by affixing of stamp by all legal professionals appearing before the authority including officers. This is totally discriminatory in as much as the persons actually to be covered are the persons who mainly do chamber practice
In a lucrative field by giving opinions, drafting the deeds, agreements, conveyances etc who will not be appearing before any Officers, Court or Tribunals. There will no levy on them at all. Thus 10% of professionals who appear on litigation side in the Court, Tribunal or Officers are made to pay for maintaining Board. This levy is totally unjustified and on the other hand by way of appropriate amendment every one dealing with the legal issues either as chamber practice or otherwise should be made to register himself with the Bar Council and periodically renew the registration by paying appropriate amount of fee which would be the source of funding for the regulatory body i.e. Bar Councils and the Bar Council of India.
The body of providing education, training, regulating of the standards should be left to the Bar Council of India and whatever assistance is to be given should be provided to the representatives of the State Bar Councils and the Bar Council of India instead of creating another body. What is provided under the draft bill, it would be clear that the so called Legal Services Board or the Ombudsman etc cannot be sustained on their own fund and therefore necessarily there will have to be
assistance by the Government. Such of the assistance if provided to the existing Bar Councils and Bar Council of India, they themselves will be able to set up required infra structure. Therefore instead of creating another body which is top heavy, it is better that the existing structure under the Advocates Act itself is reinforced and if necessary by making appropriate amendments so as to provide infra structure as well as funds.
The Consumer Panel contemplated in the proposed act will not be of any assistance unless the legal professionals are taken out of the purview of the existing Consumer Law.
The provisions of Sec. 29 to 34 by which the Bar Councils are made subordinate to Legal Services Board is totally unwarranted and directly affecting the independence of the Bar and the Bar Councils which are consisting of democratically elected representatives. The working of the Legal Services Board is actually duplicating the work done by the Bar Council and Bar Council of India. The concept of censuring the Bar Council, approaching the High Court for seeking orders to enforce directions issued by the Legal Services Board etc are totally against the very objective and the principles of the provisions of the Advocates Act.
It is of the view of the Karnataka State Bar Council that the proposed enactment is unnecessary against the very concept of independence of Bar and at any rate creating a super body over and above the Bar Councils and Bar Council of India that too by involving sitting or retired judges and judicial officers is ineffect affecting the independence of the profession and therefore the proposed legislation should be dropped. Any changes to be made may be incorporated in the Advocates Act by suitable amendments.
( JAYAKUMAR S. PATIL )
CHAIRMAN