DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

Project

Professional and legal ethics

Certificate and place of practice rules, 2015 : An analysis

Submitted by
SARVARAYUDU AMBATI

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 2016088,10th sem

ACKNOWLEDGEMENT

I have made my project under the supervision of Aruna ma’am , Damodaram Sanjivayya
National Law University. I find no words to express my sense of gratitude for providing the
necessary guidance at every step during the completion of this project. I am also grateful to the
office, librarian and library staff of DSNLU, Visakhapatnam for allowing me to use their library
whenever I needed to. Further I am grateful to my learned teachers for their academic patronage
and persistent encouragement extended to me.  I am once again highly indebted to the office and
Library Staff of DSNLU for the support and cooperation extended by them from time to time. I
cannot conclude with recording my thanks to my friends for the assistance received from them
in the preparation of this project.

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Contents

1. Introduction
2. Objects of the rules
3. Analysis of rules
4. Cases relating to rules
5. Conclusion

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 1. INTRODUCTION

The law profession is an respected field and it has basic task to carry out in ensuring and
advancing the Civil and Constitutional privileges of the general people. The significant increase
in number of lawyers practicing with fake degrees in the courts have given a need for Bar
Council of India to make The Bar Council of India Certificate and Place of Practice
(Verification) Rules, 2015. It is reported that delhi has the highest number of advocates with
fakes degrees which has been found when the verification drive has happened. The rules will
provide for the elimination of lawyers with fake degrees. The BCI Certificate and Place of
Practice (Verification) Rules 2015 says it is compulsory for lawyers to reregister as per the new
rules and to submit certificates of education right from grade 10 certificates and those shall be
subjected to verification by the BCI with the respective boards and universities. The rules states
in its statement of Objects and Reasons that there are a series of different problems that
presumably faced by the legal community and as a measure to counteract all the different alleged
problems, the Bar Council of India (BCI) offers a single solution and that solution is for each
advocate to obtain something called the Certificate of Practice.1

2. Objective of rules:

The object of the rules can to be to ensure that people who are registered as advocates but are in
other profession or alternate business are changed to the list of non-practicing defenders, to
regain control of Bar Associations and of other elected bodies under the the Advocates Act, to
maintain communication and contact with the members, to ensure that all advocates who
registered after 2010 are required to take the All India Bar Exam, to ensure that social assistance
schemes for advocates are enjoyed only by those who practice, the elimination of advocates with
fake degrees.

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https://www.indiatoday.in/india/story/delhi-fake-lawyers-supreme-court-bci-12011-2016-06-02

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The law profession is an respected field and it has basic task to carry out in ensuring and
advancing the Civil and Constitutional privileges of the general people. An autonomous and bold
Bar is essential and vital for supporting and advancing a genuine and sound legal system. The
Bar which is prone to control and influence from unessential forces, howsoever strong and
regarded they might be, can't do equity either to the Legal Profession or to the Rule of Law, so
protection becomes necessity. The increase in number of Advocates changing over to different
professions/occupations/business with no intimation to the State Bar Council has achieved
disturbing extents. This pattern is imperiling the legal profession in general. It has additionally
made a dent in its sacredness and genuineness. Names of such advocates keep roll by the even
when the advocates are dead. Under these conditions it creates the impression that the control of
Bar Associations and of other bodies under the Advocates Act is slipping out of the hands of
practicing advocates. It is additionally being encountered that after certificate of enrollment is
issued to a advocate, for all intents and purposes there exists no contact with him and the
Council. Under the current situation, All India Bar Examination presented on the ruling of the
Supreme Court of India to improve the standard of legitimate calling has likewise neglected to
completely accomplish its goal. advocates enlisted with the State Bar Councils acquire
“Provisional Certicate of Practice” (valid for 2 years) and from that point the greater part of
them are practicing without thinking about All India Bar Examination and to pass it. Different
welfare plans for advocates have been introduced in India both under Stale Legislation as well
as different welfare plans by different State Bar Councils and by Bar Council of India yet
benefits are being delighted in by those who have left the practice. The Bar Council has likewise
come to realize that various people (with no Law Degree or enrollment certificate) are doing
Legal practice before courts. numerous people after enroll as Advocates in any State Bar Council
get into Property-Dealings, contracts or change over-to some different business, calling or work
and have no more worry with the Legal practice. Such "nonpracticing Advocates" are being
utilized by a portion of the office-bearers/contender for decisions of Bar Associations or Bar
Councils (Only for their voting). In any case, indeed, the Council has understood that such
practice is corrupting the standard of Legal calling and this malpractice must be halted. 2

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So as to keep up the pride and standard of Legal calling, we will need to remove counterfeit
advocates from the courts and we will need to recognize the "nonpracticing Advocates" who are
engaged with other employment, business or calling. We are to guarantee that such Advocates
don't be included in deciding the positions and decisions of our Associations and the Bar
Councils; And such Advocates are not permitted to get any benefit of welfare plans or to practice
law if they are in some other business, employment or calling. It is because of these reasons, the
Council has chosen to make arrangements for identication of such people and non-practicing
Advocates and the council is very serious that if any one is trying to protect fake people
practicing as lawyers, or tries to create hurdles in the identification of such non practicing
advocates and create any hurdles in verification of the certificate of practice, or place of practice
or details of the advocate, then such offenders shall be bared from contesting election in any bar
council for a period upto 3 years.3

To summarize

(i) to verify o whether the person enrolled as an Advocate are in practice of law or had left the
practice with no bona fide intent and interest in continuing it in future

(ii) to make list of such persons to be displayed for public

(iii) to ban such non-practicing Advocates from practicing law unless they are allowed to resume
practice under Rule 28 of the Rules.

3. Analysis of the Rules

The chapter 1 of the Bar Council of India Certificate and place of Practice (Verification) Rules
2015 provides the extent of applicability of the rules will be to all those advocates whose are
registered on state rolls maintained by the state bar councils and gives definitions of different
terms. According to the act Advocate means an advocate whose name is entered in the Roll of
advocates being maintained by the State Bar Councils under section 17 of the Advocates Act,
1961. And have also defined fake person as a person who is practicing in the courts or other
legal forums without having a valid law degree. It is also noted that all the other terms shall have
the same meaning as in advocates act. Section 5 states that no advocate shall be entitled to
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practice in courts without certificate of practice given by the bar council. It defined
Administrative Committee shall comprise of three members of the state bar council elected by
elections for discharging functions under this rules. Non practicing advocate is defined as any
Advocate enrolled with any State Bar Council, but not actually practicing Law and is engaged in
some other public or private job, business, contract etc. that is not related to Legal profession and
also who has been so declared under Rule 13 and Rule 20.2 of these Rules and whose name
stands published under Rule 20.4.

Chapter 2 makes it compulsory for an advocate to be a member of the bar association where he
or she is normally practicing law or else if any advocate don’t want to be member of any state
bar association he should intimate the same to the state bar council. Chapter 3 provides for
barring of advocate contesting in elections of bar association and bar councils for 3 years if they
are making hurdles in the way of implementation of the rules, such barring order shall be passed
by the tribunal constituted by the bar councils. 4

rule 8 of chapter 4 provides procedure and makes it necessary for all advocates graduating or
enrolling in “roll of advocates” after June 2010 to apply for certificate of practice from the state
bar council within 6months. rule 9 of the rules gives the certificate of validity 5 years time to re
apply again and remaining rules of the chapter talks about penalties for delays. Rule 13 gives the
administrative committee that is set up under the rules to pass such order allowing or dismissing
the application for issuance of the certificate a time of one month to scrutinize the application for
verification of certificate of practice and place of practice and says that only application can be
rejected if it is found that such advocate has left practice and has no intention of practicing law.
Rule 14 gives any person aggrieved to file a objection petition to add the names the such
advocates in list of non practicing advocates. Chapter 5 provides that it shall be duty of the state
bar council to prepare certificate and dispatch it to the advocates.

Chapter 6 of the rules state that it shall be presumed that that advocate who has not applied
under the time frame to have left practicing. Rule 18 provides for making list defaulting
advocates for such advocates and the Certificate of practiceies shall be published as per the rule.

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Late applications shall be accepted if application is filed within 6month from publishing the
name in the the above list. Rule 20 states that if no application is filed within 6months after
publishing the list such advocates shall be declared as non practicing advocates. Rule 21
provides that from such date of publication of list of non practicing advocates, they will not be
allowed to appear before any court of law, or any tribunal or any other authority. The chapter 8
rule 22 gives the duty on state bar council to prepare a separate record of advocates with
particulars of such advocates under the list and it shall be updated regularly and every year such
record is sent to BCI. Rule 23 says that the electoral rolls must be updated as per the list of non
practicing advocates published.

Chapter 8 provides various rules relating to appeal, revision etc. For such purposes there shall
be a appellate tribunal for disposing appeals for each state bar council and such tribunal will have
2 elected members of the state bar council and one from executive council, one is chairman, one
is another nominated by other members. Quorum of tribunal is 3 and final order will only be
passed in the presence of chairman. Rule 25 gives the advocate whose application is rejected and
included in list of non practicing advocates to appeal before the above tribunal with 60days and
also delay in filing appeal shall be condoned if there is sufficient cause with fee of rs200. Mere
filing of appeal against the list and orders passed under rule 13 and rule 20 shall not operate to
stay the legality and also the applicability of such order unless such operation of order is stayed
by the appellate tribunal. The power of revision is dealt in rule 27 where it provides that BCI
may call for records of proceedings under these rules which were disposed by the state bar
council or appellate tribunal if there is a question as to legality and correctness of such
proceeding where no appeals shall lie. No order shall be passed against the advocate without
giving the person reasonable opportunity of being heard. 5

Under chapter 9 of the rules if the advocates wants to remove practice and want to practice law
and his name to be removed from the list of non practicing advocates and bar council may pay
appropriate orders for the allowing or dismissing an application. In case application for
resumption is allowed, the name of the advocate shall be taken out from the list of non
practicing advocates and he shall therefore be allowed to practice law before the various courts
and forums of the country.Resumption of Practice 28.1 If an advocate whose name has been

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included in the “list of non-practicing advocates” published under Rule 20.4, intends to resume
law practice in the changed circumstances, he may apply to the State Bar Council that his/her
name may be taken out of such list. 28.2 Application for resumption shall be made in Form C
along with resumption fee of Rs.2, 000/- and it is also declared that the fees of rs 500 our of that
rs 2000 paid shall be utilized by the bar council of india for the purpose of the taking up of
various welfare programs of the advocates under the act.

Under the miscellaneous chapter rule 30 provides for the section removal of difficulties which
says the final authority to settle issues relating to the act is appellate tribunal. Rule 31 of the rules
provide for regulatory powers of the BCI to issue regulations to SBC and execution of such rules
and such compliance shall be managed. In case the term of elected council member is delayed
due to expiry due to delay in process of electoral roll for the BCI and in such cases the SBC may
form an Ad hoc committees which are are special committee which will act as a alternative in
case of absence of such committees. Under the saving clause the BCI rules 2014 if any
certificate of the nature is issued under the 2014 rules, such shall be vail for a period of 5 years
from date of such issuance. Rule 34 Is a clause which says any resolution or rules previously
passed that are inconsistent with the 2015 rules thus such rules stand repealed.

Analysis

Certificate and place of practice rules, 2015 has been made obtaining certificate of practice
required; which implies that there will be negative outcomes if a advocate does not acquire the
certificate of practice. According to rules there is even Even Suspension Of Advocates By Bar
Council For Non Payment Of Welfare Fund Subscription Challenged In SC. To apply for the
certificate of practice, one needs to pay a procedure expense (Rs.100/ - to Rs.400/ - ), while
submitting the application, two ID,photos and furthermore another authentication from one's Bar
Association (BA) or State Bar Council (SBC), ensuring that he/she has not left law practice. In
the wake of presenting the application with all these supporting archives, the application will be
made a decision by a body called the Administrative Committee; which implies that the
application can either get permitted or rejected. Regardless of whether the application gets
permitted, the certificate of practice issued will be substantial just for a restricted time of 5 years;

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which implies that it must be restored like clockwork by reimbursing the procedure expense and
resubmitting all the supporting archives. On the off chance that one doesn't have any significant
bearing for the Certificate of practice or it immediately, he/she will be recorded as a defaulting
advocate. Indeed, even subsequent to being recorded as a defaulting advocate, if steps are not
taken to agree to these principles, he/she will be recorded as a non-rehearsing advocate. What's
more, the impact of being recorded as a non practicing advocates is that he/she will be barred
from practicing up in Courts. The problems with the courts are that Various welfare plans of
advocates are being utilised in by the individuals who have left the practicing as advocates into
other professions and businesses.There are numerous instances in the election that non practicing
advocates are shammed into casting a ballot for money. Various phony people are enjoying
legitimate work on, deceiving the Courts and the disputants. Non practicing advocates are at
times being utilized by some office-bearers/competitors just for their votes.

These Rules successfully make two new classes of advocates ; practicing and non-practicing
supporter, and it additionally forces a type of segregation between the two. The explanation
under Rule 14.6 states that a advocate will be considered to be practicing in the event that he can
set up that he has showed up in any Court of Law or has documented Vakalatnama atleast in one
case before any gathering in a year prior to these Rules come into power. This clarification
viably show that who have are in practice are only practicing advocates as per the rules and in
this manner totally sidelines the various supporters who could be enjoying non-quarrelsome
practice like being an in-house corporate legal advisor or included solely in conveyancing or due
steadiness. For instance, you could be a advocate who records a new vakalat each and every
working day of the year and you could be a comfortable face with the judges, staff of the library
and even individuals from the SBC yet you will be recorded as a non-practicing advocate and be
banned from showing up in any Court of law in the event that you neglect to acquire this
authentication. On the other side, one could be a advocate who never goes to Court or never does
anything taking after a rehearsing advocate yet at the same time in the event that he could figure
out how to get his name onto atleast one vakalat in a year, he would be considered as a
rehearsing advocate.6

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https://www.livelaw.in

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The application procedure is very pestering to all the practicing advocates. To start with, we are
approached to pay up fee for the sake of procedure expense. On the off chance that it is the
expectation of the BCI to distinguish all the practicing people, at that point how is it sensible to
force to pay fee from of practicing advocates. Second, on the off chance that we could as of now
get an endorsement from a Member of our SBC that we have not left law practice (as gave under
provision iv of Rule 8.4), what is the need to constrain us to get one more authentication) from
the Administrative Committee involved the equivalent SBC Members, which would be
practically verify. There is no nexus between the object of the Rules and the Rules themselves.
For instance, the BCI more than once states in the announcement of items and reasons that the
SBCs and larger part of the BAs are now not conforming to officially existing compulsory
arrangements and that their records are not state-of-the-art; the BCI additionally expresses that
office-bearers of BAs intentionally imbue such phony individuals into the calling with a thought
process to get their votes in the decisions. The equivalent BCI that embraced the above
perspectives, all the while bolsters sanctioning of Rules 22.1 and 22.2 which forces extra
commitments on the equivalent SBCs and BAs to make and keep up new records of promoters
that would enlist under these Rules and anticipates that them should work now with always
productivity. The equivalent BCI that embraced the above perspectives, all the while underpins
institution of condition iv of Rule 8.4 and expects the testaments being issued to be free from any
negligence or danger and expects non-maltreatment of the inferred capacity to reject issuing such
an endorsement to any candidate without reason. There is definitely no equalization of
accommodation in these Rules It is the effectively bustling practicing advocates who are
compelled to spend more cash, time and vitality than they essentially need to, to demonstrate
something they don't need to, however the Rules don't substantiate what advantages such
supporters get from acquiring this certificate of practice or basically, how does any the practicing
lives get become any better by getting this certificate. Thusly, as an end to this examination, it
tends to be said that, regardless of whether you are an individual who isn't keen on any of the
political parts of our profession, for example, the Bar Council or Bar Association election and
regardless of whether you are an individual who is modest and does not have any desire to
trouble anybody and essentially needs to continue with his or her calling in harmony, these Rules
will in any case come thumping on your entryway and remove your entitlement to rehearse,
except if to persuasively venture out of your own particular manner and acquire obligatory

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financial and fleeting misfortune. Also, thus, these Rules are very subjective in nature. It to
realize that the BCI which should be the one securing the advocates and protecting our
entitlement to practice is the one to remove that right because of some reasons.

4. Cases relating to the COP Rules, 2015

S.Balasubramanian vs The Secretary 20187

Facts:

The facts are the case are that that the petitioner is a law graduate and got enrolled in tamil nadu
state bar council in the year 2001 and practiced for 8 years and in 2009 got employment with
Life insurance corporation as development officer and got terminated in 2013 and applied for
Assistant public prosecutor post and in turn got rejected on the ground that he is non practicing
advocate and thus he is not entitled to be assistant public prosecutor. Such decision was
challenged in the hc by the petitioner. Rule 21 provides that from such date of publication of list
of non practicing advocates, they will not be allowed to appear before any court of law, or any
tribunal or any other authority. “Rule (2(j)- An non-practicing advocate means an Advocate
enrolled with any State Bar Council, but is not in actual practice of Law and is engaged in some
other public or private job, business, contract etc. not related to Legal profession: and who has
been so declared under Rule 13 and Rule 20.2 of these Rules and whose name stands published
under Rule 20.4”.

Issue:

Whether he is a entitled to practice as advocate as per rules of BCI for certificate and place of
practice verification rules, 2015?

Held:

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https://indiankanoon.org/doc/193194374/

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It is held by the high court that the rule 21 will only bar the advocates from practicing when the
bci have published their names in the list of non practicing advocates when the person has not
obtained the certificate of practice. In the present case he is not listed in the list of non practicing
advocates as per rule 21 and also the court gave direction to apply under rule 28 to resume
practice as advocate and then opined that he is eligible to apply for post of APP under
notification.

Patanjali Rishi vs Bar Bouncil of India 20168

Facts

The petitioner in this case has claimed that after obtaining his LL.B degree he has cleared All
India Bar Examination conducted by the Bar Council of India, under All India Bar Examination
Rules, 2010, and he is practicing as an Advocate since 2010. He is also said to have cleared the
Advocates on Record Examination 2013 conducted by Patna High Court have status of
"Advocate on Record" of the Patna High Court and wanted exe

mption. The petioner challenged the rules on the ground of making power under section 49 of the
advocates act can make rules with respect to the conditions subject to which an advocate shall
have the right to practice and the circumstances under which a person shall be deemed to practice
as an advocate in a court.

Issue

Whether the rule 21 is within the ambit of rule making power under section 49 of advocates act?

Held

It was held by the hc of patna that the impugned rule cannot be said to be unreasonable or
arbitrary keeping in mind the background in which the rules have been framed. None of the
provisions can be said to be prejudicial to any person, who is a bonafide legal practitioner. As

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per section 49 of the advocates act can make rules with respect to the conditions subject to
which an advocate shall have the right to practice and the circumstances under which a person
shall be deemed to practice as an advocate in a court and because this rules are made for the
purpose of benefit to the profession it was held that the rules were within the ambit of rule
making power under 49 of the advocates act and even the AOR must get place of practice
certificate. The court did not find any reason as to why there should be exemption from
applicability of the impugned Rules in respect of Advocates of Record of this High Court.

Amar Sinha & Anr vs Bar Council Of India & Ors 20169

Facts:

The application is filed under Article 226 of the Constitution of India was filed on the question
of validity of the Certificate and Place of PracticeRules is constitutional or not. They claim to be
the regular practitioners at Munger District Court and who have been Members at the District
Bar Association of Munger. Also it is that he has fairly long standing at the Bar and has been
twice the Secretary of the District Bar Association, Munger and twice the President of the
District Bar Association of Munger and they have challenged the constitutionally of rule 5(A) of
the rules.

Issue:

Whether rule 5(a) is ultra vires to the constitution as it restricts the right to practice?

Held

It was held by the court that chapter 9 of the Rules gives the Advocate an opportunity to
resume practice by making an application for resuming practice under Rule 28 of the Rules 2015.
It is also provided in rule 13 that the tribunal shall not it cannot be said that the Rules take away
the right of a practicing Advocate to practice law. Rule 13 gives the administrative committee
that is set up under the rules to pass such order allowing or dismissing the application for
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issuance of the certificate a time of one month to scrutinize the application for verification of
certificate of practice and place of practice and says that only application can be rejected if it is
found that such advocate has left practice and has no intention of practicing law. Thus the said
rules are not ultra vires to the constitution.

Shiv Kumar Pankha and another vs High court of allahabad 201810

Facts:

The both petitioners have applied who are candidates for the U.P. Higher Judicial Service
Examination-2018 have filed this petition against the order dated 28.11.2018 rejecting their
candidature and for seeking a direction to permit them to participate in the process of the said
examination even though they are in the fact that they are in full time employment as Law
Officers with the State Bank of India (in short SBI) and Punjab National Bank (PNB)
respectively.

Issue

Whether full time salaried employees is qualified as practicing advocate for purpose of judicial
services examination.

Held

It was held that according to rule 49 of the BCI rules clearly stipulates that an advocate who
accepts a full time salaried employment will cease to practice as advocate as per fiction of law
created by the rule 49 and as soon as an advocate enters into full time salaried employment he
will loose his right to practice even though he may represent the employer before the court of
law. Rule 49 of the BCI Rules creates a legal fiction to the effect that a person duly enrolled as
an advocate ceases to be one as soon as he takes a full time employment on salary even if
continues to occasionally appear in law Court. In this case thus the court held that the period of
full time employment as Law Officer with the Bank despite his appearance before the court as

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part of the service condition can not make him a practicing advocate for the purpose of selection
as judicial officer.

5.Conclusion

From the examination of the rules of BCI for certificate and place of practice it is observed that
the objective of the rules to verify if the person enrolled as an Advocate are in practice of law or
had left the practice with no bona fide intent and interest in continuing it in future and to make
list of such persons to be displayed for public and also for ban such non-practicing Advocates
from practicing law unless they are allowed to resume practice under Rule 28 of the Rules. This
kind of differentiation between practicing and non practicing advocates is necessary so as to
protect the nobelty of the the profession and also so as to prevent such non practicing advocates
from enjoying the welfare schemes of the Bar councils and associations which are meant for the
practicing advocates and also to prevent participation of the non practicing advocates in the
voting for elections so they don’t be a deciding factor and also to prevent buying of the votes of
such non practicing advocates. It is also observed from the cases that the rules have been
challenged on constitutional grounds and also has also decided that whether a advocate is
practicing or not practicing under the rules. It is observed that the levy of hefty fees on such
advocates will adversely affect some bona fide practicing advocates and it is recommended that
such fees are to be reduced and also in one case it is observed the AOR are not exempted from
getting the certificate of practice under the rules. It is also also recommended that there must be
proper notice to advocate whose name is listed on defaulting advocates and non practicing
advocates as under the rules, because the public announcement is not sufficient. It is also seen
that the list must be used to update the electoral rolls.

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