CIRCUMVENTION OF RIGHT TO WORK BY THE BAR COUNCIL OF INDIA

RULES IN THE LIGHT OF THE COVID-19 DISASTER

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 pandemic1.

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. 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), International Covenant on Economic, Social and Cultural Rights (Article 6(1), 7,
8) and African Charter on Human and Peoples’ Rights (Article 15) 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 2. It is recommended that the parties must
guarantee the existence of tailored services to assist persons to spot work opportunities and
find a job.
1 In Re : Financial Aid For Members Of Bar Affected By Pandemic (Suo Moto WP(C) No.8/2020)
2 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 18: The Right to
Work (Art. 6 of the Covenant), 6 February 2006, E/C.12/GC/18, available at:
https://www.refworld.org/docid/4415453b4.html [accessed 23 August 2020]
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 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.

THE LEGITIMACY OF BAR COUNCIL RULES- ARE THEY SUPERIOR TO A BASIC

HUMAN RIGHT?

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 metier 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 which 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 a notable 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, the Supreme
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. In the same way elected persons
constituting the State Bar Council had the right to ensure that any person who seeks to enrol
as an advocate must fulfil 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 relevant
to check 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 has become 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 by 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 ramifications of COVID-19 as swiftly as possible.