'No Elite Society Of Lawyers At Public Cost' : Madras High Court Directs Madras Bar Association To Give Membership Without Any Discrimination

Justice SM Subramaniam noted that the bye-laws of the Association have been formulated in such a manner that ordinary Advocates find it difficult to get membership thus resulting in class discrimination. The court also noted that since the association was functioning inside the court premises and enjoying all the benefits including free electricity, such elitism could not be allowed in a public place using the money.

“Creating an Elite Community within the Lawyers Group may fall under the Fundamental Right of 'Right to Association'. However, such Associations can be constituted outside the premises of the High Court Buildings, without enjoying the public premises or taxpayer’s money. Within the premises of the Public Institution such discriminations are impermissible and would cause not only heart-breaking issues but violative of fundamental right of the citizen of our Great Nation.” the court noted.

The present case was filed by Senior Advocate Elephant Rajendran, who alleged that his son Neil Rashan was prevented from drinking water at the MBA hall by another Senior Advocate Mr. P.H Pandian. Rajendran contended that since the Association was functioning upon public money, the facilities provided could not be denied to other practicing lawyers. He added that the actions of the Association were discriminatory and deprived lawyers from utilizing public facilities.

Among other things, Rajendran also contended that the association did not follow a transparent and democratic norm/guideline while admitting members. He also added that the action of the association- hosting meetings, parties, etc within the High-Security Zone of the Madras High Court posed a threat to the High Court. He also brought to the attention of the court various instances of discrimination where the association had arbitrarily and in a discriminatory manner, not considered the membership application of different persons.

On the other hand, the association denied all such allegations and submitted that the incident of denying drinking water was incorrect. It was also submitted that the Association had, since then fitted two water cans for the usage of practicing lawyers. Citing all the contributions made by the Association, towards the High Court and in general, it was submitted that the matter may be closed since both the Senior Advocate and the petitioner’s son were no more.

To this, the court noted that social issues did not die with persons and it was necessary to address the social issues in the interest of the future of the country. The court added that such issues could not be left casually as it would affect future lawyers who are necessary for the development of the Justice Delivery System. The court also observed that it was the primary duty of the Judicial Institutions to provide conducive atmosphere to all the practicing Lawyers enabling them to have utmost trust on the Judicial System.

“We cannot leave a bad precedent to future generation Lawyers. Judges are duty bound to ensure that no discrimination in any form is practiced and impartial system prevail for creating trust and comfort in the mind of the Lawyers and litigants in the process of Justice Delivery System.” the court said.

Observing that practicing lawyers cannot be deprived of access to drinking water merely on the ground of membership, the court added that the present case was regretful and that both bar and bench should avoid such trivial and unwarranted situations.

“In a profession of such a vivid history, it is regretful to say the least, to witness the instances of the nature of the present kind. Lawyers are the Officers of the Court in the Administration of Justice. The Bench as well as the Bar have to avoid unwarranted situations and trivial issues that hamper the cause of justice and are in no one’s interest.” the court said.

'Untouchability' includes all forms of social exclusion

The Court observed that 'untouchability' was not just caste-based discrimination but also all forms of social ostracism and exclusion which have their basis in ritual ideas of purity/pollution and hierarchy/subordination.

"A broad reading of Article 17 means that not only the caste-based practice of untouchability falls within the ambit of the constitutional prohibition, but practices that bear a family resemblance to “untouchability” are captured as well. This requires the Court to ask whether a particular practice, like untouchability, is a practice of social subordination, exclusion, and segregation, based upon an idea that certain personal characteristics (whether caste, or gender, or menstruation) can justify relegating individuals to an inferior position in society", the Court observed.

Association denying membership to lawyers amount to discrimination

With respect to membership, the court said that the choice of membership of an Association is not of the Association, but of the individual Advocate. The court also added that though forming an association was a fundamental right, when it was formulated inside the court premises, they were bound to admit any willing lawyer.

“Any Association denying membership to any practicing Lawyer enrolled in the Bar Council concern amounts to discrimination and such Association of Lawyers are not entitled to enjoy the benefits of public premises or infrastructural facilities at free of cost or otherwise.” the court noted.

It noted that the Madras High Court Advocates Association, Women Lawyers Association and the Madras Bar Association are functioning within the High Court premises. Out of which Madras Bar Association alone is permitted to function within the High Security Zone in the High Court buildings.

"When the High Court Administration granted space for Bar Associations by providing free electricity and other facilities at the cost of public, such Associations cannot be allowed to restrain the practicing Lawyers from utilising such public facilities and in the event of allowing such Bar Associations to have Monopoly, the same is to be construed as unfair practice, unconstitutional and denial of basic rights to the other practicing Lawyers", the Court stated.

Elite society of lawyers cannot be created at the cost of public money

Referring to the restrictive conditions of membership of the MBA, the Court asked whether they are intended to create an Elite Society of Lawyers. If so, the same cannot be created at the cost of the public, it added. There are certain allegations that sons and daughters of the dignitaries are admitted as members on extraneous considerations

"When such Associations are formulated inside the Court premises/public buildings and enjoying the public facilities at the cost of the pubic, then they are bound to admit the Lawyers, who all are willing to become the members of Bar Association".

Referring to the provisions of the Advocates Act and the BCI Rules, the Court said that the choice of membership of an Association is not of the Association, but of the individual Advocate.

Lawyers a homogenous class, divisions cannot be created on economic status.

"The Lawyers being homogeneous class, further creating divisions on any criteria including economic status or otherwise will result in losing faith and ordinary Lawyers will get frustrated and there is a possibility of young and talented Lawyers leaving the profession. It is the primary duty of the Judicial Institutions to provide conducive atmosphere to all the practicing Lawyers enabling them to have utmost trust on the Judicial System", the Court stated.

Thus, the court directed the Bar Association to pay a sum of five lakh rupees towards compensation. The court also directed the association to admit Advocates Mohandoss and Mahaveer Shivaji whose application for membership had been pending for a long time. It also directed the association to distribute membership application to all interested lawyers practicing in the High Court and admit them without any discrimination "on the basis of caste, gender, religion, economic status, personal affiliations with Senior Advocates or dignitaries and political affiliations without reference to the draconian Bye-Laws regarding eligibility criteria to become the member of the Madras Bar Association or by amending the Bye-Laws suitably".

In the event of failure on the part of the second respondent, the Madras High Court Administration and the Bar Council of Tamil Nadu are bound to initiate all appropriate actions in the manner known to law.

The court also observed that the association was to obtain prior permission from the Registrar General for conducting/holding any celebrations in view of the safety and security concerns.

Case Title: Elephant G Rajendran v The Registrar General and others

Citation: 2023 Livelaw (Mad) 171

Counsel for the Petitioner: Mr.Elephant G.Rajendran, Party-in-Person

Counsel for the Respondent: Mr.Karthik Ranganathan, Mr.M.S.Krishnan, Senior Counsel for Mr.V.R.Kamalanathan, Mr.A.Mohandoss [Party-in-Person], : Mr.S.Mahaveer Shivaji [Party-in-Person]