For Advocates Not Having Any Income Even Earlier, Pandemic Cannot Become Boon To Entitle Them To Financial Assistance Now: CJ S. A. Bobde
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"All Bar Associations seem to be saying that we have authorised the BCI. And it is saying that it is the state Bar Councils which hold the fort in the states...there is also a prayer for making payments and giving loans out of the Contingency Fund under the Constitution....they want the Union of India to pay...", said CJ S. A. Bobde to SG Tushar Mehta at the outset.Appearing for all the...
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"All Bar Associations seem to be saying that we have authorised the BCI. And it is saying that it is the state Bar Councils which hold the fort in the states...there is also a prayer for making payments and giving loans out of the Contingency Fund under the Constitution....they want the Union of India to pay...", said CJ S. A. Bobde to SG Tushar Mehta at the outset.
Appearing for all the High Court Bar Associations, Senior Advocate Ajit Kumar Sinha sought to make submissions on the statutory possibilities by which the same may be implemented, indicating section 3 of the Advocates' Welfare Funds Act, 2001.
"But you haven't filed any reply. We only have an affidavit from the BCI", asked the CJ.
"They have authorised us to rely on it...the affidavit is in the name of Mr. Ashok Kumar Pandey (the joint secretariat to the BCI)..", he responded.
Quoting the said section 3, he pointed out that the provision requires the appropriate government to set up an advocates' welfare fund.
Next, he referred to Article 267, empowering the Parliament or the state legislature to establish a Contingency Fund in the nature of an imprest into which shall be paid from time to time such sums as may be determined by law, and the said Fund shall be placed at the disposal of the President/Governor to enable advances to be made by him out of such Fund for the purposes of meeting unforeseen expenditure.
"There are some riders though...the bar council will have to ensure that if an interest-free loan is given, it is refunded...interest may be charged and monthly installment up to a limit of Rs. 10,000 may be stipulated", he added.
"We find that all the associations responded inadequately...you have people who are extremely well-to-do because of their professional standing and their professional skills...they are connected in society to rich clients and rich business houses....it is a difficult situation, we understand, and what we are saying is also not on a permanent basis, but only for the COVID pandemic situation...we will ask the Government of India, but the major part of the funding should come from the bar associations", observed the CJ.
"The SCBA is doing extremely well", remarked the SG.
"The affidavit is inadequate. You are talking of the Advocates Welfare Fund which is already in existence...In this crisis, why don't you put your hands in your pocket and help out the other members of the bar who are your (bar associations') members?", asked the CJ.
"The High Court Bars generally, other than some like that of Delhi, have an inadequate ability. I have checked. But the Central and the state governments are statutorily required...", pressed Mr. Sinha.
"We will ask both. But primarily, it is the responsibility of the associations of advocates...Governments have to spend money on a lot of people...but how can we not tell your client that it is their primary responsibility?", asked the CJ.
"We have the responsibility, but in the last 7 months, much has been depleted....if bank loans can be given, the Bar Council could be the guarantor...", ventured Mr. S inha.
"Create a fund...we are not directing you on how much to pay into it...but there is no reason why every High Court must not have a fund...", asked the CJ.
"Some HCs did create a fund but in the last 8 month, everything has been exhausted...", answered Mr. Sinha.
Next, Senior Advocate Shekjhar Naphade sought to suggest, on behalf of the Bar Council of Maharashtra, affording loans to the advocates in distress. "Substantial amounts of grocery items have been distributed among the members of the fraternity recently", he submitted.
"That is not the kind of help we are talking about. Identify the advocates who need to be given loans and are who entitled to be helped...The deserving people and those in great difficulty may not be able to benefit from it...there is a power structure where the more powerful get whatever they want, while the other unfortunate, though deserving ones, miss out...", said the CJ.
"The bar council is taking steps to identify those who are engaged in small taluka courts...", submitted Mr. Napahde.
"You have to make a policy decision...If there is an advocate who was making a certain amount of income and, due to the pandemic, that income has gone down to 0, then I understand. But if there is an advocate who had no income even before the pandemic, would you like to give him an amount so that he starts making money now and it becomes a source of income? You have to be careful...the pandemic cannot become a boon", reflected the CJ.
"If an advocate has not suffered any loss on account of the pandemic, should an amount go to him like an income? Is the help for removing distress or for providing income", inquired the CJ.
"We are talking of loans, either interest free or at a lower rate of interest", clarified Mr. Napahde.
"And we are asking you to identify who is eligible for the assistance", said the CJ. "We need everybody's help on this aspect", noted the judge.
Senior Advocate A. E. Chelliah, a petitioner-in-person in a similar matter before the Madras High Court, sought to make some submissions. "Your matter is a transfer petition by the BCI. They are seeking transfer of the cases not only in Tamil Nadu but also in Telangana and Andhra Pradesh...We can't deal with it piecemeal. We will let the BCI argue..", observed the CJ.
When Senior Advocate Manan Kumar MIshra, BCI chairman, sought to make suggestions, the CJ said, "You are holding on to a matter that we are trying to get rid of", and proceeded to adjourn the hearing by 2 weeks.