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Criticising Bar Council Decision, Motivated Comment Against Judges Are Grounds For Disqualification Of Advocates: BCI Amends Rules [READ NOTIFICATION]

As per the amendments, an advocate shall not be permitted to publish anything or to make any statement or press-release in the media against any resolution or order of a State Bar Council or the Bar Council of India

By: Nidhi N. Anand, Ramaiah College of Law

The Bar Council of India (BCI) has amended its Rules to make any assertion made with the aid of using an advocate that’s indecent or derogatory, defamatory, motivated, malicious, or mischievous towards any court, judge, State Bar Council, or the BCI, a ground for suspension or cancellation of license to practice law. Further, criticizing or attacking any decision of any State Bar Council or Bar Council of India on a public domain can even amount to “misconduct,” that may entice disqualification or suspension.

The new amendment was notified in the gazette on June 25, 2021. Two new provisions have been inserted in this regard withinside the BCI Rules: The first turned into the insertion of Section V in Part-VI, Chapter-II of the Bar Council of India Rules and the second being insertion of Section VA. While the former lays down Duties towards Society and Bar, the latter prescribes Code of conduct and Disqualification for members of Bar Councils. 

“Section V – Duties towards Society and Bar :— An Advocate shall conduct himself/herself as a gentleman/gentlewoman in his/her day to day existence and he/she shall not do any unlawful act, he/she shall not make any statement in the Print, Electronic or Social Media, which is indecent or derogatory, defamatory or motivated, malicious or mischievous against any Court or Judge or any member of Judiciary, or against State Bar Council or Bar Council of India.

Any such act/behavior shall amount to misconduct and such Advocates could be susceptible to be proceeded under Sections 35 or 36 of the Advocates Act, 1961, it stated.

Section 35 prescribes punishment for misconduct which may be suspension from exercise or disqualification. Any willful violation, disregard, or defiance of any decision or order of the State Bar Council or Bar Council of India may also be construed as misconduct, the amendment similarly said. 

Section VA lays down the Code of conduct and Disqualification for members of Bar Councils. It provides that no member of any State Bar Council or Bar Council of India shall be permitted to publish anything or to make any statement or press release in print, electronic or social media against any resolution or order of concerned State Bar Council or Bar Council of India or to make/use any derogatory or abusive language/comment/s/ word/s against the Bar Council or its office-bearers or members. 

Further, the decision of any State Bar Council or the Bar Council of India shall not be criticized or attacked by any Member/s of Bar Council in the public domain. Violation of the same could additionally bring about suspension or disqualification.

However, a proviso to Section VA clarified that wholesome and legitimate criticism made in proper faith, shall not be treated as “misconduct.”

Furthermore, a 3 Member Committee shall be required to hold an inquiry for declaring any Advocate or Member of Bar Council as disqualified from contesting the elections. The Committee shall be headed by a Former Chief Justice or a former Judge of any High Court and shall be constituted by the Bar Council of India consisting of any member of Bar Council of India or a Member or Office-Bearer of any State Bar Council or any Advocate with a minimum of 25 years of standing at the Bar.

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Plea In Bombay High Court By Bidi And Tobacco Traders Claims Smoking May Reduce Risk Against COVID [READ ORDER]

In April 2021, while hearing a plea on Covid-19 management in Maharashtra, the High Court recommended putting a ban on the sale of cigarettes and bidis during the pandemic, as it would greatly affect the lungs of those infected

By: Surbhi kumari, Amity University, Patna

The Bidi and Tobacco Traders and Federation of Retailers have filed a plea before the Bombay High Court claiming that people who smoke cigarettes and other nicotine products are less vulnerable to COVID-19. The plea has been filed as intervention applications in a suit pending before the High Court relating to alleged improper management of COVID-19 treatment in the State of Maharashtra.

A division bench of Chief Justice Dipankar Datta and Justice GS Kulkarni permitted the intervention applications and posted the hearing on this issue for the next week.

The applicants, Mumbai Bidi Tambakhu Vyapari Sangh and Federation of Retailers Association of India have sought intervention in that case, wherein the Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni had suggested, during its hearing in April 2021, that cigarettes and bidis should be temporarily banned during the pandemic period considering it may have a correlation with the rise in COVID severe cases.

Advocate General Ashutosh Kumbhakoni submitted a report by the Director of the Tata Memorial Centre working under the Atomic Energy Department of Central government indicating that smokers were a more vulnerable group to contracting COVID-19.

He submitted that a majority of the studies indicated that the degree of severity of the COVID infection was higher in people who smoked cigarettes.

In response, Senior Advocate Ravi Kadam, appearing for the Federation of Retailers, submitted his contrary opinion based on studies conducted by the Council for Scientific & Industrial Research.

He submitted that a report by CSIR indicated that the smokers were less vulnerable to the COVID-19 infection. He further claimed the article in fact stated that smoking protects persons from COVID-19 infection.

Mr. Setalvad, learned senior advocate appearing for the applicant in Interim Application No. 1342 of 2021, viz. Mumbai Bidi Tambakhu Vyapari Sangh submitted that there are research and media reports which present evidence that smoking helps “prevent and relieve Covid-19,” based on the pleadings as well as reports annexed to the application.

The court took note of paragraph 13 of the application which stated that reports/studies have negated any correlation between smoking and susceptibility to Covid-19 and instead suggest using “nicotine as a potential preventive agent against Covid-19 infection.”

It was also stated that nicotine which is a substance present in cigarettes purportedly prevents the COVID virus from entering the lungs.

The Court observed that this statement in the application seemed to indicate that there was no correlation between smoking and the susceptibility of COVID-19. When the Court expressed reservation for relying on a report submitted by CSIR on a subject under the medical field, considering that the CSIR does not have expertise in the medical field, the counsel responded that the reports were made after consulting doctors.

The Court then agreed to hear the intervention applications in detail on the limited issue of the effect of smoking on the COVID and posted the case for hearing on July 8.

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Advocates Lounging On Bed, Appearing With Face Pack Unacceptable: Allahabad High Court Prescribes Dress Code For Lawyers [READ ORDER]

The Court ordered that lawyers are required to wear ‘plain white shirt/ white salwar- kameez/ white saree with plain white neck band’ while appearing through virtual mode. It was said that the High court should advise its members to refrain from adopting any casual approach while appearing before this court through virtual mode as it may cause hurdles in the administration of justice

By: Surbhi Kumari, Amity University Patna

While reiterating the dress code to be strictly followed by lawyers while appearing before the virtual court, the Allahabad High Court in Smt. Jyoti v. State of Uttar Pradesh observed that Advocates appearing for court hearings through video conference while driving scooters, lounging on the bed, wearing colorful clothes, or putting on a face pack cannot be accepted. 

The Single-judge bench of Justice Saurabh Shyam Shamshery directed that lawyers are required to wear ‘plain white shirt/ white salwar- kameez/ white saree with plain white neck band’ while appearing through virtual mode.

It was observed by Justice Shamshery that advocates must understand that their appearance for hearing of cases through the virtual mode from their house or office or chamber is like an extended courtroom and it is equally as serious as attending physical court proceedings inside the courtroom.

The court observed that “Even the Supreme Court had witnessed various incidents, where many advocates adopted very casual approach while appearing through virtual mode and appeared wearing vest, tee shirt or coloured shirt, in puja attire, while driving scooter, while taking a leisurely walk, sitting inside a stationed vehicle, from market places, places with noisy surrounding, places with unpleasant backgrounds, keep talking on phone or not paying attention to the court though video and audio tab remained on, even an advocate appeared lounging on the bed and a lady advocate with face pack on.”

The Court laid emphasis on the fact that the appearance of advocates in causal attire is very inappropriate and unacceptable in any circumstance. In this regard, the court said that the office-bearers of the Bar Associations of the High Court should advise its members, not to adopt any casual approach while appearing before this Court through virtual mode “which may cause hurdle in the administration of justice.”

The observations were made after the video link sent to the counsel for a bail applicant remained non-responsive. The Court observed in its order that relaxation has been extended by different courts with regard to advocate’s dress code by exempting coat and gown while appearing through video conference.

It was further noted that the decision by the Bar Council of India relaxed the dress code for advocates across the country as it stated that all advocates can/may wear “plain white shirt/ white salwar-kameez/ white saree with plain white neckband” during hearings/proceedings before all the courts across the country, and no “coats or gowns are needed.” However, many advocates have adopted a casual approach while appearing through video conferences which cannot be allowed, the Court said.

“Even today while hearing the present case through virtual mode, an advocate, appearing on behalf of one of the parties, appeared wearing a coloured shirt and has not shown any remorse despite his conduct was objected,” the Court noted.

The Court, therefore, directed that lawyers are required to wear ‘plain white shirt/ white salwar- kameez/ white saree with plain white neck band’ while appearing through virtual mode.

It was further said that lawyers should address the Court from a premise which has a decent and presentable background with peaceful surrounding and to remain attentive towards the court. The Court finally added that it would be appreciated if they wear black coats also.

The matter will be heard again on July 28.

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Decision To Choose Partner Rests On Individual; State, Society Can’t Intrude: Bombay HC Rejects Habeas Corpus Plea By Major Girl’s Father [READ ORDER]

In Junned Ahmed Mujib Khan v. State of Maharashtra, the Aurangabad Bench observed that the intimacies of marriage, including individual choices on whether or not or whom to marry, lie outside the State control and need to be safeguarded by the Constitutional Courts

By: Nidhi N. Anand, Ramaiah College of Law

The State or society cannot intrude into the right of an individual to choose his/ her marital partner and that decision rests solely on the individual, the Bombay High Court recently said while rejecting a Habeas Corpus petition filed by the father of a woman . The observation was made by a Bench of Justices VK Jadhav and SD Kulkarni in a petition by Junned Ahmed Mujib Khan, the petitioner, seeking directions to produce his daughter Khaleda Subiya in Court and to handover her custody to him.

The daughter was a minor at the time when she went missing though she had attained the majority by the time the case was heard.

The petitioner nevertheless asked the Court to invoke its ‘parens patriae’ jurisdiction on the ground that even though the missing girl is now major, she is a vulnerable adult. The Court, however, rejected the same.

The Court also interacted with the girl in open court and examined her statement wherein she clearly stated that she wanted to continue living with her husband and not with her parents.

The court said that parens patriae jurisdiction of the Court should not transgress into an area of determining the suitability of the partners to a marital tie.

Reliance was placed upon Supreme Court  judgments, particularly the Hadiya case judgment, to hold that Court that parens patriae doctrine has to be exercised only in exceptional situations in case of persons who are incapable of asserting free will such as minors or persons of unsound mind.

The petitioner claimed that his daughter was kidnapped from Aurangabad in 2019 and thereafter, a complaint was lodged with the police leading to registration of FIR against unknown persons. Few days later, the petitioner’s wife informed him that one Fukran Khan was allegedly responsible for the incident and had kidnapped their daughter in collusion with his parents.

Despite recording this statement, the police purportedly did not proceed to take any steps for finding out the whereabouts of the petitioner’s daughter, compelling him to approach the High Court under the writ jurisdiction.

As per the daughter’s version, she had a child in September 2020 when she was nine months short of being an adult and had gotten married in June 2021. The Court discovered that the daughter had expressed her desire to marry her present husband. However, her parents had refused to grant permission for the same. The daughter contended that when she pursued her desire, her parents even subjected her to physical assault and was sent to her maternal uncle’s house from where she ran away to Nagpur. After contacting her husband, the couple moved to Bhainsa in Telangana where she gave birth to a child and got married.

Advocate AV Indrale Patil submitted that in the peculiar facts of the present case it would be just and proper for the Court to invoke the parens patriae doctrine.

The Court observed that while the petitioner-father approached the Court with the bonafide intention to protect the interest of his daughter, the same could not be at the cost to curtail the fundamental rights of the daughter, who, out of her own free will voluntarily got married.

In view of the facts of the present case, the Court opined that the doctrine of parens patriae is inapplicable. The Court, therefore, ordered that the girl is at liberty to live her life in accordance with law.

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Karnataka High Court Has Granted Default Bail To 115 People Arrested Over The East Bengaluru Riots [READ ORDER]

In the case of Muzammil Pasha v. National Investigation Agency, the Karnataka High Court has granted default bail under Section 167(2) of the Criminal Procedure Code (CrPC) to 115 persons accused in cases registered in connection with the Bangalore Riots of August 2020

By: Gurleen Kaur Anand, Amity University, Mumbai

Justice S. Vishwajith Shetty passed the order while allowing petitions filed by Muzamil Pasha and 115 others who were arrested on August 12, 2020.

It was observed that “The order dated 03.11.2020 passed on the application filed by the prosecution under the first proviso to Section 43-D(2)(b) of the Unlawful Activities (Prevention) Act, 1967, seeking extension of time for completion of the investigation and also the order dated 05.01.2021 passed by the Special N.I.A. Court, Bangalore (CCH-50) on the application filed by the petitioners under Section 167(2) of the Code of Criminal Procedure, are hereby set aside.”

The court observed “The fundamental right of an individual recognized under Article 21 of the Constitution of India cannot be defeated other than in accordance with law. Since the order passed by the trial court on the application filed by the prosecution seeking extension of time for completion of the investigation is already held to be bad in law, the statutory right that has accrued to the petitioners/accused immediately after the completion of the first 90 days of period which right has been availed of by them by filing an application under Section 167(2) of the Code, seeking statutory bail and also offering surety cannot be denied to the petitioners.

The High Court set aside a special court’s order giving the National Investigation Agency (NIA) an additional 90 days for completing the investigation. The court said such extension of time without the accused being notified is legally unsustainable.

The High Court opined that the special court order extending the time granted for filing chargesheet cannot be legally sustained since the petitioners were not heard before deciding the application for extension of time.

“Since the petitioners were not given an opportunity of being heard before passing an order on the application filed by the prosecution for extension of time for completion of the investigation and since the petitioners were not kept present before the court when the application filed by the prosecution for extension of time for completion of the investigation was being considered and since the petitioners were not notified that such an application filed by the prosecution was being considered by the court for the purpose of extending the time for completion of investigation, I am of the considered opinion that the order passed by the trial court on the application filed by the prosecution under the first proviso to Section 43-D(2)(b) of the Act of 1967 extending the time to complete the investigation is legally unsustainable,” the High Court said.

The Court also turned down the contention by the prosecution that considering the fact that charge sheet was already filed by the prosecution during the extended period, accused can very well apply for a regular bail under Section 439 of the CrPC having regard to the fact that charge sheet has already been filed.

“In view of the law laid down in Bikramjit Singh’s case, merely for the reason that the charge sheet has now been filed, it will not take away the indefeasible right of the petitioners, if it has accrued in their favour,” the Court said.

With these observations, the Court proceeded to grant default bail to all the accused persons and set aside the NIA order.

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