The Madras High Court has recently criticised the Madras Bar Association for its stringent bylaws, which make it difficult for an ordinary advocate to join the Association. Justice SM Subramaniam noted that the Association’s bylaws had been drafted in such a way that it is difficult for ordinary Advocates to obtain membership, resulting in class discrimination. The Court also noted that such elitism could not be tolerated in a public place using public funds because the organisation was operating on court grounds and enjoying all the benefits, including free electricity.
“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.
This case was filed by Senior Advocate Elephant Rajendran, who claimed that another Senior Advocate, Mr. P.H. Pandian, prevented his son Neil Rashan from consuming water in the MBA hall. Since the Association was supported by public funds, Rajendran argued that the facilities could not be denied to other practising attorneys. He added that the Association’s actions were discriminatory and prevented solicitors from using public facilities.
It was argued that the Association did not follow a transparent and democratic norm/guideline when accepting new members. He also stated that the Association’s conducting meetings, parties, etc., within the Madras High Court’s High-Security Zone presented a threat to the High Court. several instances of discrimination were brought to the Court’s attention, in which the Association arbitrarily and discriminatorily rejected the membership applications of various individuals.
The Court stated that social issues did not expire with individuals and that addressing them was necessary for the country’s future. The Court added that such issues could not be treated with indifference because they would impact the development of the Justice Delivery System’s future attorneys. The Court also noted that it was the responsibility of the Judicial Institutions to provide a conducive environment for all practising solicitors, allowing them to have the utmost confidence in 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.
Noting that practising solicitors cannot be denied access to potable water on the basis of membership alone, the Court added that the current case was regrettable and that both bar and bench should avoid such trivial and unwarranted circumstances.
“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.”
“untouchability” encompasses all types of social exclusion.
The Court noted that “untouchability” encompassed not only caste-based discrimination but also all forms of social ostracism and exclusion based on ritual notions of purity/impurity and hierarchy/subordination. A broad interpretation of Article 17 encompasses not only the caste-based practise of untouchability but also practises that bore a family resemblance to “untouchability” “This requires the Court to determine whether a particular practise, such as untouchability, is a practise of social subordination, exclusion, and segregation based on the notion that certain personal characteristics can justify relegating individuals to a subordinate position in society,”.
Associations that deny membership to solicitors constitute discrimination
Regarding membership, the Court stated that the choice of membership in an Association rests with the individual Advocate, not the Association. Even though organising an association was a fundamental right, the Court is obligated to admit that any willing attorney should be able to join when the Association is formed on court property.
“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.
“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.
A society of elite lawyers cannot be established with public funds
Referring to the MBA’s restrictive membership requirements, the Court questioned whether they intended to establish an elite society of solicitors. Consequently, the same cannot be created at the expense of the public, the document added. There are allegations that the children of dignitaries are enrolled as members based on irrelevant factors.
“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”.
Referencing the provisions of the Advocates Act and the BCI Rules, the Court stated that the choice of membership in an Association is not made by the Association but by each individual Advocate.
Since lawyers are a homogeneous group, economic distinctions cannot be made between them.
“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.
Consequently, the Court ordered the Bar Association to pay five lakh rupees in compensation.
The Court also ordered the Association to admit Mohandoss and Shivaji, whose membership applications had been outstanding for a long time. It also ordered the Association to distribute membership applications to all interested lawyers practising in the High Court and to admit them without 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 a member of the Madras Bar Association or by amending the Bye-Laws suitably”
In the event of failure by the second respondent, the Madras High Court Administration and the Bar Council of Tamil Nadu are required by law to initiate all appropriate measures.
Due to safety and security concerns, the Court also noted that the Association was required to acquire permission from the Registrar General before conducting or holding any celebrations.
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]