In the early days of April 2020, the Supreme Court Bar Association set up a helping scheme to provide financial assistance to its needy members from the existing deposits. Subsequently, various States’ Bar Council dealt with similar considerations while the Bar Council of Delhi provided a sum of rupees 5000 to its needy members.
Issues before the Court
- Whether the Bar Council of India should be directed to provide financial assistance over and above the amount granted at present.
- Whether the court can enforce the obligation of statutory bodies to take care of the welfare of its members.
Arguments before the Court
Mr Bhuvnesh Sharma, the petitioner in person, apprised the Court of the insufficiency of financial grants issued by the Bar Council of India. In addition to this, a request to release funds for the welfare of advocates was also made to the State Government, however, it did not attend the issue.
The petitioner further submitted that the Bar Council of Delhi provided a sum of rupees 5000 to its needy members. Hence, the Court may direct the issuance of sufficient funds under the aegis of the State Government and Bar Council of India. They also highlighted the obligation of statutory bodies, the Bar Council of India and Rajasthan in the present case, to ensure the welfare of its members.
The Court held the provision of financial assistance to a certain class of persons to be a ‘matter of policy’ to be considered by the State Government and Bar Council of India according to the availability of resources. The Court shall not indulge in the writ jurisdiction posed in such matters.
In the present case, the petitioners were seeking assistance due to the long period of suspension of services owing to the COVID-19 pandemic. The lockdown period has multifold implications on various professionals and class of persons, however, the financial needs for basic sustenance are met only by few. Therefore, the government at Centre and State and different Statutory Bodies have been providing financial assistance to the needy members on several occasions.
While analyzing the ratio laid in the case at hand, the Court has stated precedence of the terms ‘certain class of persons’ and ‘matters of policy’ over the statutory obligation as argued by the petitioners.
Firstly, professions/ characteristics of ‘certain class of persons’ for direct eligibility is to be ascertained. Till date, financial assistance has been provided to daily wage earners, street vendors, auto drivers, a rickshaw puller, porters working at agricultural wholesale markets and other persons in the unorganised sector. The Finance Minister, earlier in the month had announced assistance of a certain sum for the next three months to 20.5 crore women working in unorganized sector. Unlike those women, advocates under the State Bar Council belongs to the organized sector, which is constituted as a statutory body for the welfare of its members.
Secondly, the phrase ‘matters of policy’ have been dealt with by the Court in the past. In the case of Kanhaiya Lal Sethia v. UOI (1997), the Delhi High Court held that the courts do not interfere in the matters of the policy unless it violates the mandate of the Constitution or any statutory provision or is otherwise actuated by mala fides. Moreover, the rule of law and doctrine of separation of power provides for the judicial and non- judicial functions, thus the courts tend not to indulge in any executive/ legislative action and the matters of policy of other organs of the State.
However, in the present case, the court has struck a balance by neither allowing the petition nor barring the way of petitioners to seek its financial assistance and pursuing their demand to the Government and the Bar Council of India and Rajasthan.
The decision was pronounced by two-judges division bench constituting of Chief Justice Indrajit Mahanty and Justice Satish Kumar Sharma. It held no interference of Court in matters of policy, however, directed the Bar Council of Rajasthan to first seek provisions at its resources. The Council may also request the Bar Council of India to sanction additional funds and pursue its request for early considerations with the State Government.
In the light of order issued by the Court, the Bar Council of Rajasthan has announced distribution of rupees 5000 each to the needy advocates. The amount is created from the Bar Council of India Welfare Fund for the State of Rajasthan. It has called for applications from distressed members according to the eligibility criteria by May 3, 2020 to identify the beneficiaries of the Fund. It further reprimanded that any fraudulent activity with respect to the scheme shall attract disciplinary action under Section 35 of the Advocates Act, 1961.
Moreover, in an order issued on 21.04.2020 by the Madras High Court, it has dismissed the plea for reduction of salary of Government servants on the grounds of ‘matter of policy’ and no issuance of positive direction towards deduction of the portion of salary. Thus, the principle laid in the present case has been re-iterated in a parallel court.
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