Paragraph numbers below are the court’s original numbering, recovered from the source text.
21. Insofar as challenge to Rule 3 of the Allotment Rules, namely, pre-condition of being a member of SCBA before consideration of allotment of chambers in any of the three categories is concerned, it is pleaded that the same be retained as, according to them, there is no merit in the said contention.
22. After hearing the counsel for the parties as well as Mr. Maninder Singh, learned ASG and Mr. Vikas Singh, President, SCBA, we deem it appropriate to accept the suggestions contained in Paras 1, 2, 3 and 6 to 9 of the aforesaid ‘Note’ of suggestions.
23. This leaves us to decide the following issues: (a) Change of block period. (b) Validity of condition of membership of SCBA contained in Rule 3 of the Allotment Rules. (c) Validity of condition of resident of an advocate in Delhi/New Delhi contained in Rule 3.
24. Change of Block Period: We have already accepted the suggestions 1, 2 and 3 of the Note. The paragraph 4 of the Note, however, mentions that period of 730 days for fulfillment of the eligibility criteria shall be counted from the last cut-off date in 2004 till September 30, 2018. This suggestion cannot be accepted as it is way too off the mark and may have no connection with the active practice requirement of an advocate, having proximity with the date when the applications for allotment are invited. It hardly needs to be emphasised that pre-requisite for allotment of chamber is that the concerned advocate should be in active practice. That is why the eligibility criteria for member advocates is the requirement of 50 appearances per year in the block year; for AORs, it is minimum of 20 filings or 50 appearances in a period of one year for two years and minimum 40 filings or 100 appearances in a period of 730 days. However, if the cut-off date starts from the year 2004, this purpose may be lost in many cases, resulting in alloting the chambers to those who may be non-active as of today. There may be cases where a non-AOR or AOR may fulfil conditions of appearances/ filing in first 730 days starting from the year 2004 i.e. during the year 2004-2005 and thereafter he may not have any appearances or filings, or such appearances/filings may be negligible. Still he/she would become entitled to allotment of chamber. This would bring in such advocates who may not be in active practice in recent past. Such a situation cannot be countenanced. We, therefore, find rationale in the decision taken by the Judges’ Allotment Committee for fixing the block period from June 01, 2011 to June 30, 2016 as contained in the revised notice dated May 16, 2018 viz. fixing the block period which is proximate to the notice for making application for the allotment. Therefore, starting of cut-off date from the year 2004 is unacceptable.
25. Since, sometime has elapsed when the block period was fixed by the Judges’ Allotment Committee and we have extended the date for making application, the only modification which can be done is to put the block period from October 01, 2013 to September 30, 2018. It is during this period the applicant shall have to satisfy the criteria and appearances or filing as indicated above. GOPAL JHA v. THE HON’BLE SUPREME COURT OF INDIA [A. K. SIKRI, J.]
26. We are also not accepting the suggestion given in Para 5 of the Note that the allotment of chambers should be a continuous process. There has been a consistent practice in the past of inviting applications from time to time whenever lawyers’ chambers become available for allotment. It should be maintained as there is no reason to depart from the same. Otherwise, the purpose of fixing proximate block period shall also get defeated. At the same time, we also find that last such applications were invited in the year 2004 and considerable period has lapsed thereafter. Therefore, in order to ensure that such situation does not occur in future, we are of the opinion that Notice inviting such applications should be at least once in three years.
27. Validity of Rule 3 of the Allotment Rules: As per this rule, the membership of SCBA is essential to apply for allotment of chambers. Those petitioners who have challenged the validity of this rule submit that this eligibility criteria is discriminatory and violates the fundamental rights guaranteed to them under Articles 14, 19(1)(c) and 19(1)(g) of the Constitution. Expanding this argument, Mr. Gopal Sankaranarayanan, who appeared for writ petitioner in Writ Petition (Civil) No. 844 of 2018 submitted that SCAORA is also a represented body like SCBA and, therefore, membership of anyone of these bodies should be enough for making a person eligible to be considered for allotment of chambers. It was argued that SCAORA was also a vibrant body which was formed for the welfare of AOR. Therefore, the measure in the allotment of Lawyers’ Chambers Rules that restricts eligibility for allotment of chambers to members of the SCBA and excludes those who are members only of the SCAORA is manifestly arbitrary. Reliance is placed in this regard on the judgment of this Court in Shayara Bano v. Union of India1, where it was held as follows: “87. The thread of reasonableness runs through the entire fundamental rights chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three-Judge Bench decision in McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] when it is said that a constitutional challenge can succeed on the ground that a law is “disproportionate, excessive or unreasonable”, yet such challenge would fail on the very ground of the law being “unreasonable, 1(2017) 9 SCC 1 unnecessary or unwarranted”. The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.”
28. According to the petitioners, this provision violates Article 14 as well as it created unreasonable classification. The consequences of this unreasonable classification would be as follows: (i) As a result of the judgment of this Court in Supreme Court Bar Association & Ors. v. B.D. Kaushik2, only certain members of the SCBA are permitted to vote in elections, as they are treated as serious and regular practitioners in the Supreme Court. However, Rule 3 of the Allotment of Lawyers’ Chamber Rules makes no such distinction and, therefore, those members of the SCBA who are ineligible to vote in their own association are eligible to be allotted chambers of the Supreme Court. (ii) If an SCBA member were to be expelled for any reason, for example, if an SCBA member did not participate in the call for an illegal strike by the SCBA on the grounds that it would be contrary to the judgment of a Constitution Bench of this Court in Ex-Capt. Harish Uppal v. Union of India & Anr.3, such a member would be ineligible to apply for a chamber in the Supreme Court, whose very judgment he/she has sought to adhere to. (iii) The petitioners have contended that the allocation of chambers is a privilege afforded by the Supreme Court of India to those advocates practicing before it. When both the SCBA and the SCAORA have been recognised as advocates’ associations of equal importance, it would be inappropriate to extend such a privilege only to the members of one association and not the other.
29. It was also submitted that such a classification that excludes the association of those advocates as prescribed under Article 145(1)(a) of the Constitution of India read with the Supreme Court Rules, 2013 is GOPAL JHA v. THE HON’BLE SUPREME COURT OF INDIA [A. K. SIKRI, J.] 2 (2011) 13 SCC 774 3 (2003) 2 SCC 45 unreasonable and has no rational nexus with the object sought to be achieved, i.e., the allotment of chambers to the regular practitioners of the Supreme Court. Mr. Sankaranarayanan went to the extent of contending that given the role of AOR in the administration of justice by the Supreme Court, it was more important in nature than even SCBA. It was submitted that AOR are given pre-eminence position as they: (i) Undertake an examination administered by the Supreme Court; (ii) Are the only advocates authorised to act on behalf of a client in the Supreme Court; (iii) Adhere to strict stipulations regarding office location, maintenance of accounts and filing of returns, unlike any other class of advocates. (iv) Are recognized as such by judgments of this Court from 1964 onwards. This is even acknowledged by the Chamber Allotment Rules which earmarks nearly 70% of the chambers of the AOR.
30. He further argued that the impugned Rule amounts to a compulsion for AOR to become a member of the SCBA, which would make an inroad into the rights under Article 19(1)(c) of the Constitution of India, of such advocates who are already members of SCAORA by compelling them unreasonably to become members of another Court- affiliated organization.
31. Mr. Vikas Singh, learned senior counsel, who appeared in the capacity as President of SCBA as well as Mr. Maninder Singh, learned ASG defended Rule 3 of the Allotment Rules. It was submitted that SCBA is an umbrella association which represents the interests of all its members. Membership of SCBA was open to all advocates, irrespective of their category, namely, senior advocates, advocates, AOR as well as other advocates. It was also argued that as a representative body for all the members, it is SCBA which has discussions with the CJI and/or Judges on various issues and problems which may occur from time to time, to find mutual acceptable solution to such problems and issues.
32. It was further argued that this fact of SCBA, being an umbrella association, was even recognised by SCAORA itself which was reflected in the Rules and Regulations of SCAORA. Attention was drawn, in this behalf, to Rule 4 of the said Rules and Regulations which deals with admission and qualification for membership and prescribes that in order to become a member of SCAORA, it is necessary to have the membership of SCBA. Relevant portion of this Rule reads as under: “4. … A. An advocate may be considered for enrolment as Member of the Association if – (i) he is an Advocate-on-Record and Member of the Supreme Court Bar Association. (ii) he undertake to subscribe to the objects of the Association and abide by the rules and regulations framed by the Association from time to time; and (iii) he is considered suitable for Membership by the Executive Committee.”
33. Based on the aforesaid provisions, they argued that AOR cannot be a member of SCAORA unless he is a member of SCBA and, therefore, entire issue raised by the petitioners was academic in nature, since the contention of the petitioners proceeds on the basis that insofar as AOR is concerned, membership of SCAORA should be sufficient.
34. It was also submitted that nobody has any right to get allotment of chamber, much less a fundamental right and, therefore, the petitioners cannot invoke the provisions of Articles 14, 19(1)(c) and 19(1)(g) of the Constitution. Mr. Vikas Singh, in support, relied upon the judgment of this Court in Vinay Balachandra Joshi v. Registrar General, Supreme Court of India & Ors.4. It was a matter pertaining to allotment of chambers within the compound of the Supreme Court itself. One of the contentions of the petitioners therein was that not making available chambers to the AOR within the Supreme Court compound is violative of fundamental right under Article 19(1)(g) of the Constitution and this contention was rejected in the following manner: “4. We will first deal with the contention raised by the petitioners in Writ Petitions Nos. 883 and 1223 of 1990, that not making available chambers to the Advocates-on-Record within the GOPAL JHA v. THE HON’BLE SUPREME COURT OF INDIA [A. K. SIKRI, J.] 4(1998) 7 SCC 461 Supreme Court compound is violative of their fundamental right under Article 19(1)(g) of the Constitution. It was submitted that Article 19(1)(g) guarantees, inter alia, the right to practise any profession. Practising legal profession is thus a fundamental right. An Advocate-on-Record can exercise this fundamental right of his effectively only if he is provided with a chamber within the Supreme Court premises. Therefore, to make a chamber available to him is an integral part of his guaranteed fundamental right. We see no substance in this contention. Even if we proceed on the basis that to practise as an advocate is a fundamental right, no right to be allotted a chamber within the Court premises follows from it. A legal practitioner/an advocate can carry on his legal profession without a chamber. It is not necessary that he should have a chamber within the Court premises. That which merely facilitates the exercise of the fundamental right cannot be regarded as an integral part of that fundamental right. Far from being a fundamental right it does not even have the status of a right. No law confers such a right on a member of a legal profession nor such a facility has been accepted as a right even otherwise. Making a chamber available to a member of the legal profession practising in a court of law is really a facility provided to him by the Court. This is the true nature and character of the claim made by the Advocates-on-Record, not giving a chamber to him cannot be regarded as violative of Article 19(1)(g) of the Constitution. It may be stated that neither the learned Attorney General nor Mr Nariman, Mr Venugopal and other Senior Advocates supported this contention and very fairly stated that the view which we are taking namely that it is a facility provided by the Court is the correct view. 5. As it is not a matter of right or legal obligation of the Court to provide the facility of a chamber to an advocate it would really be a matter of discretion of the Principal Judge of the Court to decide to whom and to what extent that facility should be extended when the same is available; and his only obligation would be to act in a fair and just manner and not arbitrarily. It may be proper for him to frame rules, appoint a committee and fix guidelines for the purpose of allotment of chambers; but the obligation is no higher than to act in a reasonable manner. It would be for him to decide when, to whom, to what extent and on what terms and conditions he should allot chambers.” 35. Having regard to the existence of Rule 4 in the Rules and Regulations of SCAORA itself, the entire edifice of the petitioners case stands demolished. No doubt, SCAORA has its significant position in this Court. However, we are concerned with the issue of allotment of chambers. The petitioners have submitted that members of SCAORA should be treated as sufficient eligibility for allotment of chambers. Yet, in order to become a member of SCAORA, as per Rule 4 of the Rules and Regulations of SCAORA itself, an advocate has to be the member of SCBA. Therefore, unless an advocate is an AOR and also a member of SCBA, he cannot become the member of SCAORA. This requirement itself accepts the position that SCBA is an umbrella organisation and also recognises the vital role it plays. Thus, the argument based on Article 14 of the Constitution would be of no avail. 36. The respondents are also correct in their submission that there is no fundamental right or any statutory right for allotment of chambers in any court premises. This aspect has already been decided in Vinay Balachandra Joshi, relevant discussion whereof has been reproduced above. Further, in the counter affidavit filed on behalf of respondent No. 1, significance of membership of SCBA is highlighted in order to avail various facilities. It is, inter alia, stated that facilities like Library, Parking, Canteen, Medical etc. become available only to the members of the Bar Association of the concerned courts and such a stipulation is prevalent in almost every court in the country. Counter affidavit goes on to make the following averments: “6. It is respectfully submitted that there is no fundamental and/ or any statutory right much less any indefeasible right of allotment of Chambers in any Court premises. It may, however, be submitted that each Court in the country always endeavours to extend (within its resources and availability of place etc.) maximum facilities to the Ld. Advocates for facilitating the process of administration of justice and for making it more efficient. It is also a fact, as observed in past so many decades, that the Ld. Advocates practicing at any Court – for a large number of reasons including for the better coordination with the Court authorities for achieving efficiency in GOPAL JHA v. THE HON’BLE SUPREME COURT OF INDIA [A. K. SIKRI, J.] the process of administration of justice, do form Bar Association not only for conducting and regulating the internal affairs of their Members but also for coordinating (as one unified class) with the Court authorities for achieving and securing betterment and improvement of the justice delivery system at any Court. It is a matter of common knowledge that such Bar Associations are in existence, from the inception of the modern Court system itself and are active in their own sphere. The Supreme Court also has in place, the Supreme Court Bar Association and which is taking care of the interest of its members and also coordinates with the authorities of the Supreme Court for welfare of its Members and also for further improvements in the justice delivery system at the Supreme Court. xx xx xx Without prejudice to the above, it is most respectfully reiterated that after securing enrolment as an Advocate under the Advocates Act, 1961 – the Ld. Advocates, for consideration for being extended certain facilities at the respective Court premises, are made obliged to also obtain membership with the local Bar Association, which also provides an additional forum/mechanism (besides and in addition to the Court authorities itself) to facilitate and regulate the conduct/affairs of the Ld. Advocates practicing before any Court of law. It is most humbly submitted that contentions to the contrary raised in the present Writ Petition seeking to question the correctness and validity of the above-mentioned Rule obliging the Ld. Advocates to secure the Membership of SCBA for consideration for extending the facility of allotment of Chamber is entirely valid and legal.” 37. We, therefore, do not find any reason to interfere with the requirement of being a member of SCBA for submitting application for allotment of chambers. 38. Alternative submission of the petitioners is that if the rule is upheld, an opportunity should be given to those members of SCAORA, who have not become the members of SCBA so far, to apply and become the member of SCBA even now and on that condition, their applications for allotment of chambers be entertained. Insofar as this submission is concerned, once the petitioners or other similarly situated persons become members of SCBA, they can make such a request to the Chambers Committee while making their applications for allotment of chambers and it will be for the Chambers Committee to take a view thereupon. 39. Prescription of the requirement of resident in Delhi or New Delhi in Rule 3 of the Allotment Rules: In one of the petitions, this provision is challenged. It is submitted that there is no rationale in prescribing the condition that an advocate to become eligible for allotment of chamber should be a resident in Delhi or New Delhi. Argument was that in last few years, there was exponential growth in the population of Delhi which, inter alia, necessitated people to shift in areas nearby, like Noida or Ghaziabad in Uttar Pradesh, Faridabad or Gurugram in Haryana. It was submitted that the only purpose for making the aforesaid provision was that the advocate who is practicing in Supreme Court is readily available and, therefore, he is living in the vicinity of the Supreme Court. It was submitted that some of the areas which are mentioned above are closer to the Supreme Court than many areas in Delhi itself. Therefore, such a provision has lost its rationality and purpose. The petitioners in Writ Petition (Civil) No. 1063 of 2018 submits that insofar as he is concerned, if an aerial distance is taken, his residence falls within 16km radius as he is residing in Indirapuram, Ghaziabad (U.P.). Plea is that if the definition of resident member is seen, as defined in Rule 3(ix), it means a member residing and practicing as an advocate in Delhi or its suburbs and “suburbs” clearly includes NCR also. Therefore, all those who are staying in NCR should be made eligible for allotment of chambers. 40. We are of the opinion that having regard to the changed circumstances and the manner in which areas around Delhi have developed in past few years, many advocates who appear in courts in Delhi, including the Supreme Court, commute on daily basis from their residences which fall in neighbouring States. It is time to reconsider as to whether requirement of residence in Delhi or New Delhi in Rule 3 of the Allotment Rules needs to be retained or it should be extended to some areas of neighbouring States which are quite close to the vicinity of the Supreme Court. May be, by fixing a particular radial distance from the Supreme Court, the problem can be tackled. As it would require consideration on so many aspects, we are of the opinion that this issue GOPAL JHA v. THE HON’BLE SUPREME COURT OF INDIA [A. K. SIKRI, J.] can be considered by the Judges’ Allotment Committee. We make it clear that it is for the Committee to take a final view on this issue, after taking into consideration all the relevant factors. 41. All these writ petitions stand disposed of in the aforesaid terms. Divya Pandey Writ Petitions disposed of.