Supreme Court BCI Complaints Against Advocates State Bar Councils

Noting that "to have the discipline and maintain the purity of the profession, the complaints made by the concerned litigants are required to be disposed off at the earliest so that the litigants may continue to have faith in the justice delivery system and in the profession", the Supreme Court on Thursday, "as a last chance", extended the time for the BCI to dispose off the complaints against advocates received by it and/or transferred to it by 3 months i.e. by 31 December 2022.

By its judgment of 17.12.2021, after taking into consideration Section 35 and Section 36B of the Advocates Act, the Court had directed the Bar Council of India to issue appropriate directions to the concerned state Bar Councils to decide and dispose off the complaints within a period of one year from the date of receipt of such complaints/proceedings and on failure to dispose off the same within a period of one year, all such complaints be transferred to BCI for its decision. The Court had passed a detailed judgment and order/directions directing the BCI to see to it that all pending complaints pending before the concerned state Bar Councils pending since more than one year be transferred to the BCI for its decision considering Section 36B of the Advocates Act. Therefore, as such, the BCI was required to finally decide and dispose of the transferred complaints.

On Wednesday, the bench of Justices M. R. Shah and Krishna Murari was hearing a contempt petition in connection with the aforesaid judgment.

Justice Shah to Senior Advocate and BCI Chairman Manan Mishra: "When the litigant goes to the bar council, initially he goes to the bar Council of the concerned state. When the state bar council did not take any action, thereafter the cases are deemed to have been transferred to the bar Council of India. Now if they are also taking 1, 2, 3, 4 years, what will happen? Indiscipline cannot be tolerated"

Justice Krishna Murari: "Even if the complaint is false, just see where the advocates are hanging"

Justice Shah: "If somebody has committed misconduct, he should be punished. If he has not done anything, then he should be exonerated!"

Mr. Mishra: "Justice Krishna Murari would know how slack the UP bar council is. So many orders had to be passed against the bar Council of UP..."

Justice Krishna Murari: " That is for you to control"

Justice Shah: "Don't blame the bar council because of the fact that now, the cases are transferred to the bar council of India. They are all your enquiry officers, They are not the enquiry officers of the concerned bar council"

Mr. Mishra: "The information was to come through the state bar councils..."

Justice Shah: "You have to depend upon the enquiry officers only, you cannot depend upon every state bar council. After the evidence is recorded, report is submitted by the enquiry officer, the proceeding would come back to the bar Council of India. You have to expedite, counsel, if you want to maintain the discipline in your profession!"

Mr. Mishra: "If Your Lordships permit, we have plans to hold the circuit benches in the respective state bar councils for disposal..."

Justice Shah: "Do that. Whatever has to be done is to be done by the bar Council of India, because now all proceedings are transferred to the bar Council of India. Disciplinary authority will not be the bar council of the concerned state but the bar Council of India, because all cases are transferred under section 36B. All enquiry officers are appointed by you!"

Mr. Mishra: "We are requesting for 3 months..."

The bench then proceeded to dictate the following order- "An application has been filed for extension of time for compliance of order dated 1. 8. 2022 with affidavit and a chart reflecting state-wise numbers of cases pending enquiry. Having gone through the chart, it appears that in most of the cases/complaints where the enquiry is transferred to the bar Council of India, the concerned enquiry officers appointed by the bar Council of India have not submitted the report and consequently the respective complaints are not disposed off. Shri Manan Mishra, senior advocate and chairman of bar Council of India, prays for extension of time to complete the enquiry transferred to the bar Council of India by a further period of three months. He has also stated that the expeditious disposal of the complaints received by the bar Council of India and/or transferred to the bar Council of India and the hearing of the parties in the respective complaints shall be facilitated by having circuit benches in the respective states. As a last chance, we extend the time to dispose off the complaints received by the BCI or transferred to the BCI until 31 December 2022. The bar Council of India must decide and dispose off the complaints received by it and/or transferred to the bar Council of India from the bar councils of the concerned state where they were pending for more than one year and were required to be transferred in exercise of the power under section 36B of the advocates act. To have the discipline and maintain the purity of the profession, the complaints made by the concerned litigants are required to be disposed off at the earliest so that the litigants may continue to have faith in the justice delivery system and in the profession. One grievance which is raised by the applicant party-in-person is that despite the fact that the complaints are pending for more than one year, the concerned state bar councils have not transferred the cases to the bar Council of India. The grievance is voiced with respect to the bar Council of Maharashtra and Goa. Without expressing anything on the correctness of the statement, we once again reiterate our earlier orders and direct that for all concerned state bar councils Before whom Complaints are pending for more than one year shall stand transferred to the bar council of India. As ordered earlier, the bar Council of India must ensure the early disposal of those cases which are transferred and or deemed to have been transferred by our earlier order and the present order"

Case Title:  CHARANJEET SINGH CHNDERPAL v. VASANT D. SALUNKHE AND ORS.

https://www.livelaw.in/top-stories/supreme-court-bci-complaints-against-advocates-state-bar-councils-210746

അവിവാഹിതർക്കും ഗർഭഛിദ്രത്തിന് അവകാശം. സുപ്രീം കോടതി

In a significant judgment, the Supreme Court on Thursday declared that unmarried women are also entitled to seek abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship.

The Court ruled that exclusion of unmarried women who conceive out of live-in relationship from the Medical Termination of Pregnancy Rules is unconstitutional.

"All women are entitled to safe and legal abortion", the Court said noting that the 2021 amendment to the Medical Termination of Pregnancy Act does not make a distinction between married and unmarried women.

The issue relates to whether the exclusion of unmarried woman, whose pregnancy arises out of consensual relationship, from Rule 3B of the Medical Termination of Pregnancy Rules is valid. Rule 3B mentions the categories of woman whose pregnancy in the duration of 20-24 weeks can be terminated.

Distinction between married and unmarried women unsustainable

"If Rule 3B(c) is understood as only for married women, it would perpetuate the stereotype that only married women indulge in sexual activities.This is not constitutionally sustainable.The artificial distinction between married and unmarried women cannot be sustained. Women must have autonomy to have free exercise of these rights", Justice Chandrachud, the presiding judge of the bench, read out the excerpts of the judgment.

"The rights of reproductive autonomy give an unmarried women similar rights as a married women", the Court added. The object of section 3(2)(b) of the MTP Act is in allowing woman to undergo abortion after 20-24 weeks. Therefore, including only married and excluding unmarried woman will be violative of Article 14 of the Constitution.

Reproductive right part of individual autonomy 

The foetus relies on the woman's body to sustain. Therefore, the decision to terminate is firmly rooted in their right of bodily autonomy. If the State forces a woman to carry an unwanted pregnancy to the full term, it will amount to an affront to her dignity. 

A Bench comprising Justices D.Y. Chandrachud, A.S. Bopanna and J.B. Pardiwala had reserved judgment in the case on August 23.

Law must be interpreted keeping in mind changing social mores

When the MTP Act was enacted in 1971, it was largely concerning the married woman. But as societal norms and mores change, law must also adapt. Changing social mores must be borne in mind while interpreting provisions. Societal realities indicates the need to recognise legally non-traditional family structures.

Judgment delivered on International Safe Abortion day

After the judgment was pronounced, a lawyer informed the bench that today happens to be the international safe abortion day.

"I had no idea that this would coincide with safe abortion day. Thank you for informing us", Justice Chandrachud remarked.

Which are the categories of women included in Rule 3B?

The categories of women mentioned in Rule 3B of the MTP Rules framed by the Central Government are :

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

These categories were added in the MTP Rules by the Central Government following the 2021 amendment to the MTP Act, which raised the ceiling limit for termination of pregnancy. 

Background

The case arose when a 25 year old unmarried woman approached the Delhi High Court seeking termination of her pregnancy of 23 weeks and 5 days stating that her pregnancy arose out of a consensual relationship, however, she could not give birth to the child as she was an unmarried woman and her partner had refused to marry her. However, a division bench of Delhi High Court comprising Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad refused interim relief to her. The High Court observed that unmarried women, whose pregnancy arose out of a consensual relationship, was not covered by any of the Clauses under the Medical Termination of Pregnancy Rules, 2003.

She then approached the Supreme Court which, on 21st July, 2022 passed an ad-interim order allowing her to abort her pregnancy subject to a medical board constituted by the AIIMS Delhi concluding that the foetus could be aborted without risk to the life of the woman.

The Supreme Court bench was of the view that the Delhi High Court had taken an "unduly restrictive view" inasmuch as Rule 3(b) speaks of "change in marital status" of woman, followed by expressions widowhood or divorce. It held that expression "change in marital status" must be given a "purposive interpretation". The bench comprising Justices DY Chandrachud, Surya Kant and AS Bopanna took into account the amendments made to the Medical Termination of Pregnancy Act in 2021 which substituted the word "husband" in Explanation 1 to Section 3(2) of the Act with the word "partner" and observed that excluding unmarried women and single women from the ambit of the statute goes against the purpose of the legislation. The order stated–

"There is no basis to deny unmarried women the right to medically terminate the pregnancy, when the same choice is available to other categories of women."

On the above premises, the Court had concluded that the petitioner's case prima facie falls within the ambit of the Act.

Also from the judgment : Rape Includes "Marital Rape" For The Purposes Of MTP Act, Wife Conceiving Out Of Forced Sex Can Seek Abortion : Supreme Court

Teenage Pregnancies -Doctor Need Not Disclose Identity Of Minor Girl Seeking Abortion In Information Given To Police : Supreme Court

Rape Includes "Marital Rape" For The Purposes Of MTP Act, Wife Conceiving Out Of Forced Sex Can Seek Abortion : Supreme Court

Consent Of Woman's Family Not Needed For Abortion, Doctors Cannot Impose Extra Legal Conditions : Supreme Court

(Case : X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, C.A 5802/2022).

Click here to read/download the judgment 

https://www.livelaw.in/top-stories/all-women-entitled-to-safe-legal-abortion-distinction-between-married-unmarried-women-unconstitutional-supreme-court-210548

A judge at the centre of political debate in Bengal

Over the past few months, politics in West Bengal has been rocked by a recruitment scam in which a high-profile politician and several officials have been arrested. However, it is a Calcutta High Court judge who has emerged at the centre of prevailing political storm. In the past one year, Justice Abhijit Gangopadhyay gave at least 10 orders directing the CBI to investigate irregularities in the recruitment carried out by the West Bengal School Service Commission.

The latest uproar has been around his interview on September 20 to a Bengali television news channel ABP Ananda. While the legal experts are divided as to whether a sitting High Court judge handling high-profile cases can give interviews to news channels, the judge’s statements created further buzz in political circles.

In the interview, he said that Trinamool Congress general secretary Abhishek Banerjee should be jailed for three months for alleging that a section of the judiciary was hand in glove with the BJP. “...whatever I am doing is as per the Bangalore Principles of Judicial Conduct, which states that judges have freedom of expression but whatever they say has to be under the purview of law,” Justice Gangopadhyay said.

Even if the Supreme Court criticises him and he is removed from judiciary, he will stand by what he has done because “corruption has destroyed India”, he said.

A petition was filed before the Division Bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bhardwaj to stop the telecast of the interview. The court refused, stating that “the petition is based upon mere apprehension”.

This is not the first time that Justice Gangopadhyay has been the centre of debate in political circles of the State. In August this year, there was a heated exchange between him and a section of lawyers of the Calcutta High Court during a hearing of the recruitment scam.

In March, when his order on CBI inquiry in the recruitment scam was stayed by a Division Bench, he wrote to the Chief Justice of the Calcutta High Court and the Chief Justice of the Supreme Court saying his hands were “being tied again and again”, and urged them to “look into the matter and probe the ongoing corruption”.

On several instances, Justice Gangopadhyay had directed the CBI to file FIRs by “the end of the day”, and asked senior officials, president of Boards and commissions and even a Minister to report to the agency for investigation within hours of the order.

While the Trinamool leadership has not reacted to the judge’s remarks, job seekers who are demanding jobs in State-run schools and holding regular protests since the recruitment scam came to light hailed him as a ‘hero’.

https://epaper.thehindu.com/Home/MShareArticle?OrgId=G07AANMM0.1&imageview=0