LAW SCHOOL INTRA MOOT COURT COMPETETION, 2017

TABLE OF CONTENTS

Page No.

TABLE OF CONTENTS………………………………………………………………1

LIST OF ABBREVIATIONS………………………………………………………….2

INDEX OF AUTHORITIES…………………………………………………………...3

STATEMENT OF JURISDICTIONS………………………………………………….4

STATEMENT OF FACTS…………………………………………………………….5

STATEMENT OF ISSUES…………………………………………………………….7

SUMMARY OF ARGUMENTS………………………………………………………8

ARGUMENTS ADVANCED…………………………………………………………10

PRAYER……………………………………………………………………………….17

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LIST OF ABBREVIATIONS

ABBREVIATION DEFINITION

AIR All India Reporter

Art. Article

M&A Mathur and Associates

H&A Heeramall and Associates

BCI Bar Council Of India

PIL Public Interest Litigation

CLF Consortium of Law Firms

Hon’ble Honorable

i.e. That is

Wb. Website

SBC State Bar Council

Pg. Page

PIL Public Interest Litigation

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

u/a Under Article

vs. Versus

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INDEX OF AUTHORITIES

Statutes:

I. Constitution of India
II. Competition Act, 2002
III. Consumer Protection Act, 1986
IV. Advocate Act, 1961

Cases referred:

I. Mumbai Kamgar Sabha, Bombay vs. M/S Abdulbhai Faizullbhai & Others AIR 1455,
1976 SCR (3) 591
II. Hamdard Dawakhana (Wakf) Lal…. Vs. Union of India AIR 554, 1960 SCR (2)
III. Srinath vs. Union of India AIR 1996 Mad 427
IV. Banglore water supply vs. Rajappa & others AIR 548, 1978 SCR (3) 207
V. Bates vs. State of Arizona 433 U.S. 350 (1997)

Books Referred:

I. Khan, A.R., The Constitution of India, 2nd edition, Access Publishing

Websites Referred:

I. www.judis.nic.in
II. www.supremecourtofindia.nic.in
III. www.barcouncilofindia.org
IV. www.manupatra.com

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the jurisdiction in this matter under Article 32 of the
Constitution of India which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part -

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.”

The Hon’ble Supreme Court of India also has jurisdiction in this matter under Point 38 of
Chapter V, Conduct of Advocates of the Advocates Act, 1961 which reads as follows:

“38. Appeal to the Supreme Court-

Any person aggrieved by an order made by the disciplinary committee of the Bar Council
of India under sec 36 or sec 37[or the Attorney-General of India or the Advocate-General of the
State concerned, as the case may be,] may within sixty days of the date on which the order is
communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass
such order [(including an order varying the punishment awarded by the disciplinary committee
of the Bar Council of India)] thereon as it deems fit:

[Provided that no order of the disciplinary committee of the Bar Council of India shall be varied
by the Supreme Court so as to prejudicially affect the person aggrieved without giving him a
reasonable opportunity of being heard.]

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STATEMENT OF FACTS

1. Heeramal and Associates is a well known leading law firm with the primary objective of free
legal advice. They opened a wb. to fulfill this objective. This wb. containes statement of the
areas where the law firm specializes in along with the branch offices and contact details of
these branches. The wb. also highlighted various cases, particularly the PILs that the firm has
conducted successfully. The wb. also cited the name of the opponents of the law firm.

2. M&A who was the opponent of H&A writes to the SBC objecting the use of their name in
H&R website. They complain that that the wb. is defaming them and the use of the wb. is
unethical. The SBC, issued a notice to Mr. Heeramall asking him to withdraw the his firm’s
wb. failing which disciplinary action would be taken against him.

3. Right to advertise as being a debatable topic, gradually the matter acquired media importance
and became a national issue. Looking at the importance of the matter the BCI took the charge.
Having considered the complaint the BCI issued a notice to Mr. Heeramall to present his stand
to full satisfaction, failing which his enrollment would be cancelled.

4. Mr. Heeramall filed a reply wherein he contended that maintaining a wb. does not amount to
advertisement and the mention of M&A does not amount to defamation since it is merely a
statement of fact. The BCI finds his reply unsatisfactory and suspend his enrollment. The BCI
also issued a general notice cautioning the lawyers against maintaining wb. and publishing
broachers.

5. Mr. Heeramall filed an appeal in the SC of India against BCI order. He contends that this
decision besides being arbitrary, is also violative of his right under Art. 19(1)(a) and (g) of the
constitution of India.

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6. A PIL is filed by a CLF, named Advocate of India, in the SC of India challenging the
restrictions imposed by the BCI on prohibiting maintenance of wb. on following grounds:
 The restriction being unreasonable and arbitrary.
 Restrictions violate right to equality.
 Violation of Art. 19(1)(a) and 19(1)(g).
 Violation of right to liberty.

7. The CLF clarified that they are challenging the Rule 36 of BCI on standard of Professional
Conduct and Etiquette with respect to restrictions on advertising and claimed that law firms
should be allowed to use wb. in passive form.

8. The BCI opposed the writ petition on the ground that the legal prof. is a noble prof. and
different from other commercial prof. It also opposed on the ground that the wb. will amount
to discrimination against lawyers having independent practice. It challenged the Locus Standi
of the CLF on the ground that it was not a registered org. They also stated that there is no actual
breach but just an alleged potential breach.

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STATEMENT OF ISSUES

The parties have respectfully placed before this Hon’ble Court the following Questions for
its consideration:

I. Whether the PIL filed by the Consortium of Law Firms in the Hon’ble Court is
maintainable against the BCI.

II. Whether the restrictions and general notice to the lawyers against maintaining website is
unreasonable and arbitrary.

III. Whether the ban on Lawyers and Law Firms from advertising their service by BCI is
violation of Fundamental Rights.

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SUMMARY OF ARGUMENTS

1. PIL FILED BY THE CONSORTIUM OF LAW FIRMS IS MAINTAINABLE IN

THE HON’BLE COURT AGAINST THE BCI.

It is humbly submitted before the Hon’ble Court that the PIL against the BCI is
maintainable since it is a Statutory Body and so acts as a State as defined by Article 12 of
the Constitution of India.

The PIL filed by the Consortium of Law Firms known as Advocates of India is also
maintainable on the ground on which the Bar Council of India Challenged the Locus
Standi of The consortium at the hearing stage. As the restrictions imposed by the BCI
leads to the violations of fundamental rights of all the Law Firms, so all of them have
same interest in filing the writ. So the question that the consortium is not a registered
organization does not seem to have any base.

2. THE RESTRICTIONS IMPOSED BY THE BAR COUNCIL OF INDIA IS

UNREASONABLE AND ARBITRARY.

The restrictions imposed by BCI is contrary to its earlier amendment made in Rule 36
regarding advertisement by Advocates, by passing resolution on 30th April, 2008. By
amending the Rule 36, the BCI allowed lawyers to advertise their service on the internet
within some defined parameters. So, suspending the enrollment of Heeramall and issuing
general notice cautioning the lawyers against maintaining websites is unreasonable and
arbitrary.

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3. THE BAN IMPOSED BY THE BCI ON LAWYERS AND LAW FIRMS ON

ADVERTISEMENT IS VIOLATION OF FUNDAMENTAL RIGHTS.

The restrictions imposed on advertisement of legal profession strictly violates

Fundamental Rights guaranteed by the Constitution of India.

The restrictions are violation of Rights under Article 19(1)(a) and Article 19(1)(g) and
they not in accordance or can be justified by Article 19(2) and Article 19(6). Article
19(1)(a) deals with advertisement in the form of speech while Article 19(1)(g) gives right
to practice any profession and trade but all these should be in accordance to laws
established by the State. And Heeramall and the Law Firms are doing nothing which
provoke Article 19(2) and Article 19(6).

The restrictions also violate Right to Equality. Since in the current era of globalization
where competition for providing services is at its peak, Legal Profession is still said to be
Nobel Profession and hence cannot form a part of trade or business. This is against the
Right granted under Article 14, Equality before law.

The ban also violates Article 21 in accordance to Protection of Personal Liberty by

restricting people of Legal Profession to advertise their services through internet or any
form.

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ARGUMENTS ADVANCED

1. PIL FILED BY THE CONSORTIUM OF LAW FIRMS IS MAINTAINABLE IN

THE HON’BLE COURT AGAINST THE BCI.

It is humbly submitted before the Hon’ble Court that the restrictions imposed by BCI has
affected people at large of Legal Profession. So, it is the matter of Public Interest and hence basic
rule of PIL stands firm at this point. Now the other instances in which Locus Standi of the PIL
might be questioned is also very crystal clear.

A. BCI is a State

PIL is filed against the State only, not any other authority other than it. In the Part III of
the Constitution of India which deals with Fundamental Rights, Article 12 defines “the State” as:

“In this part, unless the context otherwise requires, “the State” includes the
Government and the Parliament of India and the Government and the Legislature of each
of the States and all local or other authorities within the territory of India or under the
control of the Government of India.”

The last two lines of the above law is about all those authorities which are under the
control of Government of India can be given the status of “the State”. BCI is one of the authority
which is under the control of the Government as it is a Statutory Body. The Bar Council of India
is a Statutory Body established under the Sec. 4 of The Advocates Act, 1961 that regulates legal
practice and legal profession in India.

Since BCI, from the above reference is said to be “the State” and hence PIL is
maintainable.

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B. PIL is maintainable although the Consortium of Law Firms, Advocates of India is

not a registered organization

The suspension of the enrollment of Mr. Heeramall and issuing of general notice
cautioning lawyers against maintaining websites has affected the people of Legal Profession at
large. If all the Law Firms have individually filed the PIL for same issue then there will be only
one possibility that Hon’ble Court under Article 139 A have clubbed all the petitions. The
Hon’ble Court here also did the same thing by clubbing the appeal of Mr. Heeramall pending
before the court to the PIL filed by Advocates of India.

So here the Respondent seems to ignore the fact of clubbing the two writs as done by
Hon’ble Court.

PIL is not defined in any statute or any act. It has been interpreted by Hon’ble Judges
previously to consider the intent of public at large. And so there is no law stating that only
registered organization should file a writ or a PIL. There have been some cases recently which
clearly highlights this scenario.

In Mumbai Kamgar Sabha, Bombay vs. M/S Abdulbhai Faizullabhai & ors.1, the case in
which the seed of PIL was sowed, Hon’ble Justice Krishna Iyer allowed a group of people to file
a petition on behalf of others. So, here the question that the group of people are from registered
organisation or not does not has any validity.

1
Mumbai Kamgar Sabha, Bombay vs. M/S Abdulbhai Faizullbhai & Others AIR 1455, 1976 SCR (3) 591

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2. THE RESTRICTIONS IMPOSED BY THE BAR COUNCIL OF INDIA IS

UNREASONABLE AND ARBITRARY

It is humbly submitted before the Hon’ble court that the general notice issued to lawyers
by the BCI against maintaining websites is contrary to the amendment made by the authority in
Rule 36 of BCI by passing the resolution2 on 30th April,2008 which was approved by the
Hon’ble Chief Justice of India as provided for under proviso to Section 49 (1)(j) of the
Advocates Act, 1961. Under this amendment, the Bar Council of India has permitted the lawyers
to advertise on internet but restricting it to five grounds only. Legal Professional now after this
amendment can advertise on five grounds, that is, they can put the following details on their
website:

i. Name
ii. Address, Telephone Numbers, E-mail id
iii. Enrollment Number, Date of Enrollment, Name of State Bar Council originally enrolled,
Name of State Bar Council on whose roll name stands currently, Name of the Bar
Association of which the Advocate is Member
iv. Professional and Academic Qualification
v. Areas of Practice (Eg. Civil, Criminal, Taxation, Labour, etc.)

So imposing complete restriction on internet advertisement is not reasonable and is

contrary to its above amendment also and henceforth, suspension of the enrollment of Mr.
Heeramall was not a lawful act at this point

2
Resolution No. 50/2008 Bar Council of India

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3. THE BAN IMPOSED BY THE BCI ON LAWYERS AND LAW FIRMS ON

ADVERTISEMENT IS VIOLATION OF FUNDAMENTAL RIGHTS

It is humbly submitted before the Hon’ble Court that restrictions imposed on Legal
Professionals to advertise their service is violation of Article 19(1)(a), Article 19(1)(g), Article
14 and Article 21 of the Constitution of India.

A. Violation of Article 19(1)(a)

Article 19(1)(a) under Right to Freedom is defined as: “All citizens shall have right to
freedom of speech and expression.”

Right to Advertisement is covered under this Article as pointed in Hamdard Dwakhana vs.
Union of India3 that:

“An advertisement is no doubt a form of speech but its true character is reflected by
the object for the promotion of which it is employed…when it takes the form of a commercial
advertisement which has an element of trade or commerce it no longer falls within the concept of
freedom of speech…….” (Paragraph 17)

So here Heeramall’s advertisement shall not be measured on the scale of commercial

advertisement. Commercial advertisement is purely economic whereas Heeramall’s primary
objective was to provide free legal service to the needy and deprived people. And as the
protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech,
it is to be noticed that by imposing rectriction on Heeramall’s website is violation of his right as
well as of all those who might be its recipient.

B. Violation of Article 19(1)(g)

Article 19(1)(g) under Right to Freedom of the Constitution of India is defined as:
“All citizens shall have the right to practice any profession, or to carry on any
occupation, trade or business.”

3
Hamdard Dawakhana (Wakf) Lal… vs. Union of India AIR 554, 1960 SCR (2) 671

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Going to the traditional norms, legal service was considered as noble profession and so
it cannot form a part of trade or business but the recent trend of judgements when going through
the phase of globalization, Hon’ble Courts have justified this profession as a trade. Over the
years, the Courts have recognized ‘Legal Service’ as a ‘Service’ rendered to the consumers and
have held the lawyers are accountable to the clients in the case of deficiency of services.

In the case of Srinath vs. union of India4, Madras Hight Court held that “in the view
of Sec. 3 of Consumer Protection Act, 1986. Consumer redressel forums have jurisdiction to deal
with claims against advocates.” Sec. 2(U) of Competition Act, 2002 defines the term ‘Service’
along the number of lines of Consumer Protection Act, 1986. From all these, it ca be henceforth
derived that legal services are becoming subject of trade related laws where consumerism and
market force should be given adequate space.

In Bangalore Water Supply and Sewage Board vs. Rajappa5, it was held that legal
profession is covered under the definition of the term ‘industry’ under the Industrial Disputes
Act, 1947 which implies legal profession to be one of a industry and hence giving it a meaning
of trade.

There was same position in USA before 1977. But in one of the case named Bates vs.
State of Arizona6 , it was declared that truthful legal advertising should not be prohibited as there
is nothing wrong in it. It was held that allowing attorneys to advertise would not harm legal
profession and in fact, would supply consumers with the availability & cost of legal services but
the states are allowed to monitor the advertisement by the advocates.

So therefore the petitioner brings into the notice of Hon’ble Court that the Right of the
Article 19(1)(g) shall be given to the legal professionals to promote their services and their right
can be only taken away by imposing reasonable restrictions under Article 19(6) of the
Constitution of India.

4
Srinath vs. Union of India AIR 1996 Mad 427
5
Bangalore Water Supply &… vs. Rajappa & others AIR 548, 1978 SCR (3) 207
6
Bates vs. State of Arizona 433 U.S. 350 (1977)

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Regulations imposed on the Legal Services sector are anti-competitive and contrary to
the goals & purposes f competition policy and Competetion Act, 2002.

India is a part of WTO & is subjected to WTO laws and in which legal services are listed
as a subsection of Bussiness Services in WTO Services Sectoral Classification List. Therefore, it
is presented before the Hon’ble Court that Legal Services are becoming subject of trade related
laws in India where consumerism & market forces should be given adequate space.

Answering the need of globalization, Government of India is also going smoothly by

liberalizing legal markets. Ministry of Commerce and Industry along with Law Ministry on 3rd
January 2017, amended Special Economic Rules, 2006, in Rule 76. The Government has
revoked a ban on the practice of law from Special Economic Zones (SEZs), by issuing a
notification7 in the Gazette of India amending the Special Economic Rules governing Special
Economic Zones. It is baby step towards opening India’s legal and accounting sector to foreign
players. It is mentioned in notification that:

“In the Special Economic Zones Rules, 2006, in Rule 76, for the words “professional
services (excluding legal services and accounting) rental/leasing services without operators”,
the words “professional services, rental/leasing services without operators” shall be
substituted.”

And henceforth in the time in which Legal Services are moving from the traditional tag
of Nobel Service to Commercialization the ban on advertisement by BCI seems to be unfit and
henceforth violates above mentioned Articles.

7
Ministry of Commerce And Industry (Department of Commerce) Notification Published by Authority in New Delhi,
Friday, January 6, 2017.

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C. Violation of Article 14 and Article 21

There is also complete violation of Article 14 which deals with Equality Before Law.
By imposing restrictions on advertisement there arises a disparity between legal services and
other services in which advertisement is permissible. As submitted in previous Article before the
Hon’ble court that legal service is termed as trade and hence this restriction violates this Article.
Peoples belonging to legal professional have not full liberty as guaranteed by Article 21. Their
liberty is hampered.

The argument placed by BCI that if allowed to advertise then it will be discrimination
against lawyer having independent practice is void. The petitioner has humbly submitted before
the court that we don’t want complete active advertisement but its passive form must be allowed.
Lawyers with independent practice are also suffering since they are unable to advertise their
service in any form to their clients as mentioned by the BCI guidelines, restricting making
websites and publishing broachers.

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PRAYER

WHEREFORE, IN THE LIGHT OF FACTS STATED, ISSUES PRESENTED ARGUMENTS

ADVANCED AND AUTHORITIES CITED, THE PETITIONER/S MOST RESPECTFULLY
REQUESTS THIS HON’BLE COURT TO ADJUDGE AND DECLARE THAT:

I. The restriction from advertisement imposed by Bar Council of India is unreasonable and
arbitrary as it is contrary to its own earlier amendment made in Rule 36 and therefore
suspension of Heeramall is to be revoked.

II. The Bar Council of India has violated fundamental Rights of the People of Legal
Profession.

III. Meeting the demand of globalization and not relying on traditional tag saying legal
service is nobel service, advertisement for Law Firms and Lawyers should be permitted
under proper check of authorities and will not create any discrimination against
independent lawyers.

AND/OR

TO PASS ANY OTHER ORDER, DISCREATION & JUDGEMENT AS THIS HON’BLE

COURT MAY DEEM FIT IN THE INTEREST OF JUSTICE, EQUITY & GOOD
CONSCIENCE.

For Act of Kindness, the appellants shall be Duty Bound Forever

All of which is most humbly submitted

Counsels for the Appellants

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