Memo Cover

33rd ALL-INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2017
TEAM CODE-BIM/149
IN THE HONBLE SUPREME COURT OF INDIA AT DELHI
THE ADVOCATE APPLICANT
v.
1)-THE STATE OF PASHIM PRADSH RESPONDANTS

2)-THE BAR COUNCIL OF INDIA
Most respectfully submitted before the honourable chief justice and other judges of Supreme
Court of India.
[1]
Memorial filed and appearing on behalf of the Applicant
TABLE OF CONTENTS
LIST OF ABBREVIATIONS..3
INDEX OF AUTHORITIES.4,5
A)-Table of Cases
B)-Statutes referred
C)-Books and Journals
D)-Websites
STATEMENT OF JURISDICTION.6
STATEMENT OF FACTS 7,8
ISSUES RAISED ..
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED....
I)-THE RULE AND PROCEDURE FOLLOWED BY THE BCI UNDER THE AMENDED
RULES FOR THE SUSPENSION OF 50 ADVOCATES OF PASHIM PRADESH BAR
ASSOCIATION FOR PROFESSIONAL MISCONDUCT IS ARBITRARY AND
AGAINST THE PRINCIPLES OF NATURAL JUSTICE.
II)-THERE IS NO BREACH OF CONTRACT BETWEEN THE PETITIONER AND HIS

CLIENT.
III)-TO STRIKE IS A FUNDAMENTAL RIGHT OF ADVOCATES, IN EXTENSION TO

THE RIGHT OF FREEDOM OF SPEECH AND EXPRESSION.
[2]
IV)-RIGHT TO FREEDOM OF PROFESSION INCLUDES THE RIGHT TO

DISCONTINUANCE OF PROFESSION.
PRAYER
[3]
LIST OF ABBREVIATIONS
& And
AIR All India Reporter
SCC Supreme Court Cases
SC Supreme Court
BCI Bar Council of India
v. Versus
Art. Article
[4]
INDEX OF AUTHORITIES
A)-TABLE OF CASES:
[5]
Statutes referred:
1. The Constitution of India,1950

2. Advocates Act, 1961
3. Bar Council India Rules, 2009
Books and journals:
1. Raju Ramcharan, Professional Ethics for Lawyers, 61 (2nd ed., 2014)

2. C.L. Anand, General Principles of Legal Ethics
3.Dr.Narender Kumar,Constitutional Law of India
4. Dr. S.P. Gupta, Professional Ethics, Accountancy of lawyers and Bench- Bar Relations,
168(5thed., 2013)
5.Dr.RK Bangia,Contract-I(Sixth ed.,2009)
6.Dr.Kailash Rai,Legal Ethics(11th ed.,2013)
7.P.Ramnath Aiyer,Legal Professional Ethics(Third ed.,2003)
Websites:
1. www.manupatra.com (last seen on 5.3.2017)

2. www.indiankanoon.com (last seen on 5.3.2017)
[6]
STATEMENT OF JURISDICTION
The Honble Supreme Court of India exercises jurisdiction to hear and adjudicate over the
matter under Art.32(1)1 and Art.32(2)2 of the Constitution of India,1950.The petitioner
humbly submits this writ petition before the honourable court since the ex-parte order of
the High Court violates the fundamental rights mentioned in Part III of the Constitution.
1
Art.32(1),the Constitution of India
2
Art.32(2),the Constitution of India.
[7]
STATEMENT OF FACTS
For the sake of brevity and convenience of this Honble Court the facts of the present case are
summerised as follows
1) THE EXISTING STATUS OF BAR-BENCH RELATIONS IN THE COUNTRY

Bar and bench forming a noble and dynamic partnership, have a complementary role
to play in the administration of justice and mutual respect is necessary for
maintaining cordial relations between the two. Their responsibilities put upon them a
great duty towards the society.
The lawyers, being the leading members of the intelligentsia, must remember that
what they do affect not an individual but the administration of justice. The lawyers
have a multi- fold duty, namely to the client, the opponent, the Court, the society and
also to himself. His lack of performance of duty might be detrimental to the entire
institution of justice.
Legal professionals generally have a code of conduct largely regulated by statutory
law. The statute regulating the same in India is Advocates Act, 1961, that regulates
legal practise and education in India. The statute also provides for the establishment
of the Bar Council of India and the State Bar Councils with various Disciplinary
Committees. The Act also deals with the conduct of the advocates, punishment for
professional and other misconduct.
The Advocates Act,1961 also provides extensive powers to the Bar Council of India
including disciplinary powers.
2) THE AMENDMENT:
Exercising its power under the Advocates Act, 1961 the Bar Council of India
amended the Bar Council of India Rules, 2009 and added that:
An Advocate who browbeats and or abuses a Judge or Judicial officer or uses

unbecoming language in the Court or refuses to attend the Court as a tool of
protest shall, on preliminary enquiry be suspended from practise for an indefinite
period and the decision of the Disciplinary Committee shall be final
[8]
3) THE CONSEQUENCES:
The entire lawyer community raised a voice of protest against the amended rule as
being arbitrary, demeaning to the profession of advocates and against the
independence and integrity of the Bar. A more intensified and heated reaction
resulted from the Paschim Pradesh Bar Association. A huge protest demanding the
withdrawal of the amended rules was observed which included demonstrations, TV
interviews, dharnas, boycott of Courts and chakkajam of public roads,preventing
judges from entering the court premises. The Association called for a state-wide
strike of advocates and abstinence from all courts and tribunals indefinitely.
This action seriously paralyzed the working of the High Court of Pashchim Pradesh
and the subordinate courts.
The BCI in exercise of its powers under the Advocates Act, 1961 and the Rules
thereunder suspended 50 advocates involved in the strike on the grounds of
professional misconduct.
Meanwhile in a civil case, the High Court of the state gave an ex- parte order against
the petitioner, imposing a fine of 75,000 INR. The Court made his counsel liable for
paying half the amount. In addition to this, the Court also ordered contempt
proceedings against the Counsel.
4) JUDICIAL SCRUTINY
The aggrieved party in the above case filed a writ petition in the Supreme Court of
India for quashing the order of the HC. The same petitioner also challenged the
suspension of 50 advocates for professional misconduct under the amended rules,
and stated the rule and the procedure as arbitrary and against the principles of natural
justice.
The matter is now before the honourable Supreme Court to scrutinize
[9]
ISSUES RAISED
I)-WHETHER THE RULE AND PROCEDURE FOLLOWED BY THE BCI UNDER

THE AMENDED RULES FOR THE SUSPENSION OF 50 ADVOCATES OF PASHIM
PRADESH BAR ASSOCIATION FOR PROFESSIONAL MISCONDUCT IS
ARBITRARY AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE?
2)-WHETHER THERE IS BREACH OF CONTRACT OR BREACH OF TRUST

BETWEEN THE PETITIONER AND HIS CLIENT?
3)-WHETHER THE RIGHT TO STRIKE IS A CONSTITUTIONAL RIGHT AND IN

CONSONANCE WITH THE FUNDAMENTAL FREEDOM OF SPEECH AND
EXPRESSION?
4)-WHETHER THE RIGHT TO FREEDOM OF PROFESSION AND OCCUPATION

INCLUDES DISCONTINUING THE PROFESSION OR OCCUPATION?
[10]
SUMMARY OF ARGUMENTS
1)-The rule and procedure followed by the BCI under the amended rules for the suspension
of 50 advocates of Pashchim Pradesh Bar Association for professional misconduct is
arbitrary and against the principles of natural justice.
BCI is a statutory body established under Section 4 of the Advocates Act 1961.The parliament
has delegated the authority to BCI and the Act serves as a guideline to exercise the powers
conferred under the Act .When the subordinate delegated legislation exercises its power in
excess or unreasonably, it violates the provision of Art.13(2) and Art.13(3)3 of the Constitution.
The amendment itself is arbitrary in nature violative of right to equality and principles of natural
justice.
2)-Whether there is breach of contract or breach of trust between the advocate and his
client.
It is humbly submitted that the petitioner has not breached the contract or the trust of his client.
Though there exists a contract between them through the power of attorney(vakalat).The
contract has been frustrated by the event of state-wide strike. The occurrence of strike cannot be
prevented ,so the contract between the petitioner and his client stands void and not enforceable
by law.
3)-To strike is a constitutional right and in consonance with the fundamental right to
freedom of speech and expression.
Freedom of speech and expression has been held to be basic and indivisible for a democratic
polity4,it is the most cherished and privileged right and is said to be a cornerstone of functioning
of the democracy5.
Lawyers are considered as harbingers and guards against an autocratic society, yet they are not
allowed to gather and voice their opinion
3
Art.13(3) ,Constitution of India
4
Govt. of AP v. PL Devi,AIR 2008,SC 1640
5
Unioin of India v. Naveen Jindal,AIR 2004 SC 1559(National)
[11]
[12]
Arguments Advanced
1)-The rule and procedure followed by the BCI under the amended rules for the suspension
of 50 advocates of Pashchim Pradesh Bar Association for professional misconduct is
arbitrary and against the principles of natural justice.
i)-Arbitrariness:
Article 14 enacts primarily a guarantee against arbitrariness and inhibits state action, whether
legislature or executive, which suffers from the vice of arbitrariness. Every state action must be
non-arbitrary and reasonable. Otherwise, the court would strike it down as invalid. It is primarily
a guarantee against arbitrariness in state action and the doctrine of classification has been
evolved only as a subsidiary rule for testing whether a particular state action is arbitrary or not. It
has been held that any penalty disproportionate to the gravity of the misconduct would be
violative of Art.146
The use of phrase-indefinite period^ reveals the arbitrary nature of the rule. It is humbly stated
that the suspension of the advocates by the State Bar Council is upon their discretion for such
period as it may deem fit.^ Not every case of professional or other misconduct will be of the
same intensity and to suspend every advocate for unspecified period is surely not reasonable. It
degrades the glory of the profession and also affects the independence and integrity of the bar of
the State Bar Councils. Power has been granted to punish any advocate on its roll for
professional or other misconduct.7 When the BCI takes direct action for any such misconduct, it
abridges the integrity of the State Bar Councils.
The parliament through the Advocates Act has delegated the authority to BCI and the Act serves
as a guideline to exercise the powers conferred it. The SC has observed that the government
exercising its delegated legislative power should make a real and earnest attempt to apply the
6
Bhagat Ram v. State of Himachal Pradesh,AIR 1983 SC 454,460
7
S.35,Advocates Act,1961.
[13]
criteria laid down by itself that policy formulation should be broadly and substantially without
violating any provision of the constitution8. The amendment is thus inconsistent with the
fundamental rights. 9
ii)-Violation of principles of Natural Justice:
The concept of audi alterem partem signifies the fact that no man should be condemned
unheard10.The Supreme Court has held that this rule is one of the basic principles of natural
justice.11. It is specifically mentioned that during the the advocate should be given an
opportunity of being heard,12 this seems to be absent in the amended rule and there is no clear
indication as to whether the advocate will be given an opportunity of being heard.
2)-There is no breach of contract between the advocate and his client.
The performance of the contract may be possible when the contract is entered into but because of
some event, the performance may subsequently become impossible or unlawful. Following
provision is made regarding the validity of such contracts:13
A contract to do an act which after the contract is made, becomes impossible or, by reason of
some event which the promisor could not prevent, unlawful, becomes void when the act becomes
impossible or unlawful. 14
It means that every contract is based on the assumption that the parties to the contract will be
able to perform the same when the due date of the performance arrives. If because of some event,
the performance has either become impossible or unlawful, the contract becomes void. In a
decision of SC, it was pointed out that it was incorrect to say that the Section covers those cases
8
Secretary,Miinistry of Chemical and Fertilisers,Govt.of India v. M/s Cipla Ltd. and others, AIR 2003 sc 3078
9
Art.13(2),the Constitution of India.
10
Indian Pan Works,Delhi v. Chief Commissioner Delhi,AIR 1969 Del.1.
11
AIR 1983 SC 75
12
S.35(3),Advocates Act,1961
13
Dr.R.K. Bangia, Law of Contract-I(Sixth edition,2009)
14
S.56,Indian Contracts Act,1872
[14]
also where the performance becomes impracticable or useless having regard to the object and
purpose of the contract.15
It is humbly submitted that the petitioner hasnt breached the contract .The call for the state-wide
strike seriously paralyzed the working of the High Court16.It is to be noted that it was nearly
impossible for the petitioner to attend the court proceeding due to the various means of protests
including chakkajams of public roads and preventing the judges from entering the court.17This
states that the performance of the duty to attend the court had become impossible, not because of
petitioners own intention but because of the situations which were of such a nature that they
were beyond control.
Also, there is no breach of trust between the petitioner and his client. Though the advocate is
duty bound to perform his duty, it is the duty of the client to be well aware about the dates of the
hearing. He should have availed the services of another advocate, if he had reason to believe that
the advocate will not be able to appear on the hearing.
3)-To strike is a constitutional right and in consonance with the fundamental right to
freedom of speech and expression.
The freedom of speech and expression guaranteed under Art.19(1)(a),means the right to speak and to
express ones opinion by words of mouth, writing ,printing pictures or in any other manner.18
Lawyers are considered as harbingers and guards against an autocratic society.
15
Sushila Devi v. Hari Singh, AIR 1971 SC 1756
16
8, Moot Problem
17
Supra
18
Dr. Narender Kumar, Constitutional Law of India(9th edition)
[15]
[16]
[17]
Prayer
Wherefore in the light of issues raised, arguments advanced and authorities cited, the
counsels on behalf of the respondent pray before this Honble Court that it may be pleased
to adjudge and declare that:
The ex-parte order of the High Court is quashed and the amendment done to the Bar Council of
India Rules,2009 is revoked.
Or pass any other order that may deem fit in the vision of this Honble Court in
furtherance of equity, justice and good conscience.
And for this act of Kindness the counsels and the respondent shall duty bound ever pray.
[18]
[19]
[20]
[21]
[22]
[23]

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33rd ALL-INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2017

IN THE HONBLE SUPREME COURT OF INDIA AT DELHI

THE ADVOCATE APPLICANT

1)-THE STATE OF PASHIM PRADSH RESPONDANTS

STATEMENT OF FACTS 7,8

II)-THERE IS NO BREACH OF CONTRACT BETWEEN THE PETITIONER AND HIS

III)-TO STRIKE IS A FUNDAMENTAL RIGHT OF ADVOCATES, IN EXTENSION TO

IV)-RIGHT TO FREEDOM OF PROFESSION INCLUDES THE RIGHT TO

1. The Constitution of India,1950

Books and journals:

1. Raju Ramcharan, Professional Ethics for Lawyers, 61 (2nd ed., 2014)

1. www.manupatra.com (last seen on 5.3.2017)

1) THE EXISTING STATUS OF BAR-BENCH RELATIONS IN THE COUNTRY

An Advocate who browbeats and or abuses a Judge or Judicial officer or uses

The matter is now before the honourable Supreme Court to scrutinize

I)-WHETHER THE RULE AND PROCEDURE FOLLOWED BY THE BCI UNDER

2)-WHETHER THERE IS BREACH OF CONTRACT OR BREACH OF TRUST

3)-WHETHER THE RIGHT TO STRIKE IS A CONSTITUTIONAL RIGHT AND IN

4)-WHETHER THE RIGHT TO FREEDOM OF PROFESSION AND OCCUPATION

ii)-Violation of principles of Natural Justice:

2)-There is no breach of contract between the advocate and his client.

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