Right to Advertisement of legal professional in India
Introduction
Access to Advertisement is one of the inherent characteristics of performing every company, occupation, or other institution in the world today. It offers a forum for the individual to communicate to the public at large some sort of knowledge, provided that such advertising formulates on the rules and regulations laid down in that term. Communication may be through newspapers, journals, texts, notes, activities, and so on.
According to Article 19(1)(a ) of the Constitution of India, advertising or commercial speeches is added. This was acknowledged as part of Freedom of Speech and Expression, in the case of Tata Press[1] the Supreme Court found that the general public had the right to access commercial knowledge and that such security under Article 19(1)(a ) of the Constitution of India as applicable to both speakers and speakers. The economic existence of these terms was considered immaterial thus granting protection under the foregoing Constitutional provision.
Nor is freedom of speech and opinion an inherent privilege as every other human right. Under Article 19(2) of the Constitution of India, the State can, on the following basis, place “fair restrictions” on the exercise of such a right in the public interest:
- Indian Supremacy and Dignity
- Public defence
- Friendly ties with other countries
- State order
- Decentness or Morality
- Court disdain
- Scandal Carry on. Incitement to commit an offence
Yet in the case of legal practitioners, this freedom to publicity has been eliminated. A law lawyer is forbidden from selling their professional services through the courts. This involves some form of advertising w.r.t. received by valid governments, through acting as legal counsel within the legislative system.
The origins of prohibition can be traced straight back to Bar Council of India Rule 36 as laid down in: An individual shall not seek research or promote, either overtly or implicitly, whether, by circulars, ads, all are, personal correspondence, interviews not required by personal connections, furnishing or encouraging newspaper articles or providing his photos to be released in conjunction with cases in which he has been interested or concerned. His name-plate or sign-board would be of a suitable scale.
The sign-board or name-plate or stationery does not imply that he is or has been president or director of a bar council or with some organisation, or that he has been affiliated with some individual or group, or some specific reason or issue, or that he is skilled in some particular category with the job, or that he has been a judge or a general advocate.
This law explicitly notes that, unlike those pursuing jobs in the legal profession, the legal profession is distinct from any other occupation and was prohibited by this regulation. The argument was that once the commercial is permitted in the legal industry, the legal profession as the noblest career would lose its sun. Justice Krishna Iyer, in Maharashtra v. M.V. Bar Council trial. Dhabolkar[2] put it this way:
“Law is not an auction, not a description, not a collection, so the market rivalry paradise should not vulgarize the valid call.” This is the belief that legal ads would transform this noble career into a pure profit-making enterprise that would change the emphasis from values such as equality and liberty to profit.
In the legal market, though, there is a celestial controversy and current condemnation of these outdated BCI laws that forbid certain advertisement categories and shapes. Pitting against the above-mentioned law the concepts of reasonability, constitutionality, openness, the free exchange of information, globalization and liberalization.
Law as a Nobel Profession
Law is a conventional career with the aims of public interest at the forefront of it. Since the outset of this career, he found himself an upholder and defender of justice. Under such a business, the operation was given with the primary aim of supporting society and then making a living.
In the case of the Indian Council of Legal Aid and Advice v. Bar Council of India[3], the Supreme Court claimed that ‘ the practice of law being a holy and noble occupation, the primary object of which is to benefit humanity by upholding the justice system, is the religious responsibility of the Bar Council to preserve its public reputation by restricting the infiltration of large numbers of retired people.
Comprehension that law as a practice is nothing without its values and principles is imperative. And hence an important topic is taught Ethical Ethics in any law school program to ensure that the young law brains fulfil the requirements of such a career by following the values and ethics.
As in the case of Maharashtra bar council v. M.V. Dhabolkar[4], Justice Krishna Iyer went on to say:
“The tradition of ethics and properties for the legal profession is entirely forbidden in soliciting, advertisement, scrambling and other gross activities, whether discreet or sloppy, to boost the legal sector.”
But the issue that remains unanswered is whether it would impact the primary actions of law practitioners to apply for the program, becoming incidental to the profession? Is it not feasible to create a path that all values go hand in hand, i.e. encouraging legitimate business advertisements without raising obstacles toward the honourable career.
Putting these stringent requirements and rules on the lawyers just goes contrary to the aristocracy principle of the practice. What a concept focused on the Victorian theory, but we held to the old and ancient idea that the British developed into a new understanding of the legal profession. In today’s environment, Word of Mouth is not enough to uphold the profession’s sanctity, the legal industry has to be open to improvements to survive.
Legal Profession a commercial activity.
Rule 36 of the BCI is therefore legally on a rather thin side because it is not adequately protected by any of the exceptions provided for in Section 19(2 ) of the Constitution of India. The same law has been checked in V.B. Joshi v. Union of India 2008, where the scope of internet ads has been granted some flexibility to enable lawyers to reveal such details, these amendments do not come into existence provided the Rule 36 operates completely beyond the boundaries of Article 19(2) of the Indian Constitution.
Strict measures may also be taken against lawyers or law companies who either advertise by circular letters or election manifestos, or arrange moot court events, or give qualification courses or published papers, or using visiting cards etc. This all adds to the weakness and flawed logic behind this statute. So, how does a law secure the profession ‘s dignity because it doesn’t even sound constitutional?
The modification in Rule 36 is a direct result of the system’s changing transition, as only the lawmakers embraced the adaptation by adding the exemption provision in the previous statute. The amendment to Rule 36, Section IV of the BCI rules enabled advocates to advertise online. This requires activists to post to the chosen page their names, addresses, telephone numbers, e-mail Identifiers, enrolment information, credentials and field of practice.[5]
Previously, the statute frowned upon all overt and indirect forms of advertising, many case laws existed to prohibit lawyers from participating in these practices. It was determined in the case of Government Pleader v. S.A pleader[6] that mailing a postcard containing an advocate’s correspondence, rank, and summary would equate to the advertising. In another situation, it was held that it is illegal for lawyers to distribute his name and advertise in the context of announcements and canvassing under the election manifestos[7].
The common definition of the legal profession and the rationale behind these precedents get forgotten day after day, the legal profession gets the same consideration as every other occupation or utility. Bangalore ‘s groundbreaking water shortage case v. A. Rajappa[8] which clarifies the word “industry” includes the legal profession. Furthermore, in the case of K Vishnu v. National Customer Dispute Redressal Commission[9], it was found that the advocate is deemed to be an officer of the court, but can not be stripped of its fundamental function as a provider to its clients and hence the legal authority might be liable to the Consumer Protection Act, 1986.
Even in the High-Level Competition Policy and Law Committee Paper, under the chairmanship of S.V.S. Raghavan, it stated:
‘Legislative and self-regulatory constraints have the cumulative impact of restricting incentives and development for qualified law firms, reducing their appetite and capacity to succeed internationally, preventing the nation from gaining the advantage of India ‘s considerable talent and preventing customers from selecting openly and informedly’[10].
Therefore, it may be assumed that law service is being subject to trade-related rules, so customers, manufacturers, production, and supply must be provided ample room to conduct business. It is also needless to apply such a derogatory picture to the world trade, trade is not just about income but also customer loyalty, educated decisions, free flow of knowledge, etc.
This is time to come to grips that the legal career is both respectable and lucrative, and ignoring the latter component of the former’s limelight is false and misguided. Both the courts and the Bar Council must understand that these limitations are primarily placed on small-time lawyers or law companies, making the lion’s in the legal industry, first of all, having so little advertisement and secondly, even though they are, by holding tournaments or conferences, by posting material on blogs, by utilizing international newspapers, etc.
Such resourceful companies have sought other means of selling themselves to draw potential customers and referring partners when other lawyers with a shortage of capital in the sense of the aristocracy of the legal profession bore the maximum brunt of these constraints.
Conclusion
Lawyers have two types of responsibilities, one specific to the judge, and the other related to the public; both roles often included certain privileges within the trial. So as long as those privileges do not conflict with any collection of responsibilities, the lawyers are entirely qualified to practice those privileges. A fair advertising spectrum can coexist and does not harm the Profession ‘s reputation.
In the situation discussed above, V.B. Joshi v. Union of India, some other significant concerns, such as publishing seminar brochures and incorporating dictionaries in online rule, were not addressed by the court, and the change was restricted to online ads. The amendment did not or chose to disregard India’s analphabetism issue, beautifully. Not everybody in India has access to the internet, or even though they do, they lack the expertise to use it at the standard needed.
Countries such as U.K. So the U.S. recently removed the restrictions put on proponents of legitimate ads by implementing rules that guarantee that the scale so the quality of the commercial is defined by a specific norm. However, it is a dangerous project where the negative effects can overpower the positive benefits of ads and also gives no assurance that it will be extremely popular in India only because it is popular in other countries. Especially after the govt. China has avoided implementing new regulations for more extreme consequences owing to reasons such as danger and the probability of failure.
[1] 1995 SCC (5) 139
[2] Bar Council of Maharashtra v/s. M.V Dhabolkar, (1976) AIR 242
[3] Indian Council of Legal Aid and Advice v. Bar Council of India [(1995) 1 SCC 732]
[4] Bar Council of Maharashtra v / s. MV Dhabolkar, (1976) AIR 242
[5] http://www.barcouncilofindia.org/wp-content/uploads/2010/05/BCIRulesPartVonwards.pdf
[6] AIR 1929 Bombay 335
[7] C.V. Sekkizhar v. Secretary, Bar Council, Madras, AIR 1967 Mad 35
[8] Bangalore Water-Supply & Sewerage Board, Etc. v/s. R. Rajappa& Others,(1978), SCR (3) 207
[9] (2000) ALD (5) 367
[10] 8.2.5, Chapter VII, Competition Policy and Professional Services, Report of High-Level Committee on Competition Policy and Law- S.V.S. Raghavan Committee, 2000
Author: Arvind Bhati,
Lloyd law college 3rd year student