Bar Associations Not “State” Under Article 12 As They Do Not Discharge Public Functions: Delhi High Court
Safiya Malik
The High Court of Delhi Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia has dismissed an advocate’s appeal and affirmed the rejection of her writ petition seeking directions to a local Bar Association and the Bar Council to act against advocates accused of unlawfully entering her court chamber, placing a lock, and dispossessing her of files and belongings. The Bench found that Bar Associations, as societies formed to protect members’ interests, do not discharge public functions and are neither the State nor an instrumentality under Article 12, making them not amenable to a writ of mandamus. The Court also declined to issue a writ to compel disciplinary or criminal action, leaving the lawyer to pursue appropriate civil or criminal remedies and approach the competent authority.
An advocate stated that in 2013 an allottee of a chamber at Patiala House Court Campus asked her to use it on rent, and she began working there on a monthly rent basis. She alleged that on returning to the chamber on a later date, the allottee and others were inside after breaking open the lock, and that she was threatened and pressured to remove her belongings and vacate.
She further stated that office bearers of the concerned Bar Association asked her to vacate on 04.02.2023 and that a lock of the Bar Association was placed on the chamber, making her belongings and case files inaccessible. She claimed the police did not act and advised her to approach the Bar Association’s chairperson. She also stated she made representations and reminders to the Bar Association and to the Principal District and Sessions Judge, and that on 06.03.2023 she was informed her files and documents had been thrown out and were lying outside.
In the writ petition, she sought directions for removal of the lock and restoration of access, and for action by the Bar Association and/or the Bar Council of Delhi against advocates alleged to have trespassed. During proceedings, the District Judge In-charge reported that her belongings had been removed, and the keys were directed to be handed over to the allottee, who gave an undertaking regarding personal use and non-subletting.
The Court recorded that, "a preliminary objection was raised on behalf of respondent no.5 in the writ petition regarding its maintainability on the ground that the Bar Association is neither ‘State’ nor its instrumentality within the meaning of Article 12 of the Constitution of India; neither does it perform any public functions, as such, and the writ petition was not maintainable."
On the appellant’s claimed entitlement in the chamber, the Court noted the Single Judge’s view that, "the appellant is not an allottee of the Chamber in question, rather she was put in permissive possession in the Chamber by its allottee and, therefore, she cannot claim any right over the Chamber and accordingly, held that in absence of any right, the writ petition filed by the appellant was not maintainable."
Addressing the prayer seeking action against advocates through the Bar Association, the Court stated, "the petition was not maintainable for the reason that by the said prayer a direction was sought to the Bar Association, which is an Association of Lawyers registered under the Societies Registration Act, 1860 (hereinafter referred to as the ‘Act, 1860’) and the primary object of the Bar Association is to ensure welfare of its members and take necessary steps therefore."
The Court stated, "Thus, Bar Association is not a public body so as to be covered under Article 12 of the Constitution of India." It further stated, "Bar Association is a body of private individual lawyers and in normal discharge of its functions, it does not perform any function which can be said to be a public function."
On writ relief against the Bar Association, the Court stated, "In absence of any public functions being discharged by the Bar Association, and the Bar Association not being a ‘State’ or its instrumentality within the meaning of State in Article 12 of the Constitution of India, in our considered opinion, no Mandamus can be issued by the Court to Bar Association in exercise of our jurisdiction under Article 226 of the Constitution of India."
On recourse for alleged trespass, the Court stated, "Such acts of the lawyers, which have been complained of by the appellant, may warrant criminal action, however, for the said purpose; the learned Single Judge has rightly observed that the appellant could take appropriate steps by instituting proceedings under the criminal law so as to put criminal law machinery in motion."
On the Bar Council of Delhi prayer, the Court stated, "the appellant ought to have approached the Bar Council instead of filing the writ petition seeking a Mandamus for issuing direction to the Bar Council to take action as desired by the appellant." and "In the instant case, the appellant did not represent her cause to the Bar Council of Delhi nor even the Bar Council of Delhi was impleaded as a party respondent before the learned Single Judge and accordingly, the Mandamus, as sought for by the appellant to the Bar Council of Delhi, could also not be issued."
The Court directed: "For the reasons aforesaid, we find no force in the instant appeal which is hereby, dismissed. Notwithstanding dismissal of the instant appeal, it is needless to say that it will always be open to the appellant to take recourse to appropriate civil or criminal action, as may be permissible under law by invoking the appropriate jurisdiction of a Court of competent jurisdiction or by approaching the authority concerned, including the Bar Council of Delhi."
Advocates Representing the Parties
For the Petitioners: Mr. Shishir Pinaki, Mr. Rakesh Singh, Mr. Shavnam Singh, Advs. with the petitioner in person
For the Respondents: Mr. Ashish Garg & Mr. Govidn Singh, Advs.
Case Title: SANGITA RAI versus NEW DELHI BAR ASSOCIATION & ORS.
Case Number: LPA 368/2024
Bench: Chief Justice Devendra Kumar Upadhyaya, Justice Tejas Karia
