CASE ANALYSIS OF

Bar Council of India v Union of India

(2012) 8 SCC 243

By-

ANANYA DHAWAN

2nd Year, BBA LLB (Hons)

Symbiosis Law School, NOIDA

Mobile: xyz

E-mail:drhemanidhawan@gmail.com

www.probono-india.in

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 November 25, 2020

ABSTRACT

The following is a brief case analysis of the case entitled Bar Council of India v Union of
India [(2012) 8 SCC 243].

In this case, the constitutional validity of sections 22-A, 22-B, 22-C, 22-D and 22-E of the
Legal Services Authorities Act 1987 as inserted by the Legal Services Authorities
(Amendment) Act, 2002, under Chapter VI-A of the act providing for pre-litigation
conciliation in settlement of matters concerning public utility service up to a particular
pecuniary limit by a Permanent Lok Adalat, were challenged on the grounds of being
violative of Article 14 of the Indian Constitution as well as of rule of law. The Supreme
Court of India upheld the constitutional validity of these sections and the powers of the
Permanent Lok Adalats to adjudicate disputes on the grounds that the Parliament can set up
effective dispute settlement mechanisms pertaining to particular statutes for efficiency and
effectiveness and that there is no constitutional right as such that states that a person can
necessarily have a dispute adjudicated by means of court only (as per Articles 39-A, 323-A,
323-B of the Constitution).

BRIEF FACTS OF THE CASE

The Bar Council of India, petitioner in the present case, filed the present writ petitionunder
Article 32 of the Indian Constitution, challenging the vires of Sections 22-A to 22-E under
Chapter VI-A inserted by the Legal Services Authorities (Amendment) Act, 1987 on
grounds of being arbitrary, violative of Article 14 of the Indian Constitution and contrary to
the rule of law as they denied fair, objective and equitable justice to all.

It is the petitioner’s major grievance is that –

Section 22-C (8), which empowers the Permanent Lok Adalat to adjudicate disputes that do
not relate to any offence under Section 22-C (7) of said ActSection 22-D, which provides
that the Code of Civil Procedure 1908 and the Indian Evidence Act 1872 shall not be
applicable in the decisions made by the Permanent Lok Adaalat andSection 22-E which
provides that awards of the Permanent Lok Adalat be final without any possibility of
appealare violative of Article 14, contrary to rule of law and are unfair.

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 Hence, the present petition.

ISSUES RAISED

1. Whether the power conferred on Permanent Lok Adalat to adjudicate the disputes even
if they do not relate to any offence, as provided under Section 22-C (8), be said to be
unconstitutional and irrational?
2. Whether inapplicability of Civil Procedure Code 1908 and Indian Evidence Act 1872
while deciding disputes compromises the quality of determination of said disputes and
therefore contravenes Article 14 of the constitution?
3. Whether the composition of the Permanent Lok Adalat under Section 22-B is contrary
to rule of law, principles of fairness and justice and Article 14 and 21?
4. Whether the finality of award i.e. absence for provisions for appeal under the Act, a
violation of the constitution?

ARGUMENTS MADE BY THE PETITIONER

To establish the vice of arbitrariness in the above-mentioned Sections and the inconsistency
of the impugned provisions with the constitution, arguments made by the counsel on behalf
of the petitioner were as follows:

 It was argued that the powers conferred to the Permanent Lok Adalat to adjudicate
disputes if the parties fail to reach a settlement u/s 22-C (8) of the Act cannot
upstage the jurisdiction granted to other adjudicating forums, for instance under
statutes like the Consumer Protection Act 1986, The Telecom Regulatory Authority
of India Act 1997 and the Insurance Act 1938. To assert this contention, reliance
was placed on the case of The Premier Automobiles Ltd. v
KamlekarShantaramWadke of Bombay &Ors.1where it was held that consumer fora,
specialized courts/tribunals under the Telecom Regulatory Authority of India Act
1997and the Insurance Act 1938 have absolute jurisdiction insofar as enforcement of
rights under these statutes are concerned. Therefore, with respect to this notion,
jurisdiction cannot be taken away by the Permanent Lok Adalat.
 To elaborate the arbitrariness of the impugned provisions, the counsel on behalf of
petitioner also stated that Section 22-C(1) read with Section 22-C(2) provides that in
1
The Premier Automobiles Ltd. v KamlekarShantaramWadke of Bombay &Ors. 1975 AIR 2238, 1976 SCR (1)
427.
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 order to raise a dispute to the Permanent Lok Adalat, only a unilateral application is
required by any party and this gives leeway to a public utility service provider to
seize the opportunity and steer the proceedings to the Permanent Lok Adalat rather
than other forums, like the consumer fora.
 The non-requirement for the Permanent Lok Adalat to follow procedures under Civil
Procedure Code,1908 and the Indian Evidence Act, 1872 while making decisions on
merits prevents proper examination of deficiencies in services such as transport,
postal, supply of water, power or light etc. which makes the provisions arbitrary and
irrational, as delivery of justice will not be effective.
 Further, the composition of the Permanent Lok Adalat as provided under Section 22-
B of the Aact, consisting of one judicial member and two administrative members is
also an issue since award given by the Permanent Lok Adalat has to be by majority
and administrative members are dominant which is against the principles of justice
reflected in the Constitution.
 It was submitted on the petitioner’s behalf that no right to appeal has been provided
against the award made by the Permanent Lok Adalat which is unconstitutional
since, it is against the fundamental procedures of fair procedure for, any adverse
decisions of the Permanent Lok Adalat would infringe upon the fundamental rights
of the aggrieved citizen as public utility services relate to life under Article 21 of the
constitution.

ARGUMENTS MADE BY THE RESPONDENT

To assert the constitutional validity of impugned sections, the counsel on behalf of the
respondent made the following submissions:

 It was argued that the issues raised in present writ petition have already been
decided by this hon’ble court in the case of S.N. Pandey v Union of India2and
therefore, the present petition should be dismissed on this ground.
 It was submitted that the impugned provisions have been enacted in tandem with
Article 39-A of the constitution which provides that the state, in order to promote
justice and ensure that citizens are duly able to secure justice, can formulate suitable
legislations or schemes to fulfill said duty. The purpose of and intention behind the

2
S.N. Pandey v Union of India, Writ Petition (Civil) No. 543/2002; (2012) 8 SCC 261: (2012) 4 SCC (Civ) 422.
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 impugned provisions is to furnish an adjudication mechanism that is economical,
prompt and efficient.

LEGAL ASPECTS

The case involves around the following provisions:

The Legal Services Authorities Act, 1987:

Section 22-A:Definitions (for the purpose of sections 22 and 23 and Chapter VI A: PRE-
LITIGATION CONCILIATION IN SETTLEMENT).

Section 22-B: Establishment of Permanent Lok Adalats.

Section 22-C: Cognizance of cases by Permanent Lok Adalat.

Section 22-D: Procedure of Permanent Lok Adalat.

Section 22-E: Award of Permanent Lok Adalat to be final.

The Constitution of India:

Article 14:Arbitrariness in state action whether legislative, executive or of any authority

within the meaning of state under Article 12 of the constitution is a negation of equality
under Article 14.3 (The petitioner believes impugned provisions to be arbitrary and
irrational)

Article 39-A:Provides that the state, in order to ensure that citizens are able to secure
justice, shall enact suitable legislation or schemes to promote justice and accord equal
opportunity to them for this purpose.

Article 323-A: Establishment of administrative tribunals by a parliament law for

adjudication or trial of disputes and complaints related to recruitment and conditions of
service of public service providers.

Article 323-B: Parliament’s power to provider for adjudication or trial by tribunals of any
disputes, complaints or offences.

3
Ajay Hasia v. Khalid Mujib Sehravardi(1981) 1 SCC 722; Maneka Gandhi v. Union of India(1978) 1 SCC 248.
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 (Articles 39-A, 323-A, 323-B are used to establish validity of the powers conferred to the
Permanent Lok Adalat by the impugned provisions)

PRECEDENTS

The decision of the court was based on the following cases:

S.N. Pandey v Union of India4

The challenge to validity of impugned provisions in the present case came up before the
court in SN Pandey case wherein it was held that no constitutional infirmity exists in the
legislation as the act aims at ensuring impartial and speedy justice to litigants.

Cases mentioned to highlight the differences between tribunals and courts:

M/s Harinagar Sugar Mills Ltd. v Shyam Sundar Jhunjhunwala and others5

Associated Cement Companies Ltd. v. P. N. Sharma &Anr6.

KihotoHollohan v. Zachillhu&Ors7

Union of India v R. Gandhi, President, Madras Bar Association8

It was held in the present matter while examining the above-mentioned cases: that
jurisdiction can be transferred to tribunals with capable members comprising of both
technical and/or judicial members as the need be. The legislature can re-organize jurisdictions
of judicial tribunals, subject to judicial review.

CRITICAL OVERVIEW OF THE JUDGEMENT

The petition was dismissed by the court.

Impugned provisions under Chapter VI-A were held to be constitutionally valid as they
provide for pre-litigation conciliation procedure with respect to disputes pertaining to public
utility services like transport, power, water or light supply etc. which require expeditious
settlement. Other than the urgent attention that these disputes require, the impugned

4
Supra, Note 2.
5
M/s Harinagar Sugar Mills Ltd. v Shyam Sundar Jhunjhunwala and others, 1962 (2) SCR 339.
6
Associated Cement Companies Ltd. v. P. N. Sharma &Anr, (1965) 2 SCR 366.
7
KihotoHollohan v. Zachillhu&Ors, 1992 Supp (2) SCC 651
8
Union of India v R. Gandhi, President, Madras Bar Association(2010) 11 SCC 1.
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provisions help in reducing the already heavy burden of cases in courts. For such intentions
and purposes hence, Parliament can most definitely set up dispute settlement mechanisms
that are efficacious and the same is not in contravention of the constitutional scheme or the
rule of law. Besides, it must be noted that the Adalat only settles disputes that are not settled
by conciliation and settlement procedures.

Answering the question of unconstitutionality and irrationality of adjudication of disputes

concerning public utility services not relating to any offence as provided under Section 22-C
(8) in negative, the court held that authorities like the Adalat should be creatures of statute
and should ensure justice and fairness to parties to the dispute by giving reasonable
opportunities to them. In addition, there is no constitutional right that suggests that dispute
adjudication should be done solely by courts. The purpose of the Adalat is to settle public
utility service disputes before reaching court and upon failure of such settlement, adjudicate
such dispute if it does not relate to any offence. The major function of both courts and
tribunals is same, i.e. to act judicially.

As far as the petitioner’s contention that the impugned provisions give leeway to a public
utility service provider to seize the opportunity and steer the proceedings to the Permanent
Lok Adalat rather than other forums, like the consumer fora, the court held that this
submission has no merit as jurisdiction of fora created under special statutes is not taken
away in any manner whatsoever as the Permanent Lok Adalat is in addition and not in
derogation vis-à-vis such statutes.

With regard to the non-requirement of application of procedures under Civil Procedure

Code,1908 and the Indian Evidence Act, 1872 while making decisions on merits, the court
stated that this would not impact the quality of decisions taken as the Adalat is guided by
sense of justice and equity.

Moving to the composition of the Adalat as per Section 22-B of the Act, the non-judicial
members appointed cannot be said to lack fairness or sense of justice if in a given case, it
may be that they disagree with the judicial member with respect to the award. Capable and
competent members are appointed and therefore, the composition of the Adalat does not
contravene any constitutional proviso.

Lastly, there is no inherent right of appeal as per the court. The nature of disputes under the
act require conclusion at the earliest and no prolongation. An aggrieved person can
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approach the High Court under Articles 226 and 227 if need be. The petitioner’s submission
that burden will be brought back to the courts was found to have no merit.

CONCLUSION

To conclude, it can be said that in light of the facts and circumstances of the facts and issues
and arguments raised thereby, the decision of the court is in conformity with the principles
enshrined in the constitution. The impugned provisions are rightly held constitutional as
they aim to secure justice to citizens by extending a mechanism which is cost-friendly,
speedy and efficient.

SUGGESTIONS

For the most part, the decision of the court is reasonable, justified and correct. With regard
to the finality of award declared by the Permanent Lok Adalat and the absence of appeal, a
change can be made, in the sense that certain grounds to allow appeals can be
accommodated and a matter not fulfilling such grounds cannot have the right of appeal. This
will ensure satisfaction on the part of aggrieved party and will also curb any extra or
unnecessary burden on the courts. Also, Code of Civil Procedure,1908 and the Indian
Evidence Act,1872 are important legislations and their application in decisions of the Adalat
should be accommodated as they would only ensure effectiveness and efficiency of said
decisions.

REFERENCES

 CASES
1. The Premier Automobiles Ltd. v KamlekarShantaramWadke of Bombay &Ors.
1975 AIR 2238, 1976 SCR (1) 427
2. S.N. Pandey v Union of India, Writ Petition (Civil) No. 543/2002; (2012) 8 SCC
261: (2012) 4 SCC (Civ) 422.
3. Ajay Hasia v. Khalid Mujib Sehravardi (1981) 1 SCC 722
4. Maneka Gandhi v. Union of India (1978) 1 SCC 248
5. M/s Harinagar Sugar Mills Ltd. v Shyam Sundar Jhunjhunwala and others, 1962
(2) SCR 339.
6. Associated Cement Companies Ltd. v. P. N. Sharma &Anr, (1965) 2 SCR 366.
7. KihotoHollohan v. Zachillhu&Ors, 1992 Supp (2) SCC 651
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 8. Union of India v R. Gandhi, President, Madras Bar Association (2010) 11 SCC
1.
 STATUTES
1. The Constitution of India 1950
2. The Legal Services Authority Act 1987.
 ONLINE SOURCES
1. Navin Barik, “Wethe people and social welfare under the Indian constitution: a
study of constitutionalism (2015) http://hdl.handle.net/10603/45856 accessed at
24 November 2020.

BRIEF BIO OF THE AUTHOR

Ananya Dhawan is a 2nd year BBA LLB (Hons) student at Symbiosis Law School, NOIDA.
She has a keen interest in corporate law and criminal law. She has previously interned in
SGACC, A.K Bhambri and Associatesand Law offices of Rahul Dev.