Right to advertisement is one of the intrinsic features of conducting any business, profession, or any other organization in today’s world. A person can transmit any type of information to the general public, provided that such advertisement conforms to the norms and regulations established in this regard. Communication can be through newspapers, magazines, emails, letters, events, etc.
Advertisements and Commercial Speeches have been incorporated under Article 19 (1) (a) of the Constitution of India. It has been accepted as a part of Freedom of Speech and Expression. The Supreme Court has considered in the case of Tata Press that the public at large has a right to receive the commercial information and such protection of Article 19 (1) (a) of the Constitution of India is available to both speaker and recipient of the speech. The commercial nature of such expressions was held to be immaterial while extending the protection under the said article of the Constitution.
And like any other fundamental right, freedom of speech and expression is also not an absolute right. Under Article 19 (2) of the Constitution of India, the state may impose “reasonable restriction”.But this right of the advertisement has been completely done away with, in the case of legal professionals. There is a complete prohibition on legal professionals to advertise their legal services through the court of law. This includes any type of advertisement w.r.t. legitimate administrations provided, by posing as a legal counsellor under the legal framework.
The root of prohibition can be directly traced back to Rule 36 of the Bar Council of India as under:
“36. An advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned. His sign-board or name-plate should be of a reasonable size.
The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or organization or with any particular cause or matter or that he specializes in any particular type of worker or that he has been a Judge or an Advocate General.”
This rule clearly states that the Legal Profession is different from any other profession, unlike others soliciting work under the legal profession, which has been completely banned by such rule. The reasoning was that the legal Profession being the noblest profession will lose its light if the advertisement is permitted within the legal market. Justice Krishna Iyer in the case of Bar Council of Maharashtra v. M.V. Dhabolkar said that:
“Law is not an exchange, not briefs, not stock, thus the paradise of business rivalry ought not to vulgarize the lawful calling”. It is the idea that legal advertising will render this prestigious profession into a mere profit-making institution that will manoeuvre the focus from the concepts like liberty and Justice to profits.
However, there lies a cosmic debate in the legal sector and existing criticism against such archaic BCI rules which prohibit all types and forms of advertisement. Pitting the ideas of Reasonability, Constitutionality, Transparency, free flow of ideas, globalization, and liberalization against the above-said rule.
Law is a traditional profession having public service goals at the centre of it all. From the start of this profession considered as an upholder and protector of law. The service under such a sector was provided with the foremost aim to serve society and then to earn a livelihood.
In the case of Indian Council of Legal Aid and Advice v. Bar Council of India, the Supreme Court enunciated that “profession of law being a pious and honourable profession, its main object being the service of mankind by serving the system of administration of justice, it is the pious duty of the Bar Council to protect its public image by restricting the inflow of large numbers of retired personnel who seek to enter a legal profession solely for additional gains.”
It is imperative to understand that law as a profession is nothing without its ideals and ethics. And therefore in every law school curriculum, an important subject is taught Professional Ethics to make sure that the young law minds met with the demands of such a profession by upholding the ideals and ethics.
Also in the case of Bar Council of Maharashtra v. M.V. Dhabolkar, Justice Krishna Iyer has further stated that: “the canon of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsy, for the betterment of the legal business.”
Rule 36 of BCI also stands on a very thin line constitutionally, as it is not covered properly on any of the exceptions laid down in Article 19 (2) of the Constitution of India. The same rule was tested in the case of V.B. Joshi v. Union of India 2008, where the scope of online advertisement was given some relaxation to help the lawyers to reveal certain information, such changes will not come into existence if this rule 36 comes entirely works within the periphery of the Article 19 (2) of the Constitution of India.
And strict actions could be taken against the lawyers or law firms who still advertise through circular letters or election manifestos or organizing moot court competitions or offering certificate courses or written articles or using visiting cards etc. All of this adds to the vulnerability and flawed reasoning behind this rule. Now, how can a rule safeguard the nobility of the profession when it might not even be constitutionally sound?
The amendment in rule 36 is a clear effect of the developing change in the system, where even the legislators accepted the adaptation by introducing the exception clause in the above-mentioned rule. The amendment to Rule 36, Section IV of the BCI rules allowed advocates the opportunity to advertise online. It permits the advocates to upload their names, addresses, phone numbers, e-mail IDs, enrolment details, qualifications, and areas of practice on the selected website.
Thus, it may be said that law service is becoming subject to trade-related laws, therefore consumers, suppliers, demand, and supply must be given adequate space to conduct activities. Attaching such a negative image with the term trade is also unnecessary, trade is not just about profits but also consumer satisfaction, informed choices, free flow of information, etc.
It is time to come to terms that the Legal profession is both noble as well as contain commercial characteristics, and suppressing the later part in the limelight of the former is simply mistaken and wrong.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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