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A Boost And A Challenge

A Boost And A Challenge

Supreme Court last week upheld the Kerala High Court’s order that priests and nuns can practice as advocates and dismissed the appeal filed by the Bar Council of India.

Fr. Thomas Puthussery, Sr. Tina Jose and Sr. M.Tessy after the completion of LL.B approached the Bar Council of Kerala to register as advocates as per Advocate’s Act. The Bar Council refused their entry into the legal fraternity stating the very way of life they have chosen is a profession and an advocate cannot practice two professions.

Aggrieved by the contention of the Bar Council of Kerala, they filed a Writ petition before the Kerala High Court. The petitioners contented that as per the provisions of the Advocates Act and the Rules framed there under, by the Bar Council of India and the Bar Council of Kerala, they are eligible to be enrolled. The priest submitted that by being a priest, he cannot be treated as employed in any salaried post or job. He stated that the priesthood is a religious lifestyle and not a profession. The Catholic Church considers the marriage as one of the seven sacraments and Priesthood is also a sacrament. As a priest, the petitioner is doing purely spiritual service. It is not a bar for doing any profession. He also pointed out number of priests who are rendering service as advocates in India.

Meanwhile, the nuns asserted that they are not engaged in any kind of salaried job or activity and do not receive any remuneration. It was also submitted that nunhood is a religious lifestyle and not a profession. They too pointed out that there are many nuns serving the people as advocates.

Based on the above reasons, the petitioners stated that denying them permission to enrol as advocates is the violation of their fundamental rights under Articles 14,15,16 and 19(1)(g),21 and 25 of the Constitution of India.

The respondents argued that the vocation chosen by the priest has got all the trappings of an employment and a profession as he is rendering service as parish priest. Nuns, priests and sanyasins belonging to different religions are members of a profession and are not expected or cannot be permitted to practice the legal profession. If they enter the field of administration of justice, the same will run counter to the fundamental tenets of secularism. So they are not entitled to be enrolled as advocates.

After hearing both the parties the Hon’ble Judge K. Balakrishnan Nair observed that the contention of the respondents (Bar Council of Kerala, Enrolment Committee and Bar Council of India) that priests nuns, sanyasins etc., are not eligible to join the profession of lawyering, is not supported by any statutory provision. But on the contrary, “I feel that the entry of such persons, will only add lustre to the profession. The profession needs selfless dedicated persons to take up the causes of the downtrodden and of environmental protection, without being concerned with the fee paid”. Thus he concluded that being a nun or a priest is not a disqualification for enrolling oneself as advocate.

The Bar Council of Kerala accepted the judgement of the learned Single Judge on 7th November 2005 and agreed to implement the same.

But the Bar Council of India took exception to the same and challenged the order of the Single Judge before a Division Bench of Kerala High Court by a Special Leave Petition.

On 21st March 2006, Justice V.K.Bali, the then Chief Justice and Justice J.B.Koshy held that a clergyman, be it a priest or nun, as a class professing religion would not attract the bar for entry into profession as created under Rule 2(h).  Hence the court dismissed the petition devoid of any substance.

The Bar Council of India filed an appeal against the order of the Kerala High Court before the Supreme Court. The Court admitted the matter on 5th July 2006.

The case came up for hearing on 15th September 2017.  The Court comprising of Justice MK. Sikri and Ashok Bhushan   upheld the order of the Kerala High Court and dismissed the petition of the BCI stating ‘legally qualified priests and nuns can practice as advocates and there is no bar on them in doing so’.

I call it a landmark judgement. It not only upheld the ethics of democracy but the very secular credentials of our country. This judgement shows India’s trust in the selfless service of priests and nuns. The judgement also appreciates the genuine contribution of Christian missionaries as the single Judge of the Kerala High Court stated “I feel that the entry of such persons, will only add lustre to the profession”.

The said judgement in a way is a boost and a challenge. It demands much from priests and nuns as the judge said, “The profession needs selfless dedicated persons to take up the cases of downtrodden and environmental protection without being concerned with the fee paid”.

Can all the priests and nuns practise as advocates? A question may arise. Of course priests or nuns, who are engaged in full-time employment like nursing, teaching or any other such, cannot practise as advocates. Any such person who wants to undertake this profession should resign from the other post. Then what about a priest or nun who is a full time employer but not receiving any remuneration?  The judgment clearly stated, whether receiving remuneration or not is not a criterion. If it is a full-time job/employment, one cannot practice as a lawyer even if one is not receiving any remuneration.

Can a priest or nun be appointed under the Government? The judgement says, being a nun or a priest is not a disqualification for being appointed under the Government. The disqualification is however not being a nun or priest but whether she/he holds a full-time employment or not. Hence under Indian law a priest or a nun is entitled to take up any Government job.

Legal profession/Legal aid mission is a Front Line ministry in the Catholic Church and it is getting well organised.  More than 1500 priests and nuns have completed LL.B. About 500 of them are actively practising in various courts in India.  There is an association of Catholic Lawyer priests and nuns national level and in every state there is a chapter too.

Legal aid mission is very much needed today than before. Injustice, corruption, exploitation etc are on the rise. Money power, muzzle power and mafia play vital role. Empowerment of women, children, weaker sections of the society is need of the hour. Trafficking of children, atrocities against women are on the rise. Amidst such situations, legal knowledge is power to empower the citizens. Poor are faced with various problems than before.

It is the mission of Jesus. “He has sent me to bring good news to the poor, to heal the broken-hearted, to announce liberty to captives and freedom to prisoners” (Isiah 61:1).   People need not only legal advice or virtual help but they need actual assistance. A lawyer priest or nun can take their problems before competent courts and bring them justice.

In the above circumstances, the judgement calls for selfless service of priests and nuns. Therefore we need more priests and nuns to come into this field to render service to the society and the nation.

However there is some reservation on the part of certain congregations to send their nuns/priests to become advocates. Of course they fail to understand the dignity of the profession and the benefit of legal aid mission. Knowledge of law enables a priest or nun to exercise his/her pastoral ministry better without fear. She/he can settle the family disputes in the parish legally. They can render legal advice. They can organise various seminars on different laws to empower the community, women, children etc. Every citizen cannot afford to go to court. A lawyer priest/nun can organise Lok Adalat, mediation programs etc to settle the matter out of court. Hence legal aid mission should receive great recognition in the Church.

(The writer is Advocate, Supreme Court & Former Member of National Commission for Minority Educational Institutions, Govt of India. Email: lawyering5@gmail.com)

(Published on 24th September 2017, Volume XXIX, Issue 39)