Above: Lawyers of Patna High Court protesting against the proposed Advocates Amendment Bill/Photo: UNI

The Bar Council sub-committee’s reasons for rejecting the Law Commission report on regulation of the legal profession creates another controversy

~By Vinay Vats 

The operational sentence relating to the report of the sub-committee constituted by the Bar Council of India (BCI) to study the 266th report of the Law Commission of India on amendments to the Advocates Act 1961 and regulation of the legal profession says that it contains undemocratic changes which will pull back the legal profession in “the dark shadow of Emergency’’ and termed it “draconian, anti-lawyer and undemocratic”. This sounds a bit extreme in the light of what actually the Law Commission suggested and its observations. Clearly, the BCI was not happy with some of these.

The biggest bone of contention was the Law Commission’s observation about lawyers going on strikes—the report had noted that various courts in the country were occupied with strikes for more than 150 days a year.

The breakdown showed that during 2012-2016, courts in the Dehradun district of Uttarakhand were on strike for 91 days a year and in Haridwar district for 103 days a year, on an average. In Rajasthan, Jodhpur saw 142 days of strike during 2012-2016, while Jhalawar saw 146 days of strike.

The figures are even worst in Uttar Pradesh. Muzaffarnagar saw 791 days, Faizabad saw 689 days, Sultanpur saw 594 days and Varanasi saw 547 days of strike during 2011-2016.

Even the Supreme Court, in a plethora of judgments, has called these strikes by lawyers unethical, saying they have no right to go on strike, give a call for boycott or even a token strike.

Another burning issue relates to the suggestion of stringent laws to make advocates accountable for their acts, especially in cases of contempt.

The Law Commission’s 266th Re-port was in response to the observations given by the Supreme Court in Mahipal Singh Rana vs State of Uttar Pradesh [AIR 2016 SC 3302]. The apex court while hearing an appeal relating to criminal contempt by an advocate for threatening a senior civil judge, expressed its disappointment and displeasure towards unsatisfactory regulatory mechanism governing the advocates. A three-judge bench of Justice Anil R Dave, Justice AK Goel and Justice Kurian Joseph requested the Law Commission and the government of India to take appropriate steps in this regard.

In response, the BCI constituted a sub-committee comprising eminent members from the bar which re-cently submitted its report to the Council. It slammed the 266th report in no uncertain words. The BCI had also convened various meetings with state bar associations throughout the country and decided to reject the Law Commission report.

“A very strong opposition will have to be recorded on behalf of 17 lakh advocates of the country regarding amendment proposed in report number 266 whereby this democratic functioning of the Bar Council is withdrawn and instead a non-democratic functioning on the basic principle of nomination are incorporated,” said the sub-committee.

The proposed major amendments under the request made by the apex court, included:

• While strongly advocating for entry of foreign law firms in India, the Law Commission proposed many new definitions to be incorporated in the Advocates Act. This included definition of Advocate, Misconduct, Bar Association, Law Firm, Legal Services, etc.
• Another major amendment was with regard to the democratic structure of Bar Councils which had proposed the inclusion of a few nominated members in the Council apart from the elected ones. The nominated members could include retired judges, senior advocates and renowned lawyers.
• Under the head of disqualification of advocates, two new heads had been added—advocates convicted of Con-tempt of Court Act and people who have been dismissed or removed from service or employment under the Union or the State or its undertakings or any statutory body or Corporation. Presently, this clause only includes advocates convicted of an offence involving moral turpitude and convicted on an offence under the provisions of the Untouchability (Offences) Act, 1955.
• The proposed amendment also imposed prohibition on boycotts or abstention from courts’ work. It stated that no association of advocates or any member of the association or any advocate, either individually or collectively, shall give a call for boycott or abstinence from courts’ work or cause obstruction in any form in courts’ functioning or in the premises.
• Introduction of Special Public Grievance Redressal Committee of Bar Council of India to look into the complaints received against advocates.

The biggest fear among BCI members is that changing the democratic structure of Bar Councils will adversely affect their working because a new tussle will start between advocate members and retired judge members who will hold position in the bar associations as per the proposed amendment. Also, amendments relating to strikes and contempt cases will, the BCI feels, adversely affect the present form of litigation in India.

Whether the proposed amendments will eventually be incorporated or not is yet to be seen but it has certainly kicked open a hornet’s nest within the BCI and the legal fraternity in general.