A writ petition has been filed in the Supreme Court for a declaration that the newly amended rule under Part VI of Chapter II of the Bar Council of India Rules is violative of Section 49 (1) of the Advocates Act, 1961 and the fundamental rights guaranteed under Part III of the Constitution, in particular, Articles 14, 19 (1) (a), 19 (1) (c) and 21.

The petition has been filed by two advocates, Rohini Amin and Maria Nedumpara. Amin is enrolled at the Bar Council of Maharashtra & Goa and is also the General Secretary of National Lawyers Campaign for Judicial Transparency and Reforms (NLC), an organization registered under the Maharashtra Public Trusts Act, 1950, and Nedumpara is enrolled at Bar Council of Kerala.

Earlier, the Bar Council of India via a Gazette notification had amended its rules, making any statement made in Electronic or Social Media, which is indecent or derogatory, defamatory or motivated, malicious or mischievous against any Court or Judge or any member of Judiciary, by any Advocate shall be a ground for his/her suspension or disqualification. 

It was also stated that if any statement made by any advocate or engage in any wilful violation, disregard or defiance of any resolution or order of the State Bar Council or Bar Council of India and any such act/conduct shall amount to misconduct and a ground for disqualification.

The Petitioners have moved the Apex Court considering the amendment being introduced as section V and section V-A under Part VI of Chapter II of the Bar Council of India Rules as shocking in how tyrannical they are. 

“The Bar Council has no legislative powers which fall in the exclusive province of the Parliament. The only power vested in the Bar Council is that of a delegate, to give effect to the Act of Parliament, namely, the Advocates Act, 1961. Such a power is not a substantive power, but falls in the realm of procedure. In incorporating the prohibition as stated above, the Bar Council has exceeded its jurisdiction, acted as if it is the Parliament.”

“However, assuming for a moment, for mere argument’s sake, that the Bar Council is vested of such jurisdiction of legislation, then also, a mere reading of Section V and V-A would indicate that the Bar Council lost sight of the elementary principles of law, which as a professional body of lawyers, could have least been expected of it,” states the petition.

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“Through amendment under challenge, namely, Section V, apart from seeking to protect a judge or a member of judiciary from derogatory or defamatory statement by a lawyer in print, electronic or social media, the Bar Council seeks to protect itself of any such criticism… It is difficult to believe that the Bar Council of India made such rules, which even the worst dictator, tyrant would not have thought to…,” the petition further states. 

Read the plea here; 

The President of National Lawyers Campaign Mr. Mathews J Nedumpara on Thursday, wrote an open letter addressing to the Prime Minister Mr. Narendra Modi along with Chief Justice of India Mr. S.A. Bobde, Chief Justice of Rajasthan High Court and Chief Minister of Rajasthan against reported decision of the collegium of the Rajasthan High Court recommending 17 names for appointment as judges of the Rajasthan High Court.

Mr. Mathews in his letter said that “If selection to the august office of the judge of the High Court is made upon the vacancies being duly notified and applications being invited from all eligible candidates, with a further opportunity to the public at large to make any complaints or objections of the candidate so selected, in other words, had the selection process been transparent, seemingly atleast on the basis of merit, the allegation that Mrs. Alka Bhatnagar, though not deserving to be elevated, is  elevated only because of her being the mother-in-law of a sitting Supreme Court judge’s son , may not be discredited to be nepotism”.

The allegations in the letter are that many of the lawyers who have been recommended are not eligible or deserving candidates, but are recommended only because of their kinship and other connections. He further elaborated by giving an example as one of the candidates, namely, Mrs. Alka Bhatnagar, is the mother-in-law of Hon’ble Mr. Justice Naveen Sinha’s son. 

“As the President of the National Lawyers Campaign for Judicial Transparency and Reforms, an organization registered under the Maharashtra Public Charitable Trust Act, and as one who is leading a campaign which has thousands of members as participants in different parts of the country, I will be failing in my duty if I hesitate to address this letter. I am in Cochin. I have no connection with Rajasthan except through lawyers and activists. I am sure even my adversaries would not attribute any kind of malice for I do not know any one of the 17 lawyers recommended for elevation, much less even heard of them. What I heard from certain sources, on the face of it, is very disturbing”, said Mr. Nedumpara.

Thereafter, he pointed out that in the Dark Ages, the Popes had appointed their nephews as their successor. Blood is thicker than water. Kinship is the greatest of all bonds among us humans. Even the noblest of men and women in power are not immune from the sin of nepotism. He added that the perception of the common man is that collegium is nothing but a synonym of nepotism and kinship. Could the common people be found fault with for that? The perception is that the majority of the past, present and future Chief Justices owe their office to their kinship and the common perception is that merit alone will not make you eligible for appointment as a judge of the High Court before the age of fifty. What is needed is a godfather to sponsor you.

Therefore, he concluded by making a remark that primary qualification of a judge is to be born in the family of judges and prominent lawyers or powerful politicians. 

Mr. Mathews views on Justice Krishna Iyer in the letter; –

“I still remember vividly, an article of Justice Krishna Iyer which I read in the year 1994 shortly after the Judges 2 case. While the elite class of lawyers in Delhi celebrated the judgment, Justice Krishna Iyer foresaw that it would lead to nepotism and oligarchy. I had only a very limited association with Justice Justice Krishna Iyer. I had the good fortune to discuss these issues with that great soul. What was to my disbelief was that even Justice Krishna Iyer was fearful of criticizing the judges, he told me that it leads to so much of hostility. If Shri Krishna Iyer himself was so fearful of the hostility that he would invite, how much more fearful would I be when i speak against the collegium/nepotism. What gives me the strength is the faith in the God of truth. Fear not in speaking the truth, because ultimately, it will prevail. The reason I address this letter is that I have certain amount of faith in the judges”.

–India Legal Bureau