New Bar Council Of India Rules: Has The Regulatory Authority Overstepped Its Mandate

KEY TAKEAWAYS

• The Bar Council of India had recently amended the ‘Bar Council of India Rules’ by inserting Sections V and V-A under Chapter II of Part VI.
• The newly added Rules created widespread criticisms from the members of the Bar as they believed that their freedom of speech and expression was curtailed therewith.
• A Writ Petition under Article 226 if the Indian Constitution was filed before the Kerala High Court by Adv. Rajesh Vijayan, a member of the State Bar Council of Kerala.
• The BCI submitted that it is yet to receive the approval of the Chief Justice of India, and thereafter, the Kerala High Court adjourned the case.
• Following extensive opposition, the Council has decided to constitute a Panel to review the impugned Rules, and until then, the same will be kept in reserve.

INTRODUCTION

The Bar Council of India (BCI) is the Apex Regulatory Authority that is dedicated towards strengthening and maintaining the standards of professionalism in the Indian Bar. The All India Bar Committee, in 1953, recommended for the constitution of an All India Bar Council and of a Bar Council for each state. This led to the enactment of the Advocates Act in 1961. Consequently, the Bar Council of India was established in 1961 under Section 4 of the Advocates Act, 1961 to regulate the Legal Education and Legal Profession in India. There are also State Bar Councils established in various States in India. The functions of the Council has been listed under Section 7 of the Advocates Act, 1961. Such functions include laying down the standards for professional conduct, promote reforms in the legal system, promote and lay down standards for legal education, etc. The Bar Council also has formed certain committees to make recommendations.

ROLE OF BCI IN REFORMING THE INDIAN LEGAL SYSTEM

Education is the key to succeed in any sector, and legal profession is no exception to this. Therefore, improvising Legal Education is necessary to yield long term benefits in the profession. The role of the Bar Council had a huge impact on the development of Legal Education. The introduction of five year Law course, establishment of National Law Universities are some instances of BCI's involvement in shaping the right Legal Educational System. The Council also advices on the enrollments and practice of advocates. The All India Bar Examination (AIBE) is conducted to select eligible Advocates to the Indian Bar. To supervise professionalism in the Legal service is also one of the chief functions of the BCI.

However, the powers of the BCI are not absolute, and the statutory body's authority is only confined to making recommendations, suggestions, and rules to maintain the standards of the Legal Profession and Legal Education. In recent times, the Council is alleged to have overstepped its limit. From the scrapping of one year LL. M. (Masters in Law) to the inclusion of New BCI Rules, the Council is being caught into some controversies. At present, whenever a new order or rule is passed by the BCI, it is always suspected to contain an unauthorised order. Much recently, the Council has amended the BCI Rules by inserting Sections V and V-A in Chapter II of Part VI which has provoked widespread criticisms. Several people, including common citizens, lambasted the new Rules for infringing the right to freedom of speech and expression of the Bar.

WHAT ARE THESE BCI RULES

The Bar Council of India introduced the Bar Council of India (BCI) Rules under Section 49 of the Advocates Act, 1961, which confers the rule making power on the Council. The BCI Rules contain a total of nine parts which lays down the standards for quality legal professionalism. These include rules relating to the enrollment, disqualification, elections, and removal of Advocates as members to the Indian Bar. Rules regarding the etiquette and professional conduct is dealt under Chapter II of Part VI. The Bar Council had introduced these rules through its power under Section 49(1)(c) of the Advocates Act which empowers the Authority to make rules for strengthening the standards of professional conduct and etiquette that an advocate must follow.

The New BCI Rules

On 25th June 2021, the Bar Council released a statement regarding the amendment of the BCI Rules. Sections V and V-A were added to Chapter II of Part VI of the BCI Rules.

Section V reads as follows: Duties towards Society and Bar:

An Advocate shall conduct himself/herself as a gentleman/gentle lady in his/her day to day life and he/she shall not do any unlawful act, he/she shall not make any statement in the Print, 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, or against State Bar Council or Bar Council of India nor shall any Advocate engage in any willful 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 such Advocates would be liable to be proceeded with under Section-35 or 36 of the Advocates’ Act, 1961.

Section V-A reads as provides for Code of conduct and Disqualification for members of Bar Councils:

The Section bars an Advocate or member of the Bar Council/s from making any derogatory or defamatory remarks against the Bench or the Bar Council of India or State Bar Councils. It also states that the orders or resolutions of the Council/s should not be criticized or attacked in public domain. The Section prescribes punishment for violating the rules. An Advocate or Member acting against the rules would be suspended, or removed from membership. S/he will also be disqualified from contesting elections in any Bar Association or Bar Council. A Committee would be established to declare on the disqualification of such Advocates and Members.

ANALYSIS OF THE NEW RULES

Section V of Chapter II, Part VI can be divided into two parts. One, rule against passing derogatory or defamatory remarks on the Bench as well as the Council. This section is particularly important to the Council because there is already a law protecting the judiciary against such remarks, that is, the Contempt of Courts Act, 1971. Whereas through this section, the Bar Council actually seems to protect itself against criticisms. Moreover, what is more concerning is the second part of the Section which bars the Bar from disregarding or defying the orders or resolutions of the Council/s. This, definitely, puts a direct block in an Advocate's enjoyment of her/his freedom of speech and expression. Article 19(1)(a) of the Indian Constitution guarantees the Right to Freedom of Speech And Expression. Though it imposes certain restrictions on the same under Section 19(2), yet, it doesn't mean that the restrictions are discretionary. Accordingly, barring an Advocate from passing remarks cannot attract Section 19(2) of the Constitution.

Section V-A intends to strengthen the immunity provided to the Council under Section V. It further states that no decision of the Council/s shall be criticized or attacked in public domain, and that no one can lower the dignity of the Council/s. The repercussion of violating these rules is the suspension or removal of the Advocates from their membership. The penalty it imposes also seem superfluous. Imposing a fine would at least have been acceptable rather than putting a black on the Advocate altogether.

Section V-A also states two relieving clauses. One, a healthy and bona fide criticisms made in good faith is exempted from the Section’s mandate, and two, a committee is to be constituted to decide on the disqualification of such members. Though these two provisions provide a small ray of hope, yet they cannot be an absolute escape. The final decision, nonetheless, would lie on the Bar Council only, thus, the two provisions could have little impact in the long run.

EFFECT OF THE NOTIFICATION OF AMENDMENT

As mentioned above, the new amendment was heavily censured by the members of the Bar so much so that several petitions were filed before different High Courts in India. The recent one is a writ petition before the Kerala High Court filed by Adv. Rajesh Vijayan. The petition pleaded to struck down the new BCI Rules as being violative of Articles 14 (Right to Equality), 19 (1)(a) (Right to Freedom of Speech And Expression), and 21 (Right to Life and Liberty) of the Indian Constitution. It was alleged that the rules were vague and could cause agony to Advocates. Furthermore, it was stated that the amendment did not receive the approval of the Chief Justice of India which is a mandatory provision under Section 49 of the Advocates Act to make the Rules valid.

BCI’s Decision

In response to the petition, the Bar Council acknowledged before the Kerala High Court that the amendment is yet to be approved by the Chief Justice of India, and hence, the Rules have not yet taken effect. Further, it also made submissions of its decision to review the New Rules by constituting a new Committee for the same. The Committee would comprise of Senior Advocates, and Members from the Bar Council/s and the High Courts. The Committee will submit its report within three weeks post which the Council would proceed ahead. Until then, the Council decided to keep the implementation of the Rules in abeyance. The Court, consequently, adjourned the matter.

CONCLUSION

The newly added Rules, the eruption between the Bar and the Council, and the subsequent decision of the BCI to review the same, clearly manifests the contentions in the case. The object of establishing the All-India Bar was to nourish the Legal System and its power is limited. However, in recent years, the BCI is exceeding its power limit by interfering in the procedure of education and practice. Similarly, any provision that infringes a person’s freedom of speech and expression is unconstitutional and void. This was laid down by the Supreme Court in Shreya Singhal v. Union of India (2015) 5 SCC 1. Similarly, freedom to express her/his views and opinions is a basic right of democracy. Therefore, a law that violates such a right is not valid, and it is irrelevant whether the Body making the order has the authority or not. The Bar Council of India, being the Apex Regulatory Authority, must ensure strong and stable relationship between the Bar and the Bench.