1. In tussle with Law Commission, it is crucial for the Bar Council of India not to hold reform to ransom

In tussle with Law Commission, it is crucial for the Bar Council of India not to hold reform to ransom

It is crucial for the Bar Council of India to appreciate the reformative exercise instead of countering it blindly

Published: April 13, 2017 5:14 AM
The BCI—the top regulator of legal profession—has reportedly passed a resolution calling for the removal of the current Chairperson of the Law Commission, Dr (Justice) BS Chauhan.

Ameen Jauhar

After weeks of confrontation, the face-off between the Bar Council of India (BCI) and the Law Commission has reached a boiling point. The BCI—the top regulator of legal profession—has reportedly passed a resolution calling for the removal of the current Chairperson of the Law Commission, Dr (Justice) BS Chauhan. The resolution addressed to all State Bar Councils urges advocates across India to call a strike on April 21 and ‘burn copies of the recommendations and bill of the Law Commission’. This report was submitted by the Commission to the ministry, proposing overhauling reforms to the regulation of legal profession in India. It suggests some unprecedented amendments to the Advocates Act, notably the inclusion of non-advocate members on state Bar Councils and the BCI, as well as the statute declaring strikes by lawyers unlawful.

The exercise of improving the legal profession has been attempted at several junctions, and on all those instances, efforts of significant reform have been scuttled by the BCI, using strikes as a weapon. The most recent incident was last year when the Madras HC amended its rules of practice, to allow the High Court to prevent advocates from appearing before it, in the event they were culpable of violating the amended rules of practice. On that occasion, the BCI, in an unprecedented show of its regulatory powers, suspended the licences of 126 advocates.

What has become evident from the incident in Chennai, as well as the ongoing confrontation, is the inability of the Bar to accept any reform to the status quo. The inadequacy of the legal profession is no secret—the Apex Court on numerous occasions has hauled up individual lawyers, as well as the BCI, for its failure to impose professional standards. Members of the legal fraternity, including advocates, have also called for stronger regulations in the past.
The SC recently took a strong note of the declining standards of professionalism amongst legal practitioners (Mahipal Singh versus Union of India). It tasked the Law Commission to review the existing regulatory framework for the legal profession, and make recommendations for its strengthening. Pursuant to this mandate, the Law Commission dutifully sought inputs of all concerned stakeholders over an elaborate process of months, including the State Bar Councils and various Bar Associations.

The 266th Law Commission report has proposed major amendments to the Advocates Act regarding the constitution and functions of Bar Councils, providing for the registration and regulation of law firms and foreign lawyers, defining the term ‘misconduct’ and providing clear penalties for professional misconduct, and increasing accountability by setting up grievance redressal mechanisms for litigants to complain against advocates. It is pertinent to point out that the proposed amendments will require certain fine-tuning and further redrafting, and must not be accepted with finality in their current form. For instance, there is needless repetition in the proposed amendments to Section 7 (functions of the BCI). Additionally, there are certain drafting errors in the existing Advocates Act which have not been rectified (like the erroneous wording of Section 36). However, the reconsideration and revision of these amendments is not the challenge; the paramount concern here is the obdurate posturing of the BCI and members of the Bar against any efforts at discussing some much-needed reform for improving the professional standards of the legal profession.

There is a patent problem with the BCI’s stand against the proposed recommendations—at no point has the BCI or any of the State Bar Councils presented a detailed reasoning for disagreement. Instead, ambiguous and rhetorical phrases like ‘independence of the Bar’ and ‘safeguarding the legal profession’ have been peddled as platitudes. This stubbornness, unfortunately, puts the Bar at a backfoot. Its resentment seems less driven by cogent reasoning and more by blind obstinacy against any change to the status quo. It is not civil disobedience, but a meaningless participation in unlawful actions when courts are available to challenge an arbitrary reforms and amendments.

It is crucial for the Bar to appreciate that instead of countering reformative exercise blindly, it may be productive to engage and collaborate with the policy-makers to come out with a comprehensive set of amendments. Defiance will not serve anyone, nor will actions that erode the rule of law.

  1. K
    Kalahasthi Sarathchandra babu
    Apr 14, 2017 at 4:39 pm
    All should condemn the strike by advocates for every single trash. Because of their strike cases are ac ulating in the courts. One reason is failure of govt administration to solve the problems at the beginning itself. Law commission recommendation​s are good for the Judicial system of the Country. It is better for the advocates to accept the recommendations of the Law commission to keep the confidence of the people in the Judiciary. Advocates of this country must know how Advocates​ of USA, Britain, France and other countries are reacting to their problems​ and follow the same.
    Reply
  2. M
    Mohinder Bhatnagar
    Apr 13, 2017 at 12:55 pm
    "It is not civil disobedience, but a meaningless parti tion in unlawful actions when courts are available to challenge arbitrary reforms and amendments." Well said. It has become a fashion for all and sundry (including Bar Councils in this case) in this country under the guise of freedom of...(whatever) to berate the government or the courts in the media. They know that their stand is weak and their case would be thrown out by the courts. A similar example is the controversy over use of AVMs. While the elections can be challenged under the law, the challengers want to draw only the political mileage which they won't get by going to the court.
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