By Nihit Nagpal and Devika Mehra
The Bar Council of India (BCI) Rules is literally a Bible for Indian lawyers. The Rules forms the foundation of litigation practices in India and is a compendium of rules and regulations that a lawyer has to mandatorily follow while practicing in any Court of Law in India. It defines the decorum with which each lawyer should function and the manner in which the Bar of each Court should be administered.
While the BCI Rules are quite comprehensive and inclusive in nature, the BCI has, while using its power under Section 49(1)(c) of the Advocates Act, 1961, on June 25, 2021 issued a notification[1] providing for amendments to the BCI Rules. Section 49(1)(c) states:
The amended provision is reproduced herein below;
“49. General power of the Bar Council of India to make rules.— [(1)] The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe—
(c) the standard of professional conduct and etiquette to be observed by advocates;”
As per the amendment, a lawyer making any statement which is indecent or derogatory, defamatory, motivated, malicious, or mischievous against any Court, judge, State Bar Council, or the BCI, could be suspended or have their license to practice revoked.
Bringing in “Section V – Duties to the Society and Bar”, the amendment states:
“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.”
Further, “Section-VA: — Code of conduct and Disqualification for members of Bar Councils” states:
- No Member of any State Bar Council or of Bar Council of India shall be permitted to publish anything or to make any Statement or Press-Release in Print, Electronic or Social Media against any Resolution or Order of concerned State Bar Council or Bar Council of India or to make/use any derogatory or abusive language/comment/s/ word/s against the Bar Council or its office-bearers or members.
- The Decision of any State Bar Council or Bar Council of India shall not be criticized or attacked by any Member/s of Bar Council in public domain.
- No Advocate or any Member of any State Bar Council or the Bar Council of India shall undermine the dignity or authority of the State Bar Council or Bar Council of India.
- The Violation of this above mentioned clause (i) to (iii) of this code of conduct may amount to other misconduct under Section 35 of Advocates Act, 1961, and /or violation of Section-V and/or V-A shall result in suspension or removal of membership of such member from the Bar Council. The Bar Council of India may declare such Advocates (as mentioned above in Section-V) or any Member of Bar Council to be disqualified from contesting the elections of any Bar Association or Bar Council for any period, depending on the gravity of the misconduct. The State Bar Council/s may refer the matters of misconduct or violation of these Rules by any of its members to Bar Council of India.
- For declaring any Advocate or Member of Bar Council as disqualified from contesting the elections as aforesaid, Bar Council of India shall be required to hold an inquiry by a “3 Member Committee” headed by a Former Chief Justice or a former Judge of any High Court. The Committee shall be constituted by the Bar Council of India and may consist of any member of Bar Council of India or a Member or Office-Bearer of any State Bar Council or any Advocate with a minimum of 25 years of standing at the Bar.
- After any such reference of any case by Bar Council of India, the committee shall issue notice to the concerned Advocate(s)/ Member(s) and give him/her/them opportunity of hearing. Bar Council of India shall take its decision after consideration of the report of the Committee.
- The proceedings for disqualification before the Bar Council of India and/or the Committee/s constituted by it shall follow the norms of natural Justice and it will be deemed to be an order passed under Section 49(1)(a) or 49(1)(ab).
Within 2 days of the issuance of the aforesaid notification, the same led to a cacophonous debate in the legal fraternity. A Kerala Bar Council member, moved the Kerala High Court[2] with a petition challenging the new amendments. The advocate stated that the newly added rules were extremely vague and had a chilling effect on public engagement and participation by Advocates. It was also stated that the new rules blatantly violated decisions of the Supreme Court which have laid down the legally permissible restrictions on free speech and expressions. [3]
In view of the above, the Bar Council of India appeared before the Hon’ble Kerala High Court and submitted that the notification was yet to be approved by the Chief Justice of India, and hence, was not the Law of the Land yet.
However, more backlash came in when lawyers in two Orissa State Bar Council members filed a petition against the said notification before the Orissa High Court and sought intervention from the Court on the ground that the impugned notification imposed restrictions on lawyers, preventing criticism of the Judiciary or Bar councils in the public forum. This was followed by another Petition filed by a Mumbai based lawyer in the Bombay High Court on similar grounds.
Hence, keeping the quantum of opposition coming in against the notification, the Bar Council of India has kept the said notification, for the time being, in abeyance.
While the Petitioner has stated that the new rules not only fail to recognize that criticism, disagreement, dissent, etc. are all protected under Article 19 (1) (a)[4], it also fails to recognize that administration of justice and judges are open to public criticism and public scrutiny and that judges also have their accountability to the society.[5]
The fate of these Petitions and the fate of the lawyers’ freedom of speech, and whether these new rules even violate the freedom of speech, is a subject we shall get more clarity on as time progresses. ,
[1] https://egazette.nic.in/WriteReadData/2021/227925.pdf
[2] Rajesh Vijayan vs Bar Council of India & Ors., [Kerala High Court 25/10/2018]
[3] Shreya Singhal vs Union of India [SC 24/03/2015]
[4] Kedar Nath Singh vs State of Bihar 1962 AIR 955
[5] PN Duda vs P Shiv Shanker 1988 AIR 1208