Authored By: Md Tasnimul Hassan
The issue being discussed herein comes up after the scrimmage between the Supreme Court Bar Association (“SCBA”) and the Bar Council of India (“BCI”), as the former criticized the statement of one honorable judge escalating tensions within the association, while the latter stood up against an internal resolution passed by the former. After the Constitution of India was enforced, the Inter-University Board passed a resolution emphasizing the need of All India Bar, among many others. On April 12, 1951, Syed Mohammed Ahmad Kazmi, a Member of Parliament, proposed a bill to amend the Indian Bar Councils Act, which was eventually sponsored by the Government of India. Finally, BCI was established under the Advocates Act, 1961 (“Act”) whose enactment was result of reforms within the legal profession, led by the need of unification and formulation of All India Bar. Further, BCI Rules were made under the Act for better administration of the Council. Thus, the two authorities have been at liberty to administer its own respective causes, but the recent series of events vigorously disturbed the power dynamics between the two, which is otherwise mistakenly considered to be at equilibrium.
Analyzing the Problem
The Constitution of India establishes an integrated and independent judicial system, for which various provisions are enshrined therein to ensure its independence, for instance, security of tenure and fixed service conditions for the judges, prohibition on discussion on the conduct of judges in the legislatures, separation of the judiciary from the executive, and so on. However, all these provisions seem mere hypothesis, when the preceding Chief Justice of India was nominated to the Parliament and a sitting judge of the apex court called out the leader of the house of people a “versatile genius” and an “internationally acclaimed visionary”.
The maxim Nemo debet esse judex in propria causa means that no man shall be a judge in his own cause, and it shall also give us the idea that one cannot expect a judge to acclaim any of the parties involved in the litigation, in this case, the Union of India. Thus, the “genius” remarks received sharp criticism from the SCBA, which in its resolution, pointed out that such statements reflect poorly upon the independence of judiciary, which may raise justifiable doubts in the minds of the litigants about the outcome. Not only SCBA, but the Bar Association of India also expressed discontent and claimed that such act of appraisal served to dilute the “perception of impartiality and independence” and also diminished the confidence of the public. Also, the Bombay Bar Association condemned the “obsequious” remarks about the prime minister, as they were “improper” and “unnecessary”.
The Parties to the Conflict
The BCI is a statutory body which regulates and represents the Indian Bar. Section 4 of the Act provides that there shall be a Bar Council consisting of the Attorney General of India and the Solicitor General of India as ex-officio members, and one member elected by each State Bar Council from amongst its members. The Act mandates the creation of a Disciplinary Committee (under section 9), a Legal Education Committee (under section 9A), and an Executive Committee (under section 10), among many others. The statutory functions under Section 7 of the Act covers the Council’s mandates i.e., to lay down standards of professional conduct and etiquette for advocates; to safeguard the rights, privileges and interests of advocates; to promote and support law reform; to promote legal education and to lay down standards of legal education; to organize legal aid for the poor; among many others.
The SCBA came into existence in 1951 when the body was registered under the Societies Registration Act of 1860, now being the most powerful lawyers’ association in the country. Although, the Act vests with the BCI by virtue of section 7(1) the power “(g) to exercise general supervision and control over State Bar Councils”, the only provision in the SCBA Rules giving the Council slight upper hand, can be found in rule 35 which states that the Association may by a resolution expel or suspend for a specific period the Member complained against, if in its opinion he is guilty of a dishonorable conduct and a copy of the resolution shall, if the General Meeting so decides, be forwarded to the Secretary of the Bar Council where such Member may be enrolled. A bare reading shows that sections 6 and 7 of the Act, do not confer upon any Bar Council a supervisory power over the matters of a Bar Association.
Flaring up Power Dynamics
Later, the internal equation flared up within the SCBA when its Secretary invoked rule 22 of the SCBA Rules and called for an extraordinary meeting, with the agenda to remove the association President from his post as well as to suspend his primary membership, and to ultimately withdraw his “unauthorized” resolution criticizing the genius remarks. While some pointed out that the “genius” threatened to split the SCBA, in an ordinarily unprecedented move, the Executive Committee of the SCBA suspended the Secretary by a majority, and an additional committee was constituted to look into the allegations made out against him. This state of internal affairs was not enough and therefore, an external domination of power was attempted, aggressor being the BCI.
Thereafter, the BCI intervened and passed a resolution staying and declaring the one suspending the SCBA Secretary as “illegal, cavalier, undemocratic and autocratic” in nature and “vindictive on the face of it”. Calling it out an “extreme case”, the BCI took notice of this issue as it was having a “far-reaching effect” upon the workings of Bar Associations of the country, without even thinking it “proper to enter into the merits of the matter or to interfere into the affairs” of the SCBA. The Council cited its safeguarding duties under section 7 of the Act and went “at a loss” to understand as to how the Executive Committee removed or suspended the Secretary, and thus decided to restore the Secretary to his post.
Somehow, the BCI in its resolution did not thought it fit for the present to treat the action of the Executive Committee of SCBA as a misconduct under Section 35 or 36 of the Act, thus the SCBA was closely saved from falling prey to probable authoritarianism? However, no provision under the Act allows the BCI to exercise jurisdiction over a bar association registered under the Societies Registration Act, which is eventually a topic of discrete regulation. Therefore, in reply to the said resolution passed by the BCI, SCBA cited invasion upon its rights to manage the internal affairs, and thus, rejected and declared the resolution as illegal and deemed proper for it to be returned “without admitting and dealing with its contents”. Later, terming SCBA’s letter as “improper and indecent”, BCI issued show cause notice to them as to why disciplinary action under section 35 or 36 of the Act shall not be taken against those office bearers?
Such unnecessary interventions may bring to the public domain the political motives of the otherwise esteemed council and put at risk the prestigious image of the bar. If the council focuses on interfering in such matters, it may lose its aim of functioning. Probably this was the reason when a division bench of the Madhya Pradesh High Court held in Bar Association Lahar v. State Bar Council of Madhya Pradesh that, State Bar Council cannot interfere in the affairs of the Bar Associations.
In India, there has always been clashes between two similar bodies based upon particular interests, though mostly political. However, the recent actions attempting to draw a bridge between the legislature and the executive, will ultimately pass off through it the concept of separation of power and shatter into pieces the idea of an independent judiciary. During the nationwide lockdown, the only remedy available to the litigants is hope, which keeps on fading with time, and thus, the BCI should intervene to figure out necessary infrastructure, making the system virtual to protect the interests of the litigants, as well as the advocates, with the holy motive of securing access to justice, rather than interfering in the matters of a bar association.
Financially, the unevenly distributed system of advocacy which values some and is harsh for others, has exposed the latter to vulnerability due to the limited court functioning, making several advocates unable to sustain themselves, and apparently they are hopeful of some measures to be taken by the BCI at least as the duty casted upon the council under section 7(1)(c) of the Act, i.e., “to safeguard the rights, privileges and interests of advocates”. Thus, the valuable time of this prestigious body entrusted with protecting the noble legal profession across the country, shall not be wasted upon at interventions into internal matters of a Bar Association, when many associations and legal luminaries across the country are struggling to find any counter of the losses incurred due to CoVid-19.