A Healthy and Bona Fide Critique of the New BCI Notification
Note: This was written prior to the BCI putting the rules in abeyance. Since then, a review panel is supposed to be constituted, but the details of the panel remain unknown.
In an unprecedented and unwarranted attack on the constitutionally guaranteed right of free speech, the Bar Council of India notified new rules on 25th June stating the following:
i) 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.
(ii) 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.
(iii) 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 constitutional validity of this notification has been challenged before the Karnataka High Court, contending that the notification is violative of articles 14, 19(1)(a), and 21 of the Constitution of India. It is contended that these rules are vague, and the statutory procedure for notifying the rules has not been fulfilled. The Himachal Pradesh HC has already disposed off another petition as withdrawn that challenged the validity of the rules. There is another plea before the Supreme Court which has also challenged the validity of the rules.
This is not the first attempt by a governing body of a profession to stifle free speech. Earlier in February, the Institute of Chartered Accountants of India also warned all students and members through an ‘advisory’ published on the website that some of their social media posts were ‘highly objectionable which have the potential to create social and communal disharmony, threatening peace, tranquillity and may disrupt the security of the nation, public order and friendly relations with other nations.’ It further warned them that such posts shall be deemed to be ‘other misconduct’ under the Chartered Accountants Act,1949 which allows the ICAI to reprimand, cancel registration or impose a fine up to 1 lakh if they cause disrepute to the accountancy profession or the regulator. This was a clear attempt to control the free speech of over 8 lakh members when it was legally dubious if ICAI could take such an action under the Act.
The CJI Consent Brouhaha:
As a part of its role as a regulator, the Bar Council of India is empowered to make rules under Section 49 of the Advocates Act,1961. The amendment comes under the ambit of section 49(1)(c), and thus requires the consent of the Chief Justice of India. The Gazette Notification remained silent on whether the said consent was obtained or not. Though it was not originally clarified, the BCI informed the Karnataka High Court on 30th June that the CJI was yet to give consent to the Rules. If the said statutory mandate was not followed, the notification is liable to be struck down.
Attack on Free Speech:
This is a brazenly illegal attempt to interfere with the fundamental right of free speech, thought and expression which is guaranteed under Article 19(1)(a) of the Constitution of India. In the case of Romesh Thappar v. State of Madras, the Supreme Court recognised that freedom of speech was the foundation of a democratic system. In Sakal Papers (P) Ltd. & Ors. v. Union of India, a Constitution Bench of the Supreme Court held that freedom of speech was a sine qua non in a democratic system, and ought to be protected. In his concurring judgment Bennett Coleman & Co. & Ors. v. Union of India & Ors., Justice Beg held that the freedom of speech is the ‘Ark of the Covenant of Democracy’ because criticism was a key to the functioning of any public institution in a democracy. In S. Khushboo v. Kanniamal & Anr., the Supreme Court held that while the freedom of speech and expression was not absolute, it ought to be protected in order to tolerate even unpopular opinions. This right requires the free flow of opinions and ideas essential to sustain the collective life of the citizenry. The Supreme Court also held that a citizens’ right to freedom of speech using the internet is protected by the constitution. This was built on the jurisprudence laid down in Shreya Singhal v. Union of India which held that mere advocacy or discussion of unpopular opinions do not invite the restrictions posed via article19(2) insofar as they do not reach the levels of incitement.
The Vagueness of the Notification:
Jurisprudence dictates that a law is void for vagueness if the prohibitions that it lays down are not well defined. Laws that are vague tend to be abused and infringe on rights. The Supreme Court in Kartar Singh’s case had held that the law should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited and the innocent may not get trapped for not providing fair warning. A person of ordinary prudence should be able to decide what is prohibited, and what is not. This is buttressed by various decisions of the Indian Supreme Court, including those in the State of Madhya Pradesh v. Baldeo Prasad, and K.A. Abbas v. Union of India which have upheld the said position of law.
In the Notification passed by the Bar Council, there are two phrases which are vague and problematic- the first is the behaviour of an advocate as a gentleman/ gentle lady, and the proviso to section VA (iv) of the Advocates Act, 1961which is disguised as a ‘note’ protects healthy and bona fide criticisms.
The phrase ‘behaviour becoming of a gentleman/ gentle lady’ is strife with casual sexism. But this is not the first time that BCI, with Mishra at its helm, has been sexist. In the past, it has organised a protest for the MenToo Movement in one of the darkest moments in the judiciary when Ranjan Gogoi was accused of sexual harassment. A brief statementissued by the BCI Chairman had stated: "The common lawyers who have trust in the institution should support the men too movement and should assemble at India Gate to show their solidarity with the C.J.I. Mr. Ranjan Gogoi." This statement is a tedious exercise in blatant victim-blaming, and victim shaming. But this is not the only instance. In an interview with a news channel, when the strike by lawyers in Jammu and Kashmir prevented the police from filing the charge sheet, he defended the lawyers and went on to question why the police were not being supported by the bar.
The politicisation of the BCI and The Independence of the Bar:
For the longest of times, Mishra has targeted the SCBA and its former president, Mr Dushyant Dave for being too political. However, he has never shied away from being political himself. His rise to fame was through a BCI event where he claimed PM Modi was ‘Mahatma Reborn’ at a function in 2019. Manan Kumar Mishra’s letter on 3rd October 2016 to the PM was a telling sign of the times to come. In the letter, he called the PM “My Lord!” eight times, told him “(he was) our guardian, our guide …(who was) most efficient and able leader of the world” and called him “the most able and efficient leadership of our beloved Narendra Modiji”. He also assured the PM that “Bar Council of India is your Institution”. He has clearly fulfilled his promise.
Any legal commentator and lawyer worth their salt recognises that the independence of the bar is essential to rule of law, the exercise of fundamental rights, and also the independence of the bench (since the bar is the mother of the bench). Lord Denning had once said, “As an advocate, he (a barrister) is a minister of justice equally with the judge.” Every lawyer has a solemn duty to speak up against all wrongs, not tolerate injustice, and to stand up for civil liberties. India boasts of a rich judicial history of the bar standing up for its own independence, the independence of the judiciary and the citizens during the freedom movement and the emergency both inside the courts, and outside the court as well. This is a brazen attempt to throttle the independence of the bar and to silence its members. The regulatory and the normative powers of the BCI to decide on the rights and duties of legal professionals are substantial. This notification is an uncontrolled and illegitimate decision that shall limit and violate the rights and freedoms of lawyers, and insulate the BCI and the judges from all criticism from lawyers, who are uniquely placed to criticise them as they are the other wheel that keeps the chariot of justice running. Though the proviso to section VA (iv) of Advocate Act, 1961, which is disguised as a ‘note’ protects healthy and bona fide criticisms, history tells us that there will be little protection, if any, meted out on these grounds. The bar these days is more polarised than ever. But it must come together if it wants to protect the freedoms that we cherish, and unanimously stand up against this notification.
While lawyers would think twice, and rightly so lest they face disciplinary action and risk losing their license before attacking this decision, I am in a unique situation where I can speak my mind and not lose my license, since I am yet to obtain one having just finished law school earlier this month. Justice Holmes in his famous dissent in Abrams v. USA said:
"But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution."
This is undoubtedly also the theory of the Indian Constitution. This notification is the proverbial shot fired across the bow of the critics of the Bar Council, and the judges as if warning them to stay quiet and pander to the often foolish decisions that are taken by the BCI (such as not recognising one year LLM from a foreign university). While Manan Kumar Mishra is otherwise an inconsequential man, he derives a semblance of authority from his office which is created by a statute, and his utterances are backed by the letterhead and insignia of the BCI. This masquerades them as if they were on behalf of the entire legal fraternity. Nothing could be further away from the truth. It would be wise to reiterate what Oliver Cromwell told the Rump Parliament in 1653, and which was also used by Leo Amery in his attack on Prime Minister Neville Chamberlain to Mishra and this patently illegal notification, ‘You have sat too long here for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go!’