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Under LawCom pressure, BCI drafts huge Bill to regulate deeper, harder, stronger with dominion over bar associations, youngsters, law firms

As SC pushes for rethinking BCI's role, BCI seizes day to float reforms, increase control over profession
As SC pushes for rethinking BCI's role, BCI seizes day to float reforms, increase control over profession

The Bar Council of India (BCI) has proposed to tighten its control over the legal profession by assuming more than a dozen new functions, statutorily recognising bar associations, formulating new governing rules for law firms and foreign lawyers, and enacting more stringent standards of professional qualification and conduct.

The proposals are contained in a 46-page draft amendment to the Advocates Act 1961, which the BCI has circulated internally (full draft at the bottom of the article).

The focus of the BCI in the draft is to regulate deeper and harder.

It seeks to:

  • recognise and register bar associations in order to oversee every step of their functioning,
  • create separate rolls for law firms and foreign lawyers,
  • maintain real time electronic databases of every practicing lawyer and firm in India,
  • make fresh entrants to the profession go through several mandatory qualification steps before beginning to practice before courts, and
  • increase the quantum of punishment for professional misconduct.

In the process the BCI has created opportunities to increase its revenue in the form of fees to register various legal entities, making pre-enrolment training of lawyers compulsory, a common law school admission test, which the BCI wishes to conduct, and revenue from fines in disciplinary proceedings.

Background

The discussion of the draft follows four recent developments:

- The Supreme Court had asked for an overhaul of the legal profession’s current regulatory mechanisms spearheaded by the Law Commission in its July 2016 judgment in Mahipal Singh Rana Vs State of Uttar Pradesh,

- The BCI has U-turned on its commitment to liberalisation of the legal market to foreign lawyers. Its last reported stand on liberalisation was that it now opposes the process, claiming that various state bar councils had “strong opposition”, as well as opposing proposals that would see a reduced role for the BCI in the process.

- There have been several court challenges to the BCI’s Certificate of Practice Rules, which enable it to verify the antecedents of advocates practicing in India to weed out fake lawyers.

- The conviction of three then-BCI members for corruption in accrediting law schools, as well as a series of questions over its lack of transparency.

BCI chairman Manan Kumar Mishra replied to an email for comment on the draft on Friday, saying: “BCI has constituted a high level committee [to work on the draft amendment] headed by a former Honourable Judge of apex court.

“It consists of several legal luminaries including Honourable Chief Justices and Judges of various High Courts, noted eminent Senior Advocates of Supreme Court and High Courts. BCI will take further steps after receipt of the final proposals of said committee.”

The Law Commission mission

In its judgment in the case of Mahipal Singh Rana the Supreme Court stressed the “failure” and “inaction” on the part of the BCI and the state bar councils, and noted in its order:

we request the Law Commission of India to go into all relevant aspects relating to regulation of legal profession in consultation with all concerned at an early date. We hope the Government of India will consider taking further appropriate steps in the light of report of the Law Commission within six months thereafter

The Law Commission on 22 July asked for comments from the BCI, state bar councils and advocates associations by 21 August in a notice on its website, later extending the deadline to 20 September 2016.

We have reached out to the Law Commission for comment on whether it would seek submissions from other stakeholders too.

Youngsters banned from SC with less than 5+ years, without bar council training

As per the proposed amendment, an advocate with a valid law degree can practice before the Supreme Court only after following these steps, in chronological order:

  1. Complete a three-month training course from a state bar council-affiliated training centre
  2. Pass the All India Bar Examination (AIBE)
  3. Practice, for at least two years, before a district or a sessions judge and other subordinate courts of original jurisdiction
  4. Practice, for at least three years, before a high court and other appellate forums.

In effect, if the steps are consequential, this could result of a delay of six years or more before law graduates would be allowed to practice in the apex court, since the current wait to sit the AIBE is nearly a year.

There is confusion in the draft as to the minimum qualification for enrolment as an advocate because the amendment draft contains contradictory provisions.

It is clear that pre-enrolment training by a bar council is a mandatory qualification to be eligible for enrolment, but whether this training would be provided by the BCI for one year or by a state bar council for three months, is unclear.

The proposal is not new: in 2014, the BCI floated a similar idea, which was never implemented after a major outcry.

Engaging bar associations: Membership compulsory

Under the draft, membership of a bar association would be compulsory for lawyers registered with a state bar council.

The BCI in its draft would, assisted by state bar councils, take on the additional responsibility of recognising, registering and regulating bar associations (except for the Supreme Court Bar Association (SCBA)).

Flowing from that role, a ‘Bar Associations Affairs Committee’ within state bar councils would have three council members and two members who are either former district judges or high court judges or are advocates enrolled with the state bar council for at least 20 years.

The BCI would also regulate bar association elections.

Bar Associations are ad-hoc associations of lawyers without any statutory backing. In Delhi alone, each of the six districts has its own bar association, in addition to the Delhi High Court Bar Association, the Supreme Court Bar Association, the Delhi Bar Association, the Indian National Bar Association and umbrella bar associations.

But in the amendment bar associations are defined to include jurisdiction specific or legal-expertise specific associations, and even associations whose members provide any kind of legal services that are not necessarily linked to court work.

These bar associations do not necessarily have to be registered as societies.  Further, they can be “bar associations of the state” if registered by a state bar council and at least 75 per cent of its members represent various local recognised bar associations of that state. They can also be ‘bar associations of the country’ if registered with the BCI and having members which represent bar associations from at least 20 states of India.

Affirmative action for female bar council members

As we had reported in July, only 3% of state bar council members are women, with 8 out of 12 not having a single female member.

Under the draft, 10 per cent of elected state bar council seats would be reserved for female lawyers (providing they would have to get at least 80% of the votes of whichever male candidate they would displace on the bar council).

Non-litigators, youngsters banned from state bar council elections

Under the draft, lawyers would only be allowed stand for state bar council elections if they can prove that they have appeared in a court, tribunal or other forum at least 30 times every year in three years.

The amendment prescribes the composition of state bar councils more stringently than the existing Act, by providing that not just 50 per cent (as is the current provision) of its members should have been advocates on a state roll for 10 years, but 70 per cent of members must have at least but 20 years of experience.

The draft would also do away with the requirement of having BCI representatives from smaller state bar councils that have memberships of fewer than 5,000 lawyers.

The new disciplinary regime: One judge, other lawyers to be members

The current disciplinary regime overseen by the BCI is widely considered to be all but broken, without any transparency or recourse for clients or others wanting to complain against lawyers.

Under the new disciplinary regime proposed by the BCI, the judiciary would make up 25 per cent of bar council disciplinary committees, with bar council members taking up half of the committee seats, and other advocates enrolled for at least 20 years taking up one quarter of seats.

Disciplinary committees currently have three members on them and would continue to do so under the amendment as well. However, under the new regime, three-quarters of the total number of committees would have one judicial member each. This member would be a former judge of a high court in the case of the BCI and a former district judge in the case of a state bar council.

Enrolment disqualification is more stringent under the proposed amendment: an advocate suspended from the rolls will not be re-enrolled if he or she is disqualified due to his or her conviction for an offence of moral turpitude or has been removed in any way from a public office for corruption or for an offence of moral turpitude.

The BCI has proposed stricter punishment for advocates guilty of professional misconduct. Now, in addition to being reprimanded and suspended or removed from the bar council’s rolls, the charged advocate will also:

  • be ordered to pay a fine of up to Rs one lakh and costs of the disciplinary proceedings
  • pay a fair and reasonable compensation to the person aggrieved by such professional misconduct
  • in the case of lack of cooperation of the charged advocate in the disciplinary proceedings he or she will be made to pay exemplary costs. But if the complaint is found frivolous then the exemplary costs will be imposed on the complainant.

The time given to state bar councils to dispose of a disciplinary proceeding case would be extended from the current one year to two years, after which the case would be transferred to the BCI.

The penalty for illegally practicing before a court is proposed to be increased from the current six months, to five years and a fine of Rs 1 lakh.

On strikes: Punitive provisions to check strikes are proposed to be part of the new Act, including a six-year disqualification from contesting elections of any bar association or bar council.

Dealing with allegations of BCI impropriety

A Special Public Grievance Redressal Committee of the BCI comprising of:

  • a former SC judge or former HC chief justice,
  • two sitting HC judges,
  • one senior advocate, and
  • one BCI member,

would set up an “enquiry into any serious allegation or complaint about corrupt practices or misconduct against any office bearer or member of the Bar Council of India in discharge of his duties as a member of the Council, which is referred to it by the Council in its meeting”.

The report of this special committee can result in an FIR or disciplinary proceedings before the council or rejection of the report itself.

Reports by the committee would be placed before a general body meeting of the BCI, which decides whether to take further actions or to reject the report.

However, no appeal mechanism or timelines are specified in the draft.

Full disclosure: In 2015 the BCI had sent a legal notice to Legally India for our critical reporting on the AIBE (though not taken any further action after our reply).

More recently, BCI chairman Mishra had called Legally India editor Kian Ganz a “[small mosquito]… attempting to spread Dengue”, threatening in an email that BCI “members will take care of you”. His email was a response to our report on the lack of state bar council elections and a Rs 48+ lakh trip planned by BCI members to Washington DC, which was cancelled after our report.

Regulating law firms and foreign lawyers

Law firms, which are not yet defined under the Act, are given a definition in the proposed amendment. They include partnerships, limited liability partnerships (LLPs), private or public limited companies and any other partnerships which are not statutorily registered but are formed, nevertheless, for practicing law.

Law firms would be enrolled in a roll of law firms which would be separate from the roll of individual advocates. Also they will be governed by a set of practice rules made by the BCI, different from the rules of professional conduct existing for individual advocates.

Foreign lawyers would be subject to rules of professional conduct which the BCI would frame specifically for them, separate from rules governing individuals and law firms. These rules would set out practice eligibility conditions for foreign lawyers in India. The only condition which the BCI has spelled out yet is that of “reciprocity”, but it says in the draft that it would formulate more conditions.

The amendment also defines ‘legal service’ as including advising on ‘any legal matter’ and giving any service in the conduct of any proceedings before a judicial or quasi-judicial forum.

The BCI guards Section 30’s Right to Practice from law firms and foreign lawyers by qualifying this right for them with special conditions to be contained in the governing rules which the BCI will frame for the firms and foreign lawyers.

Under the current law only an individual advocate enrolled with a bar council can practice before courts and tribunals in India, but the proposed amendment extends this right to law firms and foreign lawyers as well, subject to practice conditions under rules framed by the BCI.

When the BCI pulled out of the government’s liberalisation talks last month, in its letter signed by secretary Srimanto Sen, the regulator called the Indian Corporate Counsel Association (ICCA) “some unheard of organisation”.

In that letter the BCI was referring to ICCA’s draft of the Foreign Legal Practitioner’s (Regulation of practice) Bill 2016, and ICCA’s comments on the BCI’s Draft Rules for Registration and Regulation of Foreign Lawyers in India 2016, which were forwarded to the BCI by the law ministry.

The lawyer verification drive

The BCI has included in the amendment the power to make the rules that govern its lawyer verification drive, which has been subject to several challenges in court so far and is being heard by the Supreme Court.

It proposed to bind the state bar councils to maintain an electronic database of all the advocates on its rolls, updated for changes in real time, and accessible at all times as public information on state bar councils’ websites. The BCI currently does not comply with the Right to Information Act 2000 and does not update its own website with its meeting minutes.

As we reported, the BCI’s verification drive has currently stalled the bar council elections in at least 11 out of 18 state bar councils, in some cases for nearly two years, with the result that at least 11 BCI members including Mishra are occupying their posts without having been validly elected anymore, while their state bar councils are functioning with skeleton members and staff. The Supreme Court, on 4 October, told the BCI that the state bar councils should hold elections now even if the verification drive is not complete.

The BCI also proposes to charge a fee to advocates who wish to get their name transferred from the rolls of one state bar council to that of another. This service is currently available for free. It has not yet prescribed the exact fee in the proposed amendment.

The proposed amendment gives discretion to the state bar councils to fix advocates’ enrolment fees, whereas under the current law it is fixed at Rs 600 for state bar councils, and 30 per cent of it, i.e. Rs 200 goes to the BCI. The BCI’s cut of 30 per cent remains the same under the proposed amendment as well.

Legal Education

The BCI proposes to increase the size of the Legal Education Committee (LEC) of the BCI from 10 to 15 members.

Of these 15, five would continue to be council members, as is the case at present. But the remaining members would not just be any council-outsiders but specifically chosen from among: sitting chief justices of high courts, sitting judges of high courts, the chairman of the Law Commission of India, the Attorney General of India, the Solicitor General of India, the chairman of the University Grants Commission (UGC), the union law secretary, three vice chancellors of national law universities (NLU), two vice chancellors or deans of law institutes other than the NLUs, senior advocates of “national repute”, two members of state bar councils co-opted by the BCI in such a way that each state bar council is given representation by rotation.

A Supreme Court judge would be the chairman of the LEC.

It also proposes to establish a directorate of legal education, under its direct control, to oversee continuing legal education (CLE).

Other roles assumed

The BCI will seek grants-in-aid from the government as well as non-government organisations to provide legal aid to various classes of persons in need of free legal services. The regulator intends to make it binding on union and state governments to provide Rs 20 lakh to the BCI annually for legal aid.

The BCI will also form an internal committee called the ‘Legal Services Committee’ which will have five BCI members and two members who are not BCI members but are either from the higher judiciary or are advocates enrolled with the bar for at least 20 years.

On the Common Law Admission Test: While the BCI has already filed an affidavit in the Supreme Court submitting that the CLAT should be replaced by a Common Entrance Test (CET) for law to be conducted by the BCI, it proposes to make this the statutory position through the draft amendment.

BCI draft amendments to Advocates Act (PDF)

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