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Delicious irony: Days after asking Law Com to make lawyer strikes illegal, BCI chairman Mishra threatens Law Com with protests

Could the BCI chairman have hypothetically hoisted himself by his own Law Commission petard?

BCI chairman Manan Kumar Mishra: If BCI powers curtailed, ‘lawyers will come on roads and confront government’
BCI chairman Manan Kumar Mishra: If BCI powers curtailed, ‘lawyers will come on roads and confront government’

Bar Council of India (BCI) chairman Manan Kumar Mishra has posted an update on his official Facebook page threatening that “lawyers will come on roads” if the Law Commission were to recommend that a new regulator should handle disciplinary complaints against advocates.

Mishra wrote that if government and Law Commission were to reduce the BCI’s role in enforcing discipline at the bar, “the B.C.I. n every lawyer of the country will strongly oppose any such move. The Lawyers will come on roads if needed”.

“N I’m sure that Govt.will not accept any idea to weaken the Bar n I hope that this Govt will not invite any unnecessary confrontation with the Bar. B.C.I.n State Bar Coucils r sufficient enough to deal with the matters relating to Disciplinary actions,strikes boycotts ,abstainance etc.” (sic) added Mishra in his missive

We have reached out to Mishra for comment.

By itself, Mishra’s post is nothing new: he had made a similar threat in a letter to prime minister Narendra Modi in November of last year, duly seasoned with a dollop of sycophancy, while trying to dissuade the government from reducing the role of the BCI in legal regulation.

No, what’s worth raising one’s eyebrows over is that Mishra’s latest Facebook post attempting to influence the Law Commission and government policy with threats of lawyer protests, and possibly strikes, came only days after the Times of India reported that the BCI had submitted a revised version of its Law Commission proposals to reform legal regulation.

One of the apparent tentpole suggestions in the BCI’s new draft was to “statutorily prohibit lawyers from boycotting or abstaining from work in courts”, and punish those who incite others to go on strike.

As you may remember, the BCI’s original proposal was widely panned and promptly withdrawn after we published a leaked draft, in which the BCI essentially proposed giving itself even greater powers over various facets of the profession.

However, the latest BCI draft sent to the Law Commission, which was arrived at after consultation with several retired judges and non-BCI lawyers, seemed rather more robust, according to the 16 March Times of India report by Dhananjay Mahapatra.

According to TOI:

In its detailed suggestions to the Law Commission, which is drafting amendments to the Advocates Act on a reference made to it by the Supreme Court, the regulatory body said the law should be amended to statutorily prohibit lawyers from boycotting or abstaining from work in courts.

“No association of advocates or any member of the association, either individually or collectively, shall boycott or abstain from court work or cause obstruction in any form in court’s functioning during court’s working hours in court premises nor shall individually or collectively give a call for such boycott or abstinence from work during court hours,” the BCI said.

Any lawyer indulging in such activities would be construed to have committed misconduct and will be liable to be debarred from practising in courts for a certain number of years or permanently.

Would Mishra risk retrospective disbarment with his post?

Now, Mishra did not unequivocally call for strikes in his Facebook post, but only said that lawyers would protest “on roads” and have an “unnecessary confrontation” with the government. It’s feasible, though unclear, that Mishra meant that mere peaceful protests would take place outside of court office hours (though in his November letter to Modi, Mishra conflated lawyer protests with paralysis of the courts).

But ven if giving him the benefit of doubt, an obvious irony is that if the BCI and Mishra’s own Law Commission proposal became law, and lawyers were to spontaneously go on strike following the passage of the new and amended Advocates Act, Mishra’s somewhat ambiguous statements could very easily be construed as incitements to go on strike, and risk his permanent debarment (if the new Act were retrospective).

Of course, if Mishra had his way and as is currently the case, any hypothetical disciplinary proceedings against him or advocates inciting strikes would be handled by the BCI and state bar councils themselves, which have had atrocious track records of speedily and transparently hearing disciplinary complaints against advocates.

The government and Law Commission’s apparent thinking, according to Mishra’s Facebook post, would be for an independent body to consider such hypothetical complaints, which doesn’t sound too stupid in the case of strikes, when considering that most are usually called by lawyers who are politically well-connected at local bars and with bar councils.

The jurisprudence of it all?

It is also worth noting that Mishra has a theoretically valid point: just like the government being single-handedly in charge of appointing judges is a dangerous idea, so is the idea that the government should regulate the independent bar (which had also been a plan of the previous government).

Sure, the independent bar was fundamental to the Indian freedom struggle, as detailed on the BCI’s own website.

However, the ideal of an independent bar would carry a lot more force if any of the countless lawyers’ strikes and political activism of the past few years had achieved (or intended to achieve) anything of note, rather than having been manifestations of political turf wars personal grievances.

It would also have helped if the BCI had covered itself in at least some glory, and not presided over a compendium of sorry affairs, such as:

Mishra’s Facebook echo chamber

However, Mishra is clearly not without some popular support.

Mishra’s post, which is headlined “important for every lawyer”, was posted on his official BCI chairmanship Facebook page that has 1,575 followers.

The post saw a respectable 64 likes and 6 shares at the time of publication, with all 5 comments in full support of his argument (see screenshot below), which suggests that if Mishra and the BCI were to call for a strike, they’d have support from at least some of their constituents.

Update: Another, similar but shorter post on Mishra’s personal Facebook page, has attracted 579 likes and 112 comments, though not 100% of those are supportive (one lawyer wrote: “Wrong explanation Sir, u r taking an initiative which is not good for future of law professional.... kindly see medical council where ony medical practitioner is in panel of enquiry.. kindly correct me if I’m wrong.. awaiting ur replay”. And another wrote: “What a mockery? Hypocrisy of highest level. You are the person behind all these things. You have your own personal agenda. You have demeaned lawyers fraternity by claiming that more than 40% of lawyers are fake. Questions are being posed. You have caused more damage to the lawyers community. Morally you shouldn’t have taken any decision since 17 Bar Councils are now without any elected body and why? You know it very well.”).

Mishra’s Facebook followers agree with Mishra. What do you think?
Mishra’s Facebook followers agree with Mishra. What do you think?

Mishra’s Facebook post

Important for Every Lawyer

If the news that Law Commission has recommended for a separate body to deal with the Disciplinary matters against the Lawyers, and if Govt proposes to include Bureaucrats or outsiders in that body,then the B.C.I. n every lawyer of the country will strongly oppose any such move. The Lawyers will come on roads if needed.

Politicians n Honb’le Judges should also think over this issue. B.C.I. n the Lawyers of the Country have great respect for the Judiciary,the Law Commission and the Govt.

B.C.I.has done a lot to curb unjustified calls of Strikes boycotts n abstain acne during last 2-3 years.

But the hostile attitude of some Judges ,a few politicians towards Lawyers n their bodies ,the uncalled for comments r shocking. Lawyers r part of Judicial System,so they should not be treated differently. An independent n bold Bar can only ensure a fair judiciary n strong democracy .

I request the Honb’le Judges ,the sensible politicians n Honb’le Chairman,Law Commission to seriously think over the issue n adopt a practical approach.

N I’m sure that Govt.will not accept any idea to weaken the Bar n I hope that this Govt will not invite any unnecessary confrontation with the Bar. B.C.I.n State Bar Coucils r sufficient enough to deal with the matters relating to Disciplinary actions,strikes boycotts ,abstainance etc.

Manan kr. Mishra,Chairman. B. C. I.

Full disclosure: In 2015 the BCI has sent a legal notice to Legally India for our critical reporting on the AIBE (though not taken any further action after our reply), and more recently 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” in 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.

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