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We fact checked BCI Mishra’s call for a Friday strike: Many untruths, some misreps, and a few important true things

The Law Commission reform proposals for the legal profession are not perfect, but going on strike on Friday will prove that they’re necessary...

If you are a lawyer considering to strike tomorrow, it’s worth knowing more facts about the Law Commission’s proposals (rather than just the official MK Mishra version)
If you are a lawyer considering to strike tomorrow, it’s worth knowing more facts about the Law Commission’s proposals (rather than just the official MK Mishra version)

The Bar Council of India (BCI) chairman Manan Kumar Mishra has published a lengthy and detailed call for a strike on the BCI’s website earlier today.

However, Mishra makes several claims about the Law Commission’s (LC) report that don’t quite stack up, distort the nature of the LC amendments, the obvious intention of those amendments, as well as Mishra and the BCI’s own role in the draft.

In a nutshell, the Law Commission draft Advocates Act amendment bill is far from great, but it does have some sensible suggestions for:

  • taking some of the politics out of the state bar councils and the BCI,
  • reducing the court days lost due to advocates’ strikes,
  • tightening the disciplinary framework for lawyers guilty of misconduct, and
  • generally nudging the Advocates Act a little bit more into the 21st century.

That said, Mishra has also identified several areas where the Law Commission and government really have to work with the community of lawyers to improve the current proposals.

And a genuine debate should be had about whether the courts should have any involvement in the regulation of the bar, the value of having the BCI dominated by politics and elections, and what role strikes should play, if any, in the legal profession.

But a strike is ultimately short-sighted. Instead, the profession could be trying to prove that it has matured sufficiently for it to discuss reform of the profession and improving the draft, without going on strike and attacking the very justice delivery system that they are sworn to uphold.

Whichever way you spin it, the optics are bad, and it just looks like lawyers using brute force rather than winning arguments.

All block quotes from Mishra’s open letter below (emphasis added, ours), with our fact checks following each quoted passage.

Earnest Appeal to the entire Legal Fraternity Dear Brothers, Sisters & Friends,

Through the media and newspapers, by now, you might have gone through the Advocates (Amendment) Bill, 2017 proposed by the Law Commission of India to the Government. A bare perusal of the Bill establishes that the Law Commission has admitted to destroy the independence and autonomy of Indian Bar completely.

Not true: No, we’ve read the entire draft of the Act, and the Law Commission does not admit anywhere that it wants to destroy the ‘independence’ of the bar.

The word “Misconduct” had never been defined by the Bar Council of India or by the Advocates Act, 1961 and misconduct was defined only in the Rules of Bar Council of India, but the Bill proposes to define misconduct in such a provocative way that it would be now very difficult and risky to accept the brief of any client for any lawyer.

Partly true: Although hyperbolic, this is arguably accurate, in part. While the vast majority of the LC’s definition of misconduct covers things that any reasonable person would agree was misconduct ("unlawful behaviour”, “criminal breach of trust”, “non-observance of the standard of professional conduct” (see below)), some of the wording used is a little vague.

For example, the LC includes "not working diligently” and “neglect" in the definition of misconduct. That seems like a bad idea and could actually be misused by clients, each of whom may have a different definition of “diligent” or even “neglect”.

Negligence, not showing due diligence, misbehavior, dishonourable conduct (towards the client or towards the court or anybody) amounts to misconduct under the definition of Law Commission of India.

True: Negligence is not explicitly mentioned by the law commission (although ‘neglect’, which has a different meaning in ordinary English is). It also does not use “due diligence” but only “working diligently”, which is problematic as pointed out above. The Commission also includes “dishonourable conduct”, without qualification, so the BCI is right in that it could be directed at anybody.

The BCI is correct that the LC’s definition of misconduct is partly dangerous because it is so wide and undefined. What is or what is not “honourable” behaviour is too vague to be included in a definition of misconduct, and the LC and government should consider revising this.

‘Misconduct’ as per Law Commission’s definition provided under the proposed Bill includes-an act of an advocate whose conduct is found to be in breach of or non-observance of the standard of professional conduct or etiquette required to be observed by the advocate; or forbidden act; or an unlawful behaviour; or disgraceful and dishonourable conduct; or neglect; or not working diligently and criminal breach of trust; or any of his conduct incurring disqualification under section 24A;”

In Section-24A of the proposed Advocates (Amendment) Bill, 2017, the proviso provided in the present Advocates Act, 1961 that the disqualification for enrolment shall cease to have effect after a period of two years has been totally done away with.

True: The LC does replace section 24A, but does not retain the 1993 amendment act’s qualification in the explanation that “provided that the disqualification for enrolment as aforesaid shall cease to have effect after a period of two years has elapsed since his release or dismissal or, as the case may be, removal”.

However, why should there be a blanket two-year upper limit for disqualification? Are there not serious cases of repeated and malicious professional misconduct that would warrant a longer disqualification than just two years?

In Section-26A i.e. Under power to remove name/s of advocates from State rolls now includes an advocate who abstain from court works (due to any reason). This seeks to usurp the basic democratic right of protest against any form of injustice and the lawyers will now not be even able to raise their voice against injustice.

Mostly untrue: Yes, the LC states that a state bar council “may on receipt of information or request, remove from the State roll, the name of any advocate... who is found guilty of serious misconduct or abstaining from courts work or causing obstruction in court’s functioning” (or upon that lawyer’s death, request, or disqualification).

The LC has also included a section 35A amendment “prohibition on the boycotts or abstention from courts’ work .– No association of advocates or any member of the association or any advocate, either individually or collectively, shall, give a call for boycott or abstinence from courts’ work or boycott or abstain from courts’ work or cause obstruction in any form in court’s functioning or in court premises.”.

(It must be noted that even the BCI itself in its draft proposal submitted to the LC, had suggested that each “association of advocates” would be banned from striking - see excerpt below).

BCI proposal to ban strikes, which LC had followed in part
BCI proposal to ban strikes, which LC had followed in part

A common-sense reading makes it obvious that this amendment is only intended to apply to strikes by lawyers, when read together with 35A, which explicitly mentions in the same breath “serious misconduct” and “causing obstruction in court’s functioning”.

It is therefore disingenuous for the BCI to suggest that abstaining from “court works (due to any reason)”, would lead to being struck off the rolls.

It would be highly unreasonable to read Section 26A as allowing advocates to be struck off for not attending court for lawful reasons such as sickness, family emergencies, taking holidays, not feeling like coming in that day, etc.

That said, Section 26A in the LC’s draft amendment must be much better drafted, but if you agree that the BCI should regulate unlawful strikes, then it’s a matter of housekeeping that a state bar council should be able to remove names from its rolls who violate the “abstaining from courts work” rule.

Law Commission has further proposed to impose a fine which may extend of rupees three lakhs and the cost of proceedings; and also award compensation of such an amount, subject to a maximum of rupees five lakhs as it may deem fit, payable to the person aggrieved by the misconduct of the advocate;

False by omission: Yes, the LC’s amendment gives a state bar council powers to impose financial penalties on advocates for misconduct. But crucially, it only followed the BCI’s own draft recommendations on that count, that proposed giving state bar councils powers to:

BCI recommends fines, LC accepts fines, BCI calls for protests against fines
BCI recommends fines, LC accepts fines, BCI calls for protests against fines

Blaming the LC for a suggestion that was made by the BCI itself (and not mentioning that the suggestion came from the BCI itself), is a distortion of the truth at best.

For any kind of protest or strike or abstentions (or default) the advocates would be liable to pay compensation to the litigants even though the client may not have paid a single farthing to the lawyer as fee (as per the said Bill). The non-payment of fees either in full or part by a person to his advocate shall not be a defence available for the advocate against whom claim for compensation due to alleged misconduct or participation in strike or otherwise is made by the client. The proposed provision as per the Law Commission recommended Advocates (Amendment) Bill, 2017 reads as follows:-

“Prohibition on the boycotts or abstention from courts’ work.– No association of advocates or any member of the association or any advocate, either individually or collectively, shall, give a call for boycott or abstinence from courts’ work or boycott or abstain from courts’ work or cause obstruction in any form in court’s functioning or in court premises.”.

Correct but distorted analysis: Yes, if an advocate strikes or otherwise indulges in misconduct, the LC proposed that non-payment of fees, either partial or in full, is no defence.

But the BCI’s colouring of this amendment to allow clients who don’t pay “a single farthing” in fees (implicating clients who dodge paying bills) is disingenuous: clients usually pay lawyers only after services have been billed for and rendered.

Hypothetically, the BCI is proposing that it should be a defence to misconduct charges if a client signs a vakalatnama with an advocate, and that advocate begins representing that client in court (or even finishes an entire matter) but has not yet billed for services.

The BCI’s alternative would be that a client, whose crooked lawyer has committed grave misconduct (like colluding with the opposing side to get a client’s good case dismissed, or not turning up for any court hearings, etc), must first pay that crooked lawyer before a complaint can be made (and a lawyer could somehow avoid misconduct proceedings by never even raising a bill).

A duty to a lawyer’s client should exist as soon as a vakalatnama is signed, irrespective of whether fees have already been paid. But no one has ever suggested that a lawyer is committing misconduct if they decline to continue acting for a client who has repeatedly refused to pay their bills.

The institutions of Advocates (like State Bar Council or Bar Council of India) are proposed to the made as puppets at the hands of the High Courts and Supreme Court of India.

Majority of nominees of the High Courts would be the Members of the State Bar Council out of whom a sizable number of the Members would be non-lawyers (like so-called eminent persons from the field of Commerce, Accountancy, Medical Science, Social Science etc.).

Part false, part true but hyperbolic: Yes, high courts would have the power to nominate half of non-elected bar council members (but half is not a majority, contrary to the BCI’s statement; also, whether this would make a bar council a “puppet” of the courts anymore, is highly debatable, particularly since the courts ultimately have jurisdiction over bar councils anyway).

Yes, the Law Commission has also proposed including non-lawyers at the state bar councils and BCI.

However, at state bar council level, only 16.6% of total members would be non-lawyers. The LC proposes that state bar councils be made up of:

  • Half of state bar council members would still be elected from advocates with more than 10 years of experience.
  • up to one-third of state bar council members would be senior advocates with more than 25 years of experience nominated by the high court (or in case of “non-availability” of senior advcoates, the high court can nominate other advocates with 25_ years, or retired high court or district court judges).
  • only the remaining one-sixth of a state bar council (or 16.6%), would be nominated by the high court from a list of “eminent persons of the ability, integrity and standing having professional experience of not less than twenty-five years in accoutnancy, commerce, medical science, management, public affairs or social science matters, to be provided by the State Bar Council”.

At the BCI level, the LC’s composition reforms would bemore substantive: 5 BCI members will be nominated from state bar councils by rotation, while 6 “eminent persons” who are professionals other than lawyers, would be nominated by the Supreme Court.

If including the BCI’s ex-officio members such as attorney general and solicitor general, then lawyers would be in a slim majority in the BCI. But in fairness, unless the AG and SG suddenly started turning up to BCI meetings, then lawyers would not be in a majority at the BCI.

On the other hand, this might actually encourage them to turn up.

This is likely the amendment that is of the biggest concern to the BCI, as it would mean a reduction of power at the BCI by chairmen such as Manan Kumar Mishra, who has presided at the BCI helm for nearly six years now, with only minor interruptions and whose elected term has actually long expired.

Similarly, the Bar Council of India, as per this Bill, would be no more the representative body of the Advocates of the country, rather majority of Members of the highest regulatory body of the profession and of legal education would be from the field of Commerce, Accountancy, Medical Science, Social Science etc. These members of the Bar Council of India are proposed to be nominated by the Supreme Court of India on the recommendation of a Supreme Court Judge, Chairperson of appellate authority under Chartered Accountants Act and the Central Vigilance Commissioner.

Hyperbolic: The BCI would and could still, by definition, be the representative member of advocates as before, albeit having fewer lawyers on it.

However, the BCI fails to mention that its duty is not just representative but also regulatory, which is exactly what the LC was tasked with improving after the Supreme Court found the BCI’s regulation of the profession severely wanting.

The Law Commission of India by doing so, has attempted to demolish the concept of democracy, elections and the independence and autonomy of the institution of Lawyers altogether.

Hyperbolic: It is highly unlikely that the LC attempted to “demolish” all those things in the legal profession.

A fair reading of the LC proposals, would be that the LC is looking to improve regulation of the profession, as it had been tasked to by the Supreme Court.

In the light of the judgment of Supreme Court of India in Mahipal Singh Rana’s case, the Bar Council of India had also made suggestions. For consideration of the matter a very high level committee was constituted by Bar Council of India, which was headed by Hon’ble Mr. Justice Shivraj V. Patil, Former Judge, Supreme Court of India and it includes some sitting and former Judges and more than 19 senior and young advocates of the country. The former and present Presidents of Supreme Court Bar Association are the Members of the Committee. The recommendations made by the Advisory Committee was duly considered by the Bar Council of India and after few modifications, the same was sent to the authorities, including the Government. However, the Law Commission has not even looked into any of the suggestions of Bar Council of India.

False: The suggestion that the LC has “not even looked” into the BCI’s draft, is literally obviously and hilariously false: the BCI’s suggestions are annexed to the LC’s report.

On top of that, several parts of the BCI’s draft and the LC’s report are nearly identical or clearly based on each other, such as:

  • the Rs 3 lakh - Rs 5 lakh fine amounts for misconduct,
  • the section prohibiting lawyer associations calling for strikes,
  • the BCI’s suggestion to regulate foreign law firms,
  • and many other sections (read the full proposals below).

The Bar Council of India has resolved to oppose the aforementioned Bill strongly and as a token of our protest, the Council has given a call to all the lawyers of the country to abstain from the work on 31st March, 2017.

I humbly request all the Hon’ble Senior and Young Members of the Legal Fraternity to consider the seriousness of the matter and the danger and damage, which is likely to be caused to the Indian Legal Profession due to the aforesaid Bill.

The Bill obviously proposes to handover the regulation of the Legal Profession in the hands of the persons having no concern with the Legal Education and in the control of Judges.

False hyperbole: The BCI and state bar councils would still have considerable autonomy and independence for its own functioning under the LC’s draft.

Whether judges and non-lawyers are “having no concern” in regulating the legal profession is a matter for debate, rather than unequivocal condemnation, because the present system of elected state bar councils and the BCI has so clearly failed, as has been held by the Supreme Court in the Mahipal Singh Rana case.

No prudent advocate will accept this. As member of the Bar, you are the leaders of the nation and your opinion, your reaction carries much weight & value and the entire legal fraternity needs to support each other in this time of crisis.

False hyperbole: It is very possible for a prudent advocate to be in favour of the LC reforms’ spirit (and perhaps even letter).

The “crisis” has actually been precipitated by the BCI itself, after bar associations protested against Mishra and the BCI’s own draft that it submitted to the LC. For the BCI to claim that the LC’s plans are are a crisis means

Finally, for the BCI to claim that the only way for lawyers to register their protest is to go on strike, is hugely problematic: strikes are legally questionable, having been all but ruled as unlawful by the Supreme Court.

The BCI is calling strikes over the Law Commission’s having followed a democratic and transparent process in drafting recommendations, and ultimately against parliament that has to take a call whether or not to accept of reject the LC’s recommendations.

The BCI’s real role as a representative of the profession should have been to engage more meaningfully with the LC (not waiting until 10 March to produce its final report and still asking for more time, after many months of delays).

And although the BCI (below) is calling on lawyers to make submissions to politicians after the strike, its role, if it is unhappy with the proposals, should not be to show off its capacity for causing unrest, increasing pendency and upsetting the legal system.

The BCI should bloody act like lawyers are supposed to, and make rational arguments against the proposals in a public forum to convince with facts why the Law Commission got it wrong. Anything else, such as going on a strike against the democratic process, is just proving the Law Commission and Supreme Court right, that the BCI in its current form is not fit to regulate the profession and is little more than a bar association vested with statutory powers.

The Bar Council of India vide its emergent meeting of the General Council held on 26.03.2017 at 01.00 pm at the premises of the Bar Council of India has resolved the following:-

1. The Council gives a call and request to all the Bar Councils, Bar Associations to abstain from court’s work on 31.3.2017, this will be in the token of protest of the lawyers against the proposed amendment Bill, 2017 of Law Commission of India.

2. The Council further resolves to convene a meeting of all the Members of State Bar Councils/representatives, members of ad-hoc Committee of Special Committees, the President/Secretaries of all the High Court Bar Associations and the representatives of Bar Associations of Delhi and NCR on 8th April, 2017 in the premises of Bar Council of India to decide the date of demonstration as well as the future course of action to oppose the Bill.

3. It is further resolved to request to the members of the State Bar Councils, the representatives of Bar Associations of the country to meet their respective-representatives (Member of Parliament) in the 2nd week of April, 2017 and to give a memorandum to concerned Member of Parliament with a request to reject the proposed amendment Bill, 2017.

4. The Council further resolves to prepare a detailed memorandum and to give it to the Hon’ble the President of India, Hon’ble the Prime Minister of India, Hon’ble Union Minister for Finance, Hon’ble Union Minister of Law & Justice and all other Hon’ble the Union Ministers.

Obliged!

(Manan Kumar Mishra)

Chairman Bar Council of India

The Law Commission and BCI reform proposals and both are surprisingly similar (PDF)

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