Advocates Bill — BCI CHAIRMAN MANAN KUMAR MISHRA APPEALS FOR STRIKE ON 31st March

On Mar 29, 2017

Date: 29.03.2017

Earnest Appeal to the entire Legal Fraternity to strike/abstain from Court work on 31.03.2017 to oppose the Advocates (Amendment) Bill, 2017 proposed by the Law Commission of India to the Government

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. 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. 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.

‘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.

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.

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;

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.”.

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.).

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.

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.

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.

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. 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.

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