Over the past few weeks, there has been a lot of criticism about the functioning of the judiciary. The Supreme Court’s inaction in addressing the concerns of migrant workers attracted sharp criticism from several quarters, which is why the apex court woke up from its slumber and took suo motu cognisance of the issue.
It is in this context that the showcause notice issued by the Bar Council of India (BCI) to Dushyant Dave and other members of the Supreme Court Bar Association (SCBA) has to be viewed. Notice was issued to them for not having obeyed the BCI’s May 10 resolution and for having made derogatory remarks against the resolution. This is an attempt to curb the independent functioning of lawyers and lawyers’ associations. Instead of looking at criticism as healthy and necessary, the powers that be feel that the Bar is intimidating.
Infighting within the SCBA
The current issue has its genesis in Justice Arun Mishra’s description of Prime Minister Narendra Modi, at an international judicial conference in February 2020, as an “internationally acclaimed visionary” and a “versatile genius”. These statements drew severe condemnation from various quarters, including the SCBA which said: “The SCBA believes that any such statement reflects poorly on the independence of the judiciary and so calls upon the Honourable Judges not to make any statements in future nor show any proximity or closeness to the Executive, including Higher Functionaries.” However, on May 7, the Secretary of the SCBA, Ashok Arora, called for a general body meeting on May 11 for the removal of Mr. Dave as President and from the primary membership of the SCBA alleging misuse of the body for political purposes. The next day, the SCBA’s Executive Committee suspended Mr. Arora saying his actions were against the interests of the association.
Instead of working out a remedy within the SCBA, which was the only proper course as it is an independent body that functions within its own laws, Mr. Arora made a representation to the BCI against the resolution removing him as secretary. The BCI, at its meeting held on May 11, strangely assumed powers and passed a resolution reinstating Mr. Arora. Mr. Dave rightly criticised the resolution of the BCI, which in turn promptly issued the showcause notice.
Does the BCI have the powers to interfere in a Bar Association’s internal matter? There is no such provisions under the Advocates Act of 1961 and the BCI rules. The BCI appears to be relying on the provisions of Section 7 of the Advocates Act, which lays down the functioning of the BCI. However, Section 7 does not justify such intrusion by the BCI into an independent Bar Association’s affairs.
Dangerous incursions
The BCI’s action is surprising as a Division Bench of the Madhya Pradesh High Court said in its judgment in Bar Association Lahar v. State Bar Council of M.P. and Another (2018): “...no provision of statute or any Rule has been brought to the notice of this Court…. conferring power to the State Bar Council to interfere with the election process and internal affairs of the Bar Associations.”
By arbitrarily encroaching upon the SCBA’s internal functioning, the BCI is at cross purposes. So far it has been confining its role to maintaining professional standards of lawyers towards clients. But it is now playing a supervisory role over the SCBA which is not provided for in the statutes. In fact, it is the Bar Associations that have played a larger role in protecting the integrity and independence of the judiciary.
Such dangerous incursions by the BCI have a deep and pervasive effect on the independent functioning of the Bar Associations not only in the Supreme Court but throughout the country. With a strong executive, the importance of an independent judiciary becomes all the more important. Consequently, the role of the Bar Associations to question and safeguard the institution assumes importance. A strong and vibrant Bar is a sine qua non for a fair and fearless judiciary.
N.G.R. Prasad & K.K. Ram Siddhartha are advocates at the Madras High Court