Bar Councils: A story of misplaced priorities amid a ranging pandemic

The recent standoff between Bar and Bench at the Punjab & Haryana High Court seems to have gotten a decent burial, but not without undesired side effects. These side effects are reflective of the strong craving of Bar Councils to exercise control over functioning Bar Associations. The resolution dated May 14, 2021 passed by Bar Council of India (BCI) has all-India ramifications.

The genesis of the issue lies in the decision of the administration of the Punjab & Haryana High Court to permit the restricted listing of cases with effect from April 23 this year in the wake of the second COVID-19 wave. Compared to listing of 1,000 fresh matters (approx.) daily in the first week of April, only 117 matters (approx.) were listed on May 10, before 13 benches of the High Court. Even matters concerning bail and life and liberty of the citizens were not being directly accepted by the High Court Registry. The office of the Punjab & Haryana High Court Bar Association was inundated with complaints/grievances as a result, with both advocates and litigants suffering.

Over a two-week period, the Bar Association tried its best to prevail upon the High Court administration to open up listing and hearing through video conferencing, but was unsuccessful. It is important to point out that almost half of the total 25 elected members of State Bar Council are themselves members of Punjab & Haryana High Court Bar Association and were fully aware of the grievances of the advocates and the efforts of Bar Association. Still, the State Bar Council hardly played any constructive role and remained a fence sitter during this entire period.

Ultimately, on May 7, the Executive Committee of the Bar Association took a decision to revive the resolution dated February 1 this year, seeking transfer of the Chief Justice and to boycott his Court. Within no time, the State Bar Council jumped into the arena uninvited and stayed the resolution of Bar Association, although it had no such power in law to do so. The matter reached the BCI, which despite having no legislative mandate, passed a resolution dated May 14, whereby it anointed itself and State Bar Councils as overseers of the affairs and functioning of all Bar Associations in India, and sought to make Bar Associations subservient to Bar Councils. The relevant portion of the resolution is reproduced herein below:-

“The differences and dissatisfaction are bound to occur in every institution. But, the issues can be resolved amicably through talks and discussions; And if an issue is not resolved at the level of any Bar Association, the matter should be reported to the concerned State Bar Council. There is no reason that the persons sitting at the top of the system will not listen to the cause of the Advocates and will not fix a time for meeting with the representatives of the Bar and/or will not consider the genuine concerns of the Bar. Such guidelines are to be followed by all the Bar Associations.

Here, in the present case, we must appreciate the quick and appropriate decisions taken by the State Bar Council of Punjab and Haryana on both the occasions (i.e. on 01.02.2021 and 07.05.2021). Infact, the Advocates Act, 1961 has empowered the State Bar Councils to deal with and to tackle such issues properly.”

The Bar Council of India and State Bar Councils are statutory bodies established under the Advocates Act, 1961. Sections 6 and 7 of the Act enumerate the functions of the State Bar Council and Bar Council of India respectively. To give an idea of the functions to be discharged by State Bar Councils, Section 6 of Advocates Act is being reproduced herein below:-

6. Functions of State Bar Councils.―(1) The functions of a State Bar Council shall be―

(a) to admit persons as advocates on its roll;

(b) to prepare and maintain such roll;

(c) to entertain and determine cases of misconduct against advocates on its roll;

(d) to safeguard the rights, privileges and interests of advocates on its roll;

[(dd) to promote the growth of Bar Associations for the purposes of effective implementation of the welfare schemes referred to in clause (a) of sub-section (2) of this section and clause (a) of sub- section (2) of section 7;]

(e) to promote and support law reform;

[(ee) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest;

(eee) to organise legal aid to the poor in the prescribed manner;]

(f) to manage and invest the funds of the Bar Council;

(g) to provide for the election of its members;

[(gg) to visit and inspect Universities in accordance with the directions given under clause (i) of sub-section (1) of section 7;]

(h) to perform all other functions conferred on it by or under this Act;

(i) to do all other things necessary for discharging the aforesaid functions.

[(2) A State Bar Council may constitute one or more funds in the prescribed manner for the purpose of

(a) giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates;

(b) giving legal aid or advice in accordance with the rules made in this behalf;]

[(c) establishing law libraries.]]

[(3) A State Bar Council may receive any grants, donations, gifts or benefactions for all or any of the purposes specified in sub-section (2) which shall be credited to the appropriate fund or funds constituted under that sub-section.]

Bar Associations are formal groups of advocates who come together to form associations registered as societies. These associations are independent bodies having their own Rules and Regulations and are governed by the provisions of the Society Registration Act, 1860. Thus, Bar Councils and Bar Associations are regulated by different sets of laws and the former do not supervise the functions of Bar Associations, nor do Section 6 or Section 7 of the Advocates Act empower the Bar Councils to interfere in the functioning of Bar Associations.

Issues with regard to fairness and transparency of elections to the Bar Associations throughout the States of Punjab & Haryana have cropped up over the past few years. Some matters reached the Punjab & Haryana High Court for adjudication. In one of these matters (Mohinder Singh Chauhan v. Bar Council of Punjab & Haryana), in 2014, the High Court deemed it appropriate to call upon the State Bar Council to enact appropriate Rules for elections to bring uniformity to all the sub-divisional or district level Bar Associations. The Bar Council was directed to take notice of other anomalies which were affecting purity, fairness, transparency and democratic values in the annual elections of Bar Associations.

The Bar Council of Punjab & Haryana thereafter invited all the Bar Associations to give their proposals on formulation of the Rules. After due deliberation, the State Bar Council framed the Bar Association (Constitution and Registration) Rules, 2015 to regulate the process of elections of Bar Associations within the States of Punjab, Haryana and the Union Territory of Chandigarh. Needless to say, the Rules were the result of a consultative process.

Beyond the space voluntary ceded by the Bar Associations, State Bar Councils or the BCI cannot interfere in the functioning of the Bar Associations, much less stay the resolution/s passed by the Bar Associations. Any such action by the Bar Councils is definitely an overreach.

Courts all over the country have been working in a restricted manner over the past year. The legal profession is one of the worst-hit. The Bar Council of India and State Bar Councils have not done anything tangible to help ordinary advocates. Many advocates have fallen into extreme penury. Different Bar Associations across India have done a commendable job in helping their member advocates during these difficult times. Whereas the Bar Councils still seem to have no workable plan to help advocates, even as a third COVID-19 wave is being predicted by experts and the normal functioning of courts is unlikely to resume any time soon.

It is unfortunate that during these times, instead of providing any succour to the deeply troubled legal fraternity, the Bar Councils are on the lookout for occasions to wrest control of the Bar Associations throughout the country. The author is sure that these unwarranted attempts of election-savvy Bar Council members will be befittingly dealt with by battle-hardened courtroom advocates to save the independence of their respective Bar Associations. The Bar Councils should get their priorities right, focus on the welfare of advocates during these tough times and gain the trust of the legal fraternity and Bar Associations.

The author is a practicing Advocate at the Punjab & Haryana High Court.

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views of Bar & Bench.