Supreme Court to consider BCI reconstitution after State Bar elections; AG, SG to be consulted before any BCI decision

The Supreme Court on Wednesday ordered that Attorney General (AG) R Venkataramani and Solicitor General (SG) Tushar Mehta actively participate in every decision taken by the Bar Council of India (BCI) [Yogamaya MG vs. Union of India].

A bench of Chief Justice of India (CJI) Surya Kant and Justices Joymalya Bagchi and V Mohana passed the direction after multiple petitions alleged gross illegality in Senior Advocate Manan Kumar Mishra continuing as chairperson Bar Council of India (BCI) without authority.

"Both the Attorney General for India and the Solicitor General for India shall be actively associated with every policy decision taken by the Bar Council of India," the Court directed.

However, the issue of reconstitution of BCI will be considered only after elections to all State Bar Councils conclude and they elect their representative to BCI.

The Court was hearing a bunch of petitions, some of which sought removal of Mishra as BCI chairperson and some alleging gross illegalities in the creation of a new BCI trust - PEARL Trust- headed by him.

The Court today did not pass any adverse directions against Mishra but said it will await completion of State Bar Council elections and then take a call on the issue of BCI's reconstitution.

"The newly constituted State Bar Councils are directed to elect their statutorily prescribed office-bearers, including their respective representatives to the Bar Council of India, within a period of two weeks from the date on which their composition is notified. All the State Bar Councils are directed to submit their compliance reports. Upon receipt of these compliance reports, we shall consider the issue concerning the reconstitution of the Bar Council of India under Section 4 of the Advocates Act, 1961," the Court said in its order.

The Court also recorded BCI's submission that the Attorney General and the Solicitor General shall be actively associated before any policy decision is taken by the Bar Council of India.

"Meanwhile, Senior Advocate Guru Krishnakumar, appearing for the Bar Council of India and its office-bearers, has fairly stated that the Attorney General for India and the Solicitor General for India shall be actively associated before any policy decision is taken by the Bar Council of India. For the present, these matters shall await the first compliance reports concerning the completion of the co-option exercise and the constitution of the State Bar Councils," the order said.

The matter will be heard again after two weeks.

In a nutshell

- Newly constituted State Bar Councils will complete their co-option exercises as directed by Supreme Court earlier. They will elect fresh representatives to the BCI (which will eventually pave way for fresh BCI leadership election).

- The State Bar Councils should submit compliance reports before the Supreme Court after completing the above exercise.

- The issues concerning BCI chairperson's tenure extension and formation of BCI PEARL Trust will be considered by the Supreme Court after State Bar Councils submit compliance reports.

- Until the reconstitution of BCI, the existing BCI office-bearers can handle routine affairs.

- However, policy decisions cannot be taken without the involvement of AG and SG.

Background

The petition filed by Supreme Court lawyer Yogamaya MG has challenged the uninterrupted continuation of Mishra as BCI Chairman, arguing that BCI Rule 12(2) caps the chairman's tenure at two years and that the April 2025 gazette notification extending his term to 2030 was contrary to law.

The petition has sought Mishra's removal along with a fresh, court-supervised election, a cumulative term limit and rotation mechanism for the office.

Pertinently, the petitioner has also sought an independent probe into the BCI Trust "PEARL-FIRST" and All India Bar Examination finances.

The plea has further prayed for an interim direction to set up an independent administrative committee to run BCI's functions if the Court orders Mishra's removal.

The petition was filed through advocate Deepak Prakash.

5-year tenure of Mishra through notification

When the matter came up for hearing, Justice Bagchi asked under what provision of law was the 2025 gazette notification - granting Mishra a tenure of 5 years - was issued.

"The notification prescribes a tenure of five years. Under which provision has it been issued?" the bench queried.

Senior Advocate Madhavi Divan, appearing for one of the petitioners, said that their challenge is based precisely on that.

"That is precisely our challenge. The notification has been placed on record through additional documents. We did not initially have access to it because it was not available on the website. We subsequently obtained it separately," Divan said.

"I apologise for interrupting. We have expressly challenged this notification in item 41," Senior Advocate CU Singh weighed in appearing for petitioner Yogamaya.

The notification has no legal basis and defeats the purpose of having bar council elections, Divan underlined.

"May I show the notification? It has been filed with our additional documents dated August 29, 2026. It appears at page 2. The notification is dated April 21, 2025. No specific statutory provision has been referred to. This notification has the effect of defeating this Court’s entire exercise concerning Bar Council elections," Divan said.

She then referred to the minutes of the general council meeting of the Bar Council of India held on March 2, 2025, at its premises in New Delhi.

As per the said minutes, the tenure of Mishra and vice chairman was extended till 2030.

"It records the results of the elections for the posts of chairperson and vice-chairperson of the Bar Council of India. Mr Suresh Chandra Shrimali, described as co-chairperson of the Bar Council of India, presided over the meeting. There is no post of co-chairperson under the Advocates Act, as far as we are aware. The resolution states that Mr Manan Kumar Mishra, Senior Advocate and member of the Bar Council of India, was unanimously elected as chairperson for a tenure commencing on April 17, 2025, and ending on April 16, 2030. It further states that Mr S Prabhakaran, Senior Advocate and member of the Bar Council of India, was unanimously elected as vice-chairperson for the same tenure commencing on April 17, 2025. Mr Prabhakaran has subsequently lost the election and is no longer an elected member. Despite that, the notification purports to continue his tenure until 2030. This notification was gazetted but was not placed on the Bar Council of India website. We accessed it very late and were unaware of it when our petition was filed. Therefore, our petition does not presently contain a prayer challenging the notification. The petitioners in item 41 have specifically challenged it. This mechanism renders this Court’s entire exercise concerning Bar Council elections nugatory because the resolution purports to continue these office-bearers until 2030," Divan said.

"What is the tenure of the chairperson of the Bar Council of India under the Rules?" Justice Bagchi asked.

"Two years. Rule 12(2) provides a tenure of only two years for the chairperson and vice-chairperson," Divan replied

"If this resolution is allowed to operate, it continues their tenure beyond April 17, 2027, despite the Rules prescribing two years. This is ex facie there," Justice Bagchi noted.

"Yes.On the face of the Rule, a notification cannot override it. Does the Rule empower the body to grant an additional tenure?" the Court asked.

"The principal resolution concerns the appointment of a secretary. The final paragraph then states: 'It is resolved to extend the tenure of the Chairman and Vice-Chairman from three years to five years, which will take effect from April 16, 2025, after the next election of the office-bearers. The resolution is being adopted after thorough discussion and deliberation'," Divan said reading out the resolution.

"Interestingly, it purports to extend the tenure from three years to five years, whereas the Rules prescribe only two years," CJI Surya Kant remarked.

Divan then flagged that a similar resolution was issued in 2020 similarly extending his tenure till 2025.

"Yes. Another notification prescribing a five-year tenure was issued in 2020," she said.

"The final sentence of this resolution states that there is no express or implied restriction or prohibition in the Advocates Act preventing the Council from determining or extending the tenure of its office-bearers," Senior Advocate Sanjay Hegde submitted.

"It is based on a misreading of Section 4(3) and Rule 12(2)," Senior Advocate Shobha Gupta said.

"From 2016 to 2025, the election has always been unopposed. Only one person contests," Gupta added.

"We are not examining an individual. Let us not convert this into an issue concerning a particular person. We are examining the statutory framework," CJI Kant said.

Divan said that State Bar Council elections are currently underway and the BCI, being a representative body elected by State Bar Councils, must also be reconstituted after the State Bar Council elections.

"The impugned notifications were issued in 2025. We are now concerned with the position after the 2026 State Bar Council elections. The Bar Council of India must be reconstituted following those elections," she said.

"That is correct," the CJI said.

"Each newly constituted State Bar Council must elect its representative to the Bar Council of India. An interim arrangement may be considered until that reconstitution takes place. By virtue of the April 21, 2025 notification, the present chairperson and vice-chairperson purport to continue in office. It is unclear how the newly constituted Bar Council of India will function under such an arrangement," Divan contended,

"That is why an interim order is necessary. The operation of the January 2025 and April 2025 notifications should be withheld in light of the fresh State Bar Council elections conducted pursuant to this Court’s directions," Gupta too submitted.

"We should be optimistic that, once the State Bar Councils are constituted, a timeline can be prescribed for each of them to elect its representative to the Bar Council of India. A meeting of the reconstituted Bar Council of India can then be convened," the CJI responded.

Allegations against BCI Pearl Trust

Senior Advocate Gopal Sankaranarayanan then flagged another issue of a new trust being created by BCI and the issues concerning its formation and functioning.

"In 2020, the Bar Council of India created the Bar Council of India Trust for Promotion of Education, Legal and Professional Reforms and Improvement in Research, known as the PEARL Trust. This new trust was intended to substitute the Bar Council of India Trust with which we were all familiar. The assets and income of the original Bar Council of India Trust were transferred to the PEARL Trust. The PEARL Trust has eleven managing trustees, including the chairperson and vice-chairperson of the Bar Council of India. It states: 'Eleven trustees shall be called managing trustees and they are the original and permanent trustees under this deed. They shall hold office of the trust irrespective of their tenure as members of the Bar Council of India'," he submitted.

This was done without the wider knowledge of the bar, Sankaranarayanan alleged.

"The Bar Council of India and its trust consequently nominated Mr. Manan Kumar Mishra, Mr. Satish Deshmukh, Mr. DB Prasad and several others as managing trustees. The deed provides that even after their tenure as members of the Bar Council of India expires, they will continue as managing trustees unless they resign or are discharged under the Indian Trusts Act or the terms of the deed. The matter becomes even more concerning because the new trust subsequently entered into a partnership with the Goa government and established a university. We do not know the revenues or income of the new trust or what happened to the original Bar Council of India Trust. The original trust operated from 1974 until 2020. We know from the record that its entire staff was discharged," Sankaranarayanan contended.

"I have some knowledge of the arrangement. Certain provisions also contemplate ex officio nominations and an advisory body," said CJI Kant.

"We are presently challenging only the creation of permanent trusteeships in perpetuity, irrespective of whether those persons continue to be members of the Bar Council of India. The 1974 trust deed specifically provided that its trustees must be members of the Bar Council of India. The moment a person ceased to be a member of the Council, that person also ceased to be a trustee," Sankaranarayanan said.

Gupta then flagged serious issues with regard to the functioning of the trust.

"The new deed enables a serious concentration of power. Amravati tender is out. 56 acre already in Goa! Where are we heading?" she said.

"Yes. The financial statements also show income of ₹4.41 crore in a single year. The trust was created using the assets of the Bar Council of India, which is a body corporate under Section 5 of the Advocates Act," Sankaranarayanan said.

The bench then discussed how elected persons could be name themselves perpetual trustees.

"The Bar Council of India is a juristic entity. That entity has created a trust from its assets through the elected members who constituted the Council. Can those elected members make themselves permanent trustees of those assets when the composition of the corporate entity that settled the trust is itself determined through elections?" the Court asked.

"Exactly. By relying upon their continuation under the proviso to Section 4(3), these members have created a trust in which they perpetuate their trusteeship beyond their tenure and transfer control over the assets to themselves," Sankaranarayanan argued.

Perpetual trusteeship may be permissible when it attaches to an office held ex officio and not to any particular individual, the Court concurred.

"If the Attorney General, Chief Justice of India or chairperson of the Bar Council of India is made an ex officio trustee, the trusteeship attaches to the office and not to the individual. However, the composition of the Bar Council of India is not permanent. Can an elected body create a perpetual trust and name particular individuals as permanent trustees for life? Our understanding is that under the 1974 trust deed, a person remained a trustee only while holding the relevant office," the bench remarked.

"If the chairperson of the Bar Council of India is an ex officio trustee, the person may remain a trustee only while holding that office. An individual named personally cannot remain a permanent trustee after ceasing to be part of the body corporate that created the trust," Justice Bagchi underscored.

Sankaranarayanan said that a high-level probe is required.

"What has occurred during the last six years requires a high-level investigation. The records of all five trusts must be examined. We immediately require a committee comprising a law officer, senior members of the Bar, a woman member and perhaps a retired judge. Otherwise, the present arrangement will continue unchecked. The trust deed even permits an outgoing managing trustee to appoint another person in that trustee’s place," Sankaranarayanan submitted.

Madhavi Divan suggested that Attorney General and Solicitor General participate in all BCI proceedings/ decisions since they are ex-officio members.

"I have one suggestion. The Attorney General and Solicitor General are ex officio members of the Bar Council of India. Until the exercise under Section 4(1)(c) is completed, they should specifically participate in every decision taken by the Council. This would ensure oversight by the country’s highest law officers during the interim period," she said.

AG, SG in all BCI meetings

Senior Counsel Maninder Singh, appearing for BCI, said the bar body has no objection to a deadline to complete cooption process for State Bar Council elections.

"On behalf of the Bar Council of India, we respectfully accept the suggestion made by the Chief Justice. We have no objection to a time-bound requirement for completing the co-option process. However, the different issues should not be mixed together merely on the basis of apprehensions," Maninder Singh said.

He also said that BCI is agreeable to AG and SG participating BCI meetings whenever any important decision is being taken.

"Under the statutory scheme, the Attorney General and Solicitor General are already members of the Bar Council of India.. They need not be involved in the Council’s day-to-day functioning. However, whenever a decision having significant policy implications is considered, the Attorney General and Solicitor General can be invited to participate," Justice Bagchi suggested.

"There is no difficulty with that. They are the heads of the family. The BCI chairperson is present in Court. There is no objection to keeping the Attorney General involved and informed," Maninder Singh said.

Senior Advocate Guru Krishna Kumar, also appearing for BCI, objected to the proceedings being made a forum to raise multiple issues and allegations.

"This proceeding cannot become a forum for presenting an unrestricted wish list. The petitioners cannot raise apprehensions, insinuations and indirect allegations and then use them as a basis for seeking wide-ranging directions," he said.

The CJI said that the Court is examining the institution and not individuals.

"We are not going to be influenced by allegations. We are examining the institution and not particular individuals. The elections have now been conducted because of this Court’s intervention. The immediate priority is to complete the remaining statutory process and reconstitute the Bar Council of India," CJI Kant said.

Justice Bagchi said that until an elected BCI is formed, all important decisions of the bar body must involve Attorney General R Venkataramani.

"Until an elected Bar Council of India is constituted, continuation under the proviso to Section 4(3) may be permitted for day-to-day functioning. However, every policy decision must involve the Attorney General.

Guru Krishna Kumar accepted the same.

"We accept that. Every policy decision will be sent to the Attorney General for consideration. The Attorney General will be invited for every meeting involving such resolutions. Every policy decision will be placed before him. If he is able to attend, he will participate in the meeting. In any event, every policy decision will be sent to him," the BCI said.

"Therefore, three exercises remain: completing co-option, electing the State Bar Council office-bearers and electing each State’s representative to the Bar Council of India. These elections must be held within a tentative timeline," CJI Kant underscored.

The bench said that issues regarding BCI's reconstitution and PEARL Trust will be considered after State Bar Councils are constituted as per the Court's earlier directions.

"However, we will first await the completion of the co-option exercise and the constitution of the State Bar Councils within the timelines prescribed above," the Court stated in its order.

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