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 of 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 Mishra's chairmanship and whether the BCI needs to be reconstituted, will be considered only after elections to all State Bar Councils conclude and they elect their representatives to the BCI..Thus, the Court did not pass any adverse directions against Mishra today but said it will await the completion of State Bar Council elections and then take a call on the issue of BCI's reconstitution. Pertinently, Justice Bagchi remarked that it was apparent from the facts of the case that Mishra can continue as chairperson only till a fresh election is held."We are not placing any stamp of approval upon the existing arrangement. It is apparent that the present chairperson can continue only until a fresh election to the Bar Council of India takes place pursuant to the State Bar Council elections already conducted. The new State Bar Councils are about to be constituted and the election contemplated under Section 4(1)(c) must then take place. In such situations, day-to-day functioning can be left to the existing arrangement. However, when a policy decision is taken, the participation of a permanent ex officio member acting independently, such as the Attorney General, is necessary," Justice Bagchi orally said. .We are not placing any stamp of approval upon the existing arrangement. It is apparent that the present chairperson can continue only until a fresh election to the Bar Council of India takes place.Justice Joymalya Bagchi.The Court went on to direct State Bar Councils to elect their office bearers, including their representatives to the BCI. This is to be done within two weeks from when the State Bar Council's composition is notified. The State Bar Councils will then have to submit compliance reports before the apex court."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," the Court added. The Court also recorded BCI's agreement to the suggestion that the Attorney General and the Solicitor General should be actively associated with any policy decision taken by BCI. 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 the Supreme Court earlier. They will elect fresh representatives to the BCI (which will eventually pave way for a fresh BCI leadership election).- The issues concerning the BCI chairperson's tenure extension will be considered by the Supreme Court after State Bar Councils submit compliance reports.- Until the reconstitution of BCI, existing BCI office-bearers can handle routine affairs.- However, policy decisions cannot be taken without the involvement of AG and SG..The Court was hearing a batch of petitions concerning BCI's leadership. This includes a plea by Supreme Court lawyer Yogamaya MG who has challenged the uninterrupted continuation of Mishra as BCI Chairman.As per the plea, BCI Rule 12(2) caps the chairman's tenure at two years. Hence, an April 2025 gazette notification extending Mishra's term to 2030 is contrary to law, the plea has contended.Pertinently, the petitioner has also sought an independent probe into the BCI Trust "PEARL-FIRST" - headed by Mishra - and All India Bar Examination finances. The petition was filed through advocate Deepak Prakash and Sriram Parakkat..5-year tenure of Mishra through 2025 notification.Justice Bagchi today sought information on the legal basis for the 2025 gazette notification that granted Mishra a tenure of 5 more years as the BCI's chairman."Under which provision has it been issued?" he queried.Senior Advocate Madhavi Divan, representing a petitioner, contended that the notification has no legal basis."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 added..She also informed the Court that the gazette notification could initially not be obtained as it is not available on the BCI website. "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," she submitted. .Senior Advocate CU Singh, meanwhile, told the Bench that the April 2025 gazette notification has also been specifically challenged in one of the petitions before the Court. .Divan also referred to a general council meeting of the BCI held on March 2, 2025. As per the minutes of this meeting, the tenure of Mishra as Chairman and the term of a vice chairman were extended till April 2030."Mr Prabhakaran (Vice-Chairman) has subsequently lost the election and is no longer an elected member. Despite that, the notification purports to continue his tenure until 2030 ... 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 added.."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..Divan flagged that in 2020 as well, a resolution was passed to extend Mishra's tenure by five years, till 2025. "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 weighed in.."It is based on a misreading of Section 4(3) and Rule 12(2)... From 2016 to 2025, the election has always been unopposed. Only one person contests," Senior Advocate Shobha Gupta added.Gupta, along with Advocates Deepak Prakash and Sriram Parakkat, represented Yogamaya. ."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 replied. Divan went on to submit that State Bar Council elections are currently underway. The BCI, being a representative body elected by State Bar Councils, must also be reconstituted after the State Bar Council elections, Divan said..Allegations against BCI Pearl Trust .Senior Advocate Gopal Sankaranarayanan then flagged another issue of a new trust being created by BCI in 2020 and the issues concerning its formation and functioning.He submitted that assets and income of the original BCI Trust were transferred to the new trust, namely the PEARL Trust, which is being manaed by eleven trustees. Notably, the eleven managing trustees are allowed to continue holding this post even regardless of whether they continue to be BCI members, Sankaranarayanan pointed out. 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," he added. He went on to express concern that this new trust later entered into a partnership with the Goa government to establish 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 submitted..Gupta added that there were serious issues in the functioning of the new 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 Court too questioned how BCI members could be name themselves perpetual trustees of the trust, regardless of whether their tenure has expired."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..The Court noted that the situation may have been different if perpetual trusteeship was linked to an office and not to any particular individual."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?" the Court remarked."An individual named personally cannot remain a permanent trustee after ceasing to be part of the body corporate that created the trust," Justice Bagchi added..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 ... The trust deed even permits an outgoing managing trustee to appoint another person in that trustee’s place," Sankaranarayanan submitted..AG, SG in all BCI meetings.Since the Court today indicated that it would only examine the question of reconstituting BCI at a later stage, Divan suggested an interim arrangement where the Attorney General and Solicitor General participate in all major BCI decisions for now. "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) (referring to election of new State Bar Council representatives to BCI) 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.The Court put this suggestion to the BCI, which did not oppose it. "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 observed. Senior Counsel Maninder Singh, representing the BCI, replied,"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."Singh also indicated that the BCI would not oppose a deadline to complete the co-option 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..Senior Advocate Guru Krishna Kumar, also appearing for BCI, objected to the proceedings being made a forum to raise multiple issues and allegations."The petitioners cannot raise apprehensions, insinuations and indirect allegations and then use them as a basis for seeking wide-ranging directions," he said.However, he too, expressed that there was no difficulty in accepting the Court's suggestion that the AG be involved before the BCI takes important decisions. The CJI assured 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 immediate priority is to complete the remaining statutory process and reconstitute the Bar Council of India," CJI Kant said..[Read Live Coverage]