New Delhi, Sep 2 (PTI) The Supreme Court on Wednesday remarked that Bar Council of India (BCI) Chairperson Manan Kumar Mishra’s position was only “pro tem” until a freshly constituted lawyers’ body elects its office-bearers and directed that it has to take any policy decision in consultation with the Attorney General for India and the Solicitor General.
A bench comprising Chief Justice Surya Kant and Justices Joymalya Bagchi and V Mohana said it would not be influenced by any allegations and it was not concerned with the conduct of any individual but the institutional functioning of the BCI.
The apex court said it was not encouraging any “shadow-boxing” by Mishra’s continuation and said that there was a need to ensure institutional integrity until an elected BCI is constituted.
The top court was hearing petitions challenging the legality of Mishra’s prolonged tenure as BCI chairperson, seeking his removal from the post and the validity of notifications extending the tenure of the chairman and vice-chairman up to 2030.
“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) of the Advocates Act, 1961, 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 remarked orally.
Senior advocate Madhavi Divan, appearing for the petitioners, referred to a notification which granted Mishra a tenure of five years.
She told the court that Mishra had been unanimously elected chairman for a term beginning April 17, 2025 and ending April 16, 2030.
Divan read out a resolution which had extended the tenure of the chairman and vice-chairman from three years to five years, even though the rules prescribed only two years.
Referring to the proviso to Section 4(3) of the Advocates Act, she said the provision intends to prevent an administrative vacuum but has been used to avoid elections and perpetuate the existing office-holders.
The top court observed that the proviso was only transitional and a mechanism, and the controversy surrounding it may no longer survive now that elections to state bar councils had been completed.
Senior advocate Gopal Sankaranarayanan, appearing for one of the petitioners, highlighted the creation of the Bar Council of India Trust for Promotion of Education, Legal and Professional Reforms and Improvement in Research in 2020.
He alleged that its deed made 11 managing trustees “original and permanent trustees” irrespective of their tenure as BCI members.
“The assets and income of the original Bar Council of India Trust were transferred to the Trust. The Trust has eleven managing trustees, including the chairperson and vice-chairperson of the Bar Council of India,” Sankaranarayanan said while seeking a high-level probe.
Questioning the creation of the trust, the bench said the BCI is a juristic entity and asked how elected persons could name themselves as 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 bench asked.
Senior advocate C U Singh, appearing for Yogamaya M G, submitted that resolutions were being issued from the chairman’s office without wider consultation with the Bar.
Senior advocate Guru Krishnakumar, appearing for the BCI chairman, while agreeing to the suggestion that the AG and the Solicitor General should be consulted, said that the court’s platform cannot be used by the petitioners to make “broad-based insinuations and indirect allegations”.
The top court, after hearing the parties, directed that newly constituted State Bar Councils will complete their co-option exercises and will elect fresh representatives to the BCI.
“The newly constituted State Bar Councils must elect their chairperson, vice chairperson, other office-bearers and the one representative to the Bar Council of India within three weeks from the notification of their composition,” the bench said while posting the matter for hearing on September 23.
Earlier, a plea was filed challenging the legality of Mishra’s prolonged tenure as BCI chairperson and seeking his removal from the post.
Mishra was first elected as BCI chairman till 2012. Although Mishra briefly demitted office in 2014, he returned as chairman in November that year and has remained in the post since then, said the plea, filed by advocate Yogamaya M G.
The petition contends that Rule 12(2) of the BCI prescribes a two-year term for the chairman and vice-chairman, or until cessation of membership, whichever is earlier.
The plea has sought to constitute an independent committee headed by a former apex court judge or former chief justice of a high court.
It has challenged April 21, 2025 Gazette notification that extends Mishra’s tenure until 2030. PTI PKS SJK PKS KSS KSS
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