Wednesday, 10 August, 2022
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How election delay & mess in India’s legal regulator affects legal education & practice

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BCI’s unbridled power and little accountability explain why candidates are actively campaigning for these elections.

There is an important election underway in the country where approximately 1.7 million members will cast their vote in the coming week.

No, this isn’t another bypoll. It is the election to India’s powerful legal regulator — the Bar Council of India (BCI). But why should you care?

The BCI regulates legal practice and legal education — the pool that is supposedly the last defender of rights in the country. The bar councils are power centres in courts, giving members access to judges, top government law officers and, of course, the government. It also inspects and regulates law colleges and sets standards for professional ethics.

The elections are being held after a significant delay of over three years. In fact, in Delhi, this is the first bar election since 2009. In other states, it has been longer than that.

The delay is actually a symptom of a larger mess the BCI finds itself in.

In 2015, advocate Ajayinder Sangwan, an aspiring contestant, moved the Delhi high court asking the BCD (Bar Council of Delhi) to hold elections. Several similar petitions in other high courts were clubbed together and brought before the Supreme Court.

The delay was for several reasons, but at the centre of it all was one person — incumbent BCI chairperson Manan Mishra, who has been in the position for over six years now, making him one of the longest-serving chairmen.

Mishra was also in the spotlight recently after the 12 January four-judge press conference for trying to “settle” the crisis between senior SC judges and the CJI. Politically, he is an all-weather man. He has contested two elections in 2009 and 2010 on BSP and Congress tickets, and has made no secret of his loyalty to Narendra Modi. In fact, he urged all lawyers in the country to vote for the BJP in 2014 at a press conference.

In 2015, the BCI, under Mishra, came up with a mammoth plan to clean up the voter list by verifying as many as 1.7 million lawyers to weed out so- called fake lawyers. Many viewed his gigantic endeavour as a smart, delaying tactic to remain in office.

Meanwhile, the rules of this verification process have also been challenged in court.

But the BCI hasn’t been able to finish the exercise and meet its deadline of three years. The SC had to finally say in January that it could no longer wait for the ambitious housecleaning exercise to be over and ordered the BCI to conduct the elections immediately.

But why are these elections important? After all, one of the capital’s central streets — Sher Shah Marg – is blocked for two days for the poll.

More importantly, the BCI can improve the chances of its members in becoming judges.

It also inspects law colleges — private and government — for verifying if they are of adequate standards and has recently been concerned with the “mushrooming of private law colleges” in the country.

It is an independent statutory body established under the Advocates Act. The government does not control it, but has been on the regulator’s side on most contentious issues, including the decision to verify degrees of every lawyer in the country. The body also has the power to deny permissions or even shut down law colleges.

The BCI also conducts the all-India Bar examination (AIBE), the qualifying exam to practise law for which the regulator charges a handsome fee. In 2012, the AIBE was introduced to improve standards of practice but they may have just worsened since. The sight of young law graduates carrying suitcases full of books for the “open-book” examination where cheating, mass copying is an open secret does little to inspire confidence in the legal profession.

To make matters worse, a case has been referred to a Constitution bench to decide if the BCI even has the statutory backing to conduct this exam. Advocates argue that a qualifying exam violates their fundamental right to practise law.

With such unbridled power and little accountability, the BCI runs the risk of arbitrary use of its might.

It is this power that explains why candidates are actively campaigning for these elections. Allegations of unlawful activities in BCI elections conducted under the supervision of chief justices of high courts are not uncommon. In January, the advocate general of Tamil Nadu, in fact, asked to be relieved from even this nominal post (as ex-officio chairperson) because he feared that elections were not going to be conducted fairly.

Mishra’s BCI has also taken a stand against senior advocate Dushyant Dave for his criticism of CJI Dipak Misra, while it has never taken any other lawyer to task for breaching professional ethics.

Whatever be the outcome of the election next week, the next incumbent must urgently address long-pending issues like giving a robust support system for advocates, de-politicising the BCI’s functioning, and decentralising its decision-making. Failing to do so can put the legal profession and the judiciary in peril.

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  1. There’s no point in talking about anything legal. Only (il)legal things work that place. So why study law?

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