THE All India Lawyers Union (AILU) observed a ‘Protest Week’ from August 21 opposing the Advocates Act (Amendment) Bill, 2017. Pamphlet highlighting the bill’s negative effects on the independence and autonomy of the Bar was widely distributed among advocates, meetings of lawyers were addressed by the office- bearers of the AILU and Bar Associations.
On March 23, the Law Commission of India submitted its 266TH Report, titled ‘The Advocates Act, 1961: Regulation of Legal Profession’, to the central government, along with the Advocates Act (Amendment) Bill 2017. This bill was discussed in the national council meeting of the AILU on April 23 in Guntur. The council decided to oppose the bill in totality and since the stand of the Bar Council of India was lackadaisical and the Bar Associations seemed ill-informed and ill-prepared in comprehending the ill-effects of the bill, the AILU decided to take the campaign on the issue to the lawyers. The bill does not affect the lawyers alone. The bill, if made a law, would compromise the independence of judiciary. An independent judiciary cannot be ensured without there being an independent Bar. This campaign, therefore, was to be accomplished by educating the mass of lawyers in particular and the public at large in general by bringing out pamphlet and collecting signature of the lawyers for registering their protest.
The Indian High Courts Act, 1861 (commonly known as the Charter Act) enabled the Crown to establish high courts in India by letters patent which authorised and empowered high courts to make rules for enrollment of advocates and attorneys (solicitors). Thereafter, the Legal Practitioners Act, 1979, the Bombay Pleaders Act, 1920, and the Indian Bar Councils Act, 1926 empowered the high courts to register advocates and to deal with disciplinary matters of the advocates. After the country attained Independence, the government appointed an All India Bar Committee for submitting recommendations based on which the Advocates Act, 1961 was enacted.
A strong and independent bar is sine qua non for an independent judiciary. A large number of eminent lawyers led India’s struggle for Independence. After India got Independence B R Ambedkar, Jawaharlal Nehru, G B Pant, Vallabhbhai Patel, Rajendra Prasad, M A Ayyangar, N Gopalaswami Ayyangar, Alladi Krishnaswami Ayyar, Daulat Ram, G Durgabai and B N Rau were prominent lawyers who played a pivotal role in framing of the Constitution. Lawyers played stellar role in expansion of horizon of right to life and liberty while interpreting the Constitution.
The Advocates Act, 1961 is a piece of legislation that provided for an independent and autonomous Bar. Self-regulation is an inseparable part of its independence and autonomy. It is this independence and autonomy that are at stake if the proposed amendments are incorporated in the Act of 1961.
Move to Allow Foreign Lawyers
The controversial bill seeks to change the existing definition of ‘advocate’ by including in it an advocate carrying on practice in law in a law firm and a foreign lawyer registered under any law in a country outside India and recognised by the Bar Council of India. At present, foreign lawyers are not allowed to practice law in India. The proposed amendments if allowed would pave the way for entry of foreign lawyers in the country, a move the lawyers have been resisting since the late nineties.
Law graduates from India are not allowed to practice the profession of law in England, America, Australia and various other countries without following their cumbersome and costly procedure. Moreover, there are many restrictions such as qualifying tests, prior experience, work permits, etc. which are not contemplated in the Advocates Act, 1961. Even Section 47 of the Advocates Act, 1961 does not permit a foreign lawyer to practice in India on the basis of reciprocity without admission and enrollment as an advocate under the Advocates Act, 1961.
Democratic Character, Autonomy of Bar
Section 3 of the amendment bill seeks to introduce a system wherein a state bar council having an electorate not exceeding 5,000 will have only 11 members; in case of a state bar council with electorate exceeding 5,000 but not exceeding 15,000 will have 15 members; and a state bar council with electorate exceeding 15,000 will have 21 members. However, only half of the strength of state bar council shall be elected and the remaining half will be filled with nominations by the judiciary. One-third positions out of fifty per cent shall be nominated by the high court from amongst senior advocates having experience of not less than 25 years of practice and in case of non-availability of Senior Advocate, any advocate with such experience, retired judges of the high court. The remainder shall be nominated by the high court from a select list of eminent persons of ability, integrity and standing having professional experience of not more than 25 years in accountancy, commerce, medical science, management, public affairs, social science matters to be provided by the state bar council.
As if it was not enough, it is proposed that an advocate shall only be entitled to be a member of the state bar council if he has been in continuous practice for 10 years (so much so good) and has appeared in any court, tribunal or any other quasi-judicial body as a lead counsel in at least 12 cases a year for a continuous period of three years preceding the year of election or nomination.
The proposals curtailing the elected positions and filling up 50 per cent of positions in state bar councils shall destroy the democratic and autonomous character of the Bar and would make it subservient to the judiciary.
This is not all. Disciplinary committees which adjudicate any complaint of professional misconduct against an advocate are to be chaired, if proposed amendments are allowed, by a person who has been a district judge in case of a state bar council and by a person who has been the chief justice or a judge of a high court in case of the Bar Council of India. Out of five members of a disciplinary committee, only two shall be from the bar council.
Composition of Other Committees
Similarly, Legal-aid Committee, as per proposal, consisting of seven members will have only four from the bar council and the rest will be co-opted from amongst former Chief Justice or a judge of a high court; advocate who possess the qualifications specified in the first proviso to sub section (2) of section 3. Chief Justice or judge of a high court (co-opted member) shall be chairman of these committees.
Special Public Grievance Committee for inquiring into any allegation or complaint of a corrupt practice or misconduct against any office-bearer or member of the Bar Council of India in discharge of his duties, as a member of the council shall comprise of one former judge of the Supreme Court or Chief Justice of any high court as its chairman; two retired judges of different high courts; one Senior Advocate; one member of the Bar Council.
Disputes concerning elections are to be referred to a committee which in case of the Bar Council of India would be comprised a retired judge of the Supreme Court as its Chairman and Chairmen of two state bar councils as its members; and in case of state bar councils, a retired judge of the high court as its Chairman and two members of the Bar Council of India of whom one member shall be a person from the other state.
Disproportionate Penalties Proposed
Penalty on the erring advocate as proposed in the controversial bill is shockingly disproportionate. If held guilty of misconduct, the delinquent shall be liable for a fine which may be extended to Rs 3 lakh and cost of proceedings; Compensation which may extent to Rs 5 lakh and costs which may go up to Rs 2 lakh.
Right to Strike Affected
The bill makes an advocate liable for compensation for loss due to the misconduct of the advocate or for his participation in strike or otherwise. The proposed bill disqualifies a person having been dismissed or removed from service or employment under the Union or the State or its undertakings or any statutory body or corporation for enrolment under the Act.
The campaign of pamphlet distribution so far has been a great success. The pamphlet distribution is usually coincided with protest meeting, demonstration or dharna. Lawyers all over the country have condemned the proposed bill as draconian and expressed their readiness to take the fight against the bill to the doorstep of the government. The All India Lawyers Union is gearing up for the second phase of its campaign in which the members of the union shall be contacting each and every advocate for his or her signature on the representation to be presented to the minister of law and justice.