Bar Council of India's restrictions on lawyer-parliamentarians show it is abdicating responsibility, kowtowing to powerful

“Without an independent Bar, it would be futile and fanciful to think about an independent judiciary,” said senior advocate Indira Jaising at a recent public talk on the crisis that India’s topmost judiciary is facing. She went on to trenchantly criticise the Supreme Court Bar Association and the Bar Council of India (BCI) for their hostility towards public interest lawyers Prashant Bhushan and Dushyant Dave, who have been crusading for judicial independence and accountability. [caption id=“attachment_2057985” align=“alignleft” width=“380”]  File image of Kapil Sibal. AFP[/caption] Jaising has earned both fame and notoriety in equal measure for not pulling any punches while dwelling on the topic of the judiciary’s probity and integrity, and her words resonated with the audience who applauded in praise and agreement. Jaising’s prescient words ring particularly loud and true when one looks at the Bar Council of India’s latest action: It announced on 31 March that it would bar senior advocates Abhishek Manu Singhvi, Kapil Sibal, and Vivek Tankha from appearing before any bench of the Supreme Court if they take part in the impeachment motion against Chief Justice of India (CJI) Dipak Misra. These three lawyers are also Congress MPs in the Rajya Sabha, so naturally they would be called upon to be a part of the impeachment motion which the party is bringing against Misra.

In doing so, the BCI rejected the objections of Singhvi, Tankha and Sibal, who responded to the BCI notice stating that the lawyers’ body had no jurisdiction to pass any order in this matter.

The decision also comes close on the heels of reports that Congress MPs Sibal and Tankha have supported the proposed impeachment process against the CJI Dipak Misra. According to the BCI resolution, while the body was against any curb on legislators who want to practice law, an exception should be carved out if such MPs, MLAs want to be a part of the process to remove a judge of a constitutional court. By a majority, the BCI decided that those MPs and MLAs who wish to participate in the impeachment proceeding in Parliament should not be allowed to continue their practice before “that court/judge”. The resolution was passed during adjudication of a representation filed before the BCI by BJP leader and Supreme Court lawyer Ashwini Upadhyay. This gives rise to the questions: Under what legal authority did the BCI pass and adopt the resolution against the four lawyers? More pointedly, why is the BCI, which is supposed to protect and promote the interests of lawyers, and is the supreme governing body of the Indian Bar, going out of its way to shield a CJI who is increasingly coming under severe criticism from many quarters, but refuses to budge an inch? Devoid of legal basis The BCI has not spelled out in its much-vaunted resolution under what legal provisions it adopted and passed the resolution against Sibal and company. This is because one thing is crystal clear: That the Advocates Act and the Advocates Act (Rules)—which define the scope of legal powers of the BCI—do not contain any provision to bar advocates from proceeding against lawyers who support an impeachment motion against a judge, howsoever high his position may be. It cannot be a case of “professional misconduct”, the scope and meaning of which the courts have clearly defined and delineated in a catena of judgment, and because, in the past, on many occasions, lawyers’ associations have protested against judicial incompetence and skullduggery. Lawyers have also protested when judges were transferred or denied positions because of political calculations, as recently happened when Justice Jayant Patel of the Gujarat High Court was meted shabby treatment by the government and its cohorts in the judiciary. Both the Gujarat and Karnataka Bar were up in arms against the government and the judicial powers which denied Justice Patel his rightful due.

At that time, what did the BCI do? It passed a resolution condemning Dushyant Dave for raising his voice against the executive’s interference in judicial appointments and functions.

At the most, the BCI can demand that lawyers who demand the impeachment of a particular judge should not appear before him, to avoid an embarrassing situation of conflict of interest. But then, as established judicial conventions and precedents go, it is incumbent upon the concerned judge to recuse himself or herself from cases in order to avoid further embarrassment to the judiciary as an institution. Political collusion? While the BCI, on its part, has been steadfast in its stance of refusing to issue any explanation or clarification, if one scratches the surface, one can see a pattern emerging. This pattern is that of the BCI doing all it can to ingratiate itself to the government of the day and the judges it prefers. Consider this: In the run-up to the 2014 general elections, BCI chairperson Manan Misra, himself a card-carrying member of the BJP, exhorted lawyers’ bodies across India to vote for the BJP. Thereafter, he wrote a paean to Prime Minister Narendra Modi, addressing him as “my lord” and ‘beloved”. More crucial is this expose by LegallyIndia: Nine days before the Congress started actively on the impeachment motion against CJI Misra, the BCI managed to get wind of affairs and embarked on a process to bar Congress MPs and lawyers from appearing in court. The BCI got its impetus from a motivated PIL filed by one of its leaders, Ashwini Kumar Upadhay, who wanted the apex court to see to it that legal eagles who were also members of the Congress were barred from arguing matters in courts. All this adds up to a justified, and justifiable conclusion: That the BCI is out on a limb to shield CJI Dipak Misra, who in spite of being beleaguered by controversies, continues to enjoy the strong support of the ruling party. It is indeed a sad day for the BCI, which has abdicated its solemn responsibility and duty, and cosied up to the powerful just to protect its narrow, myopic interests.