Law Commission's 266th Report On Amendments To Advocates Act Will Put Legal Profession In Dark Shadow Of Emergency: BCI Sub-Committee

Submitting its report to the Bar Council of India (BCI), the sub-committee constituted by the BCI to study the 266th report of the Law Commission of India on amendments to the Advocates Act 1961 and regulation of legal profession has said the report suggests undemocratic changes which will pull back the legal profession in the dark shadow of Emergency.

The sub-committee comprises convener JD Jaibhave and members Shirish Mehrotra, Amit K Vaid, Asim Pandya, Dipen Dave, Jitendra Sharma, Kirti Uppal and Rajiv Sharan.

The sub-committee also considered various suggestions received from bar associations across the country while considering the report of the Law Commission, which suggests sweeping changes in the Advocates Act like rules against strike, nomination over election etc.

The Law Commission report also has reference to case titled Mahipal Singh versus State of Uttar Pradesh, wherein the Supreme Court has called for regulation of legal profession.

The sub-committee also considered the said judgment and also the views of various stakeholders of judiciary, including the litigants, advocates, judges, employees and even the perception of society in general.

The reasoning given in report indicate that the sub-committee is of the firm view that the democratic structure of state bar councils and Bar Council of India cannot be disturbed, and a retrograde step cannot be taken to reverse the status of the Bar council which was existing prior to the adoption of the Constitution.

"A very strong oppose will have to be recorded on behalf of 17 lakh advocates of the country regarding amendment proposed in report number 266 whereby this democratic functioning of the bar council is withdrawn and instead a non-democratic functioning on the basic principle of nomination are incorporated," said the sub-committee.

It also referred to the premise which the Law Commission relied on, i.e. "nomination indicates direct control and election indicates diffused and indirect control" and suggested amendments whereby majority of nominated members upon the elected members of state bar councils and All India Bar Council is proposed.

The sub-committee made "all possible efforts" to oppose the principal of nomination, which it says is "not only against the principle of democracy but also against principal of good governance".

It also pointed out that in the dark shadow of Emergency in the year 1976, certain amendments were proposed by the Centre whereby the democratic structure of the Bar council was attempted to be disturbed. These amendments could not survive even for 2 years and were withdrawn immediately after Emergency.

It said: "In the backdrop of such dark shadow of democracy, reference was made to the Law Commission for considering functioning of bar council. Under that reference, 75th report of Law Commission of India was prepared under Justice HR Khanna where true spirit of independent and autonomous functioning of Bar council on principle of self governance was strongly retained.

"The said report is totally ignored while preparing report number 266 and an attempt similar to period of Emergency is tried to be made by Law Commission of India for suggesting undemocratic amendments in Advocates Act whereby the status of legal profession will be totally in Dark Shadow of a controlled system through retired judges, Supreme Court, High Court and the government."