"Total Restriction On Lawyers' Free Speech": Plea In Kerala HC Challenges New Bar Council Rules Which Make Criticism Of Its Decisions Ground For Disqualification

A petition has been filed before the Kerala High Court by Advocate Rajesh Vijayan, a member of the Kerala Bar Council seeking a declaration that the recently inserted Sections V and V-A of Chapter II of Part VI of the Bar Council of India Rules are unconstitutional and violative of Articles 14, 19 (1) (a), and 21.

The Bar Council of India had recently published a notification dated 25th June 2021 adding Sections V and V-A to Chapter-II, Part VI of the Rules according to which the decision of any State Bar Council or Bar Council of India shall not be criticized or attacked by any Member/s of Bar Council in public domain.

The Writ Petition was filed aggrieved by the addition of these provisions, which has the effect of, inter alia, prohibiting criticism and dissent against the Bar Council of India and other Bar Councils, and demanding unquestioning acceptance of all decisions taken by them.

The petition filed through Advocate Santhosh Mathew submitted that the newly added rules infringe on the constitutionally protected freedom of speech and expression of the petitioner in his capacity as an Advocate and as a Bar Council member. It was alleged that the rules are vague and consequently create an indisputable distress on public engagement and participation by Advocates. The petition also alleged that the said provisions blatantly violate the decisions of the Supreme Court which have laid down the legally permissible restrictions on free speech and expression.

It was also submitted in the petition that these rules prescribe a procedure for proceeding against Advocates and Bar Council members which violates the basic principles of natural justice. By publishing them in the Gazette of India, it was alleged to be an attempt to inhibit the exercise of free speech and expression by Advocates and Bar Council members, although the statutorily mandated procedure for giving effect to such rules has not been fulfilled.

Additionally, the petition highlighted that Section V-A prescribed a procedure for declaring an Advocate or Bar Council member as disqualified to contest the elections of any Bar Association or Bar Council. However, in this procedure, it has been stated that Bar Council of India shall take its decision after consideration of the report of the Committee. This implies that the final decision is made by the BCI itself, which was condemned by the petitioner.

Furthermore, it was submitted that the first proviso to Section 49 (1) of the Advocates Act mandated that no rules made with reference to Section 49 (1) (c) shall have effect unless they have been approved by the CJI.

However, the said notification does not disclose if any approval from the CJI has been obtained for Section V. The BCI has not yet clarified as to whether or not it has obtained approval from the Hon'ble Chief Justice of India with respect to Section V.

At the outset, without fulfilling this statutory requirement, Section V cannot be given effect to. However, the impression that has been widely reported and conveyed in the legal and general media is that with the publication of the said notification in the Gazette of India, the newly introduced Sections have come into operation.

The petition expressed grave concerns given the drastic penalties that have been prescribed. It was submitted that in the absence of certainty as to whether or not Section V is currently in effect, it is likely that many persons will exercise self-censorship, thus leading to a classic case of violation of free speech and expression.

On these grounds, the petition sought to declare the aforementioned provisions unconstitutional and illegal. It was argued that the vague and subjective standards adopted in Sections V and V-A to determine what is permissible speech violate the petitioner's rights under Part III of the Constitution and also deviate from the decisions of the Apex Court.

The petitioner also submitted that the demand for unquestioning agreement with the decisions of the Bar Councils is also a violation of the his constitutional rights.

Accordingly, it was prayed that the Court issue a writ of mandamus or any other direction declaring that Sections V and V-A of Chapter II of Part VI of the BCI Rules are violative of Articles 14, 19 (1) (a), and 21 of the Constitution, and a declaration that these provisions can be given effect to only after obtaining the approval of the Hon'ble Chief Justice of India under the first proviso to Section 49 (1) of the Advocates Act.

Meanwhile, the petition also sought an interim relief to stay the operation of these provisions and to restrain the respondent from taking any coercive action or any steps pursuant to the said Rules pending the disposal of this Writ Petition.

Title: Rajesh Vijayan v. Bar Council of India

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