BCI rejects Law Commission of India report on amendments to Advocates Act, 1961
Akanksha Bhajpayee, B.A. LL.B. (H)
Bar Council of India (BCI) on Sunday rejected Law Commission of India’s 266th report which favoured entry of foreign lawyers and law firms and recommended drastic changed in the manner of regulating the legal profession in the country. The report made a reference to the judgement of the Apex Court in Mahipal Singh Rana v. State of UP which directed the Law Commission of India to revisit the provisions relating to regulation of disciplinary control over lawyers under the Advocates Act and to recommend appropriate amendments so as to make the Act more comprehensive thereby facilitating Parliament to enact a law that would effectively empower the authorities for such effective regulation.
After a two-day brain-storming session with various bar bodies of the country, BCI — which regulates legal profession and education in India — “unanimously decided to reject the draconian, anti-lawyer and undemocratic 266th report of Law Commission of India in Toto”. The BCI has decided to formulate its own set of recommendations in relation to amendments to the Advocates Act, 1961, in consultation with all the State Bar Councils and various Bar associations across the country and the same will be sent to the Union Law Ministry.
There are certain commendable regulations that the LCI has suggested like setting up of an Advocates’ Grievances Redressal Cell by the District Judge at every District headquarter to be headed by a Judicial Officer. In this regard, the High Court may issue a circular in exercise of its power under Article 235 of the Constitution providing for redressal of grievances of the Advocates. In case of grievance against the judicial officer the bar may approach Chief Justice of the concerned High Court. The LCI has also recommended specific rule-making power to the Bar Council in respect to verification of the certificates of Advocates and periodic evaluation of their place of work, conduct, etc. and creating a data based web portal of all Advocates. There have also been recommendations for preventing unnecessary strikes
The most controversial of the recommendations remains the provisions in the Advocates Act which will enable the Bar Council of India to frame rules to recognise and register foreign law firms and lawyers in India, as and when a decision is taken in this regard, particularly in view of the reciprocity provisions. In fact the bar bodies decision to protest against the report came a day after Chief Justice of India JS Khehar favoured entry of foreign lawyers and law firms, saying the opportunity should never be missed.
However, proposals such as imposing a fine which may extend up to Rs 3 lakh and the cost of proceedings and also award compensation of such an amount, subject to a maximum of Rs 5 lakh as it may deem fit, payable to the person aggrieved by the misconduct of the advocate and Lawyers being liable to pay compensation to litigants if they abstain from work even if the client has not paid the advocate, would be unjust and should be criticised. The BCI is of the view that proposal such as removal of a lawyer’s name from the rolls if he or she abstains from court work would be usurping their right to protest. This view of the BCI came in reference to the recommendation of the Law Commission that unless there are compelling circumstances and the approval for a symbolic strike of one day is obtained from the Bar Council concerned, the advocates shall not resort to strike or abstention from the court work.
The report of the Law Commission is a great step towards regulating the legal system and cannot be rejected in toto. Although, there are certain recommendations which are unjust and should not be complied with but they are just recommendations and the Parliament is efficient enough to decide whether a particular recommendation is fit to gain force of law or not. Both the recommendations of the BCI (which is awaited) and the LCI must be taken into consideration while amending the act, in the best interest of the legal fraternity as well as the general public.
 AIR 2016 SC 3302