The bar on criticism that muzzles the advocate

Relevance: Bar Council of India is a statutory body. Keeping an eye on its functioning of national importance is important from an exam point of view.

Synopsis:

The new Bar Council of India rules undermines the constitutional guarantees of free speech and freedom of profession guaranteed under Article 19 of the Indian Constitution. They should be duly reviewed and changed in consonance with the spirit of fair criticism in a democracy.

Background:

• On June 25, 2021, amendments to the Bar Council of India rules were announced. These rules govern the professional conduct and etiquette of advocates.

About the new rules:

• They render advocates liable for disciplinary proceedings for making derogatory statements about a court, judge, the Bar Council of India (or State Bar Councils), or its members. The consequences include suspension and disbarment. 
• The amendments clarify that healthy and bona-fide criticism, made in good faith, shall not be treated as a ‘misconduct’”.

Rationale behind their introduction:

• The bar introduced the amendments as the current framework was not able to prevent the sanctity of the courts and bar council of India.
  • For instance, in May 2020, some lawyers wrote an open letter urging the Supreme Court of India to intervene in the migrant crisis. Later, a former SC judge condemned SC’s inaction on the letter.
  • The Bar Council of India (BCI) characterised the criticism as a sustained and synchronized attack on the SC by disgruntled members of the bar and some unhappy former judges.
  • Similarly, BCI was seen criticising a live law article wherein the reputation of the Chairman of BCI was jeopardised and the use of office was portrayed in a bad light.
• The new rules will save the judiciary’s time that is spent by the institution on hearing cases related to contempt of court. 
  • The Court spent a significant amount of time charging individuals (including advocating Prashant Bhushan) with criminal contempt even during the pandemic. 

Problems associated with new rules:

• First, it undermines basic constitutional guarantees of free speech and the freedom of profession under Article 19 of the Indian Constitution.
• Second, they perpetuate the fiction that the authority of these public institutions rests on the fragile foundation of ‘public faith’. As per this notion, the dissent would reduce the ability of powerful institutions such as courts and government bodies to carry out their duties.
• Third, it would impair the exercise of fair criticism that is essential to hold public institutions accountable.
• Fourth, the pain of the disciplinary process and the possible consequences, for the careers of advocates, would have a chilling effect.
  • Chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction.

Way Ahead:

• The Bar Council of India has kept the rules on hold, pending a review by a committee comprising senior advocates, members of bar associations, and the Bar Council of India. 
• The amendments also require the Chief Justice of India’s approval before coming into effect, which has not yet been obtained. 
• Thus, the Chief Justice of India along with the Committee reviewing the new rules still have an opportunity to prevent a further assault on free speech by rejecting the amendments.