Introduction

The Bar Council of India is a statutory body that regulates and represents the advocates. It was established under Section 4 of the Advocates Act, 1961. BCI stipulates a standard of professional conduct, etiquette and also discharges disciplinary jurisdiction over advocates. It also sets standards for legal education in India and recognizes universities, based on the eligibility criteria when the degree of the university fills in as a qualification for students to enroll themselves as advocates after graduation.

The Bar Council of India comes under the Ministry of Law and Justice, Government of India. It is a corporate body. An endless succession and a common seal. Bar Council of India forms and establishes some committees like the Education Committee, the Disciplinary Committee, the Executive Committee, the Legal Aid Committee, and many more. They were formed to take charge of some explicit issues that come to the surface once in a while.

The BCI was formed after the enforcement of the Constitution of India. An annual meeting of the Inter-University Board held in Madras happened and a resolution for the need of an All India Bar was emphasized so that there remains uniformity in the law examinations that were conducted by different universities. Later, at the Madras Provincial Lawyers Conference, 1950, it was suggested that the Government of India should appoint an advisory group to establish the All India Bar and change the Indian Bar Council Act. The Bar Council of Madras supported the resolution.

A comprehensive Bill was introduced in the parliament by Syed Mohammad Ahmad Kazmi, MP to amend the Indian Bar Councils Act. A Committee was set up to inquire and suggest the establishment of the All India Bar. The All India Bar Committee, consisting of seven members and headed by Justice S.R. Das, presented a report which recommended establishing State Bar Councils along with the Bar Council at the national level.

Thereby, in 1961 – the Advocates Act was implemented and passed. Under this Act, the BCI was set up with the primary objective to control and administer the working of all immediate subsidiary state-level bar councils other than setting out the measures of professional conduct and etiquette.

Bar Council of India has the functions of (mentioned under Section 7 of the Advocates Act, 1960) –

1. Laying professional conduct and code for the advocates.

2. To lay down the procedure needs to be followed by the disciplinary committees of the State Bar Council.

3. To recognize law universities whose degree should be eligible for enrollment as an advocate in the Bar and for this purpose, the universities should be visited and inspected.

4. It promotes and supports law reforms. It also gives further suggestions or recommendations on the issues arising.

5. It promotes legal education, lays down basic standards of education. BCI conducts seminars, organizes legal topics by eminent jurists, and publishes journals and papers of legal interest as well. It also organizes legal aid for the vulnerable strata of the society.

6. BCI manages the funds. The fund collected is utilized to give financial assistance to the poor, disabled, or advocates. It is used for libraries or legal aid as well.

7. BCI conducts elections at regular intervals too.

The Bar Council of India as mentioned under Section 5 of the Advocates Act is a corporate body. What is the corporate body? Body corporate, as defined under Section 2(11) of the Companies Act, 2013, means the corporate entity having legal existence. This Section does not elaborate on the essential features or characteristics of a body corporate. Though it is pertinent to see, the provision specifically describes what is not included within the definition of the term “body corporate” or “corporation”.

In the well-known case the Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. The State of Delhi and Ors^[1], the Court cited Halsbury (Laws of England 3rd Edition) and considered the meaning of “corporation”, as quoted “A corporation aggregate has been defined as a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of contracting obligations and of suing and being sued, of enjoying privileges and immunities in common, and of exercising a variety of political rights, more or less extensive, according to the design of its institution, or the powers conferred upon it, either at the time of its creation or at any subsequent period of its existence.”^[2]

In the recent ruling of Ahmedabad Municipal Corporation and Ors. vs. Raju Bhai Soma Bhai Bhardwaj and Ors,^[3] the Supreme Court again referred to the Halsbury (Laws of England 4th Edition), as quoted –

“A corporation may be defined as a body of persons (in the case of a corporation aggregate) or an office (in the case of a corporation sole) which is recognized by the law as having a personality which is distinct from the separate personalities of the members of the body or the personality of the individual holder for the time being of the office in question.”^[4]

Advantages that BCI enjoys as a corporate body

The definition and meaning of the body corporate as mentioned above unambiguously stipulates the fact that the “Status of Corporation” definitely brings many advantages along with itself. Bar Councils, be it BCI or any State Bar Council, unlike individuals, are the creation of law – an artificial legal entity.

It is similar to any other company incorporated under the Companies Act. There are several rights and obligations along with powers and duties as given under the Advocates Act, 1961 which can aptly refer to the Bar Council as an artificial person – being invisible, intangible and yet having existence through the contemplation of law.

Separate legal identity

This principle reverberates that incorporation creates a separate personality of an organization. Since it is distinct and separate, consequently its members can not be held liable for its actions as the legal identity of the corporate body is different from the members’ identity. This rule exists until the court orders to life the veil of the corporation – meaning holding members liable for the act which is subjective from case to case.

This principle was well illustrated in one of the most famous cases – Solomon v Solomon & Co.^[5]. In this case, the Court decided on the issue of whether a shareholder can have unlimited personal liability for its debt, even though the company has a separate entity. The Court ruled in the favor of the Shareholder and decided that the company has its own identity and therefore, Solomon was not liable for covering the debt. Long before this case, in India, the Re Kondoli Tea Co. Ltd case ^[6]occurred. In this case, the Calcutta High Court discerned that “a company was altogether a separate person, different from its members and therefore the transfer was as much as conveyance a transfer of the property as if its members had been different persons”.

It can sue or be sued in its name

A corporate body has the advantage to sue or be sued in its name. A natural person necessarily represents the corporate body. In case, any natural person not representing the complaint is liable to be dismissed in the same way as any natural person’s complaint would be dismissed in the absence of the individual.

In this regard, every State Bar Council and the Bar Council of India under Section 5 of the Advocate Act, 1961 is a body corporate and can sue or be sued in their names. The councils have a separate identity from the members.

Perpetual succession

Perpetual succession by the definition means “constant existence”. It implies that a company never dies, even when the members cease to exist. It is inevitable that the members within the corporation change. It implies that any change in the membership will not impact the stature and identity of the corporate. It retains the same privileges and immunities. Calcutta High Court enunciated regarding the principle of perpetual existence that “death or insolvency of individual members does not in any way, affect its corporate existence and the Body Corporate shall continue its existence as usual until its wound up by provisions of Law”

This clearly shows that a corporate body has perpetual succession irrespective of its members. Connecting this to the Bar Council of India and State Bar Councils – they are conferred with this principle and feature too. It has been categorically mentioned under Section 5 of the Act, that “Every Bar Council shall be a body corporate having perpetual succession” 

Separate property

The company is a separate legal entity in the contemplation of law and it can hold the property in its name. Its members do not have any claim on the company’s property(s). in the case Bacha F. Guzdar v. CIT Bombay ^[7], the Court stated that “a company being a legal person, in which all its property is vested and by which it is controlled, managed and disposed of a member cannot, ensure the companies property on its name.” In another case, Macaura v. Northern Assurance Co. Ltd. ^[8], the Court stated that “a shareholder of a timber company, held all shares of the company but one. He also ensured the timber was on his name, which was destroyed in a fire. When he sought compensation, it was held that they were not liable to pay any money to the shareholder, instead of the timber since he did not own the timber and that timber, which the company owned, was not insured.”

Common seal 

A common seal is a signature of the corporation. When it is affixed to any document, it binds the corporation within the document frame. It is the signature of the corporation. It is authorized by the company, official in nature, and binding on the company.

This makes it certain that a corporate body can have a movable or immovable property in its name and also, it can have a common seal as a signature for itself.

Along with the advantages, the status is given to the Bar Council of India – “body corporate” constitutes many disadvantages along:

1. There is no personal liability even when it is a requirement, a shield of corporate is there to safeguard the members of the Bar Council of India.

2. Bar Council is a statutory body and not a company per se, thereby there is no means of Taxation from it.

Has BCI been biased in its approach?

Passing outrageous judgments and issuing eccentric regulations, BCI has abused its status as a body corporate, and this can be seen in the following cases.

On 3 March 2017, the Supreme Court put the stay order on the operation of a circular which was issued by the BCI. The circular imposed the age limits on people enrolling for law degree programs in the country and practically barred anybody above the age of 20 from entering the five years law school program. It also barred anyone above the age of 30 from entering the three-year law school program. Even though there were relaxations to some entitled reserved communities, this was an act of bias. After the Court’s order, relief was provided to the ones who were affected by this tumultuous decision.

In the past, many disciplinary actions commenced by the BCI have been biased, selective, and partisan. One such instance was in 2017 when a show-cause notice was issued against Senior Advocate Dushyant Dave, for his open criticism of the Supreme Court collegium system and how it succumbed to the executive pressure while transferring Justice Jayant Patel, Judge of High Court of Karnataka. The notice was bizarre and unexpected by the body representing advocates. It is also noteworthy that the authority to initiate disciplinary proceedings lies with the Disciplinary Committee of the concerned State bar Council and not with the BCI.

The biased and selective approach of BCI has raised the question of whether it sometimes abuses its status and undermines its objectives to safeguard the rights, interests, and privileges of advocates.

The way forward

1. Remove direct control of government: The direct control and imposition of authority over BCI by the Government is not only hindering BCI and the legal profession but is also destroying the idea of a body corporate. Therefore to ensure functional autonomy, the statute needs to be amended to restrict state interference.
2. To be guided by law commission: Rather than the guidelines for the working of BCI being framed by the government, it would be more appropriate to have them framed by Law Commission.
3. Work in tandem with bar associations: This would benefit all and put an end to speculative and unending litigation. Moreover, this would bring an end to the constant tussle between bar councils and bar associations.
4. Invite ideas from the target group: BCI should invite ideas from the target group regarding which they are framing or amending the guidelines. This would be a progressive step with its benefits having a lingering effect.

Conclusion 

This Section does not seek much attention from the jurists because it’s only providing the corporate body status to the Bar Council of India and State Bar Councils but it has forgotten the consequences and existential power that comes along with the status.

The bias of BCI appears in some instances and they can not be held liable for the same reason. As I made some recommendations for the above-mentioned scenario, it is necessary to indulge ourselves in scrutinizing what we can improve further in the legal aspects. The law is not static. Law is dynamic and changes with the climate of the era. 

It is certainly right to even scrutinize the body which represents the advocates and the legal profession per se.