In this article, Astha Gupta of Rajiv Gandhi National University of Law, Punjab discusses the election process of State as well as the National Bar Council Body and how they are regulated.
BCI aims to wage a battle against the incompetency and ineptness of the existent legal apparatus of the country. The enactment of the Advocates Act, 1961 [Act No. 25 of 1961] led to the creation of BCI (Section 4) and the State Bar Councils (Section 3) which aimed at improving the standard of the legal education and legal profession in the country. Section 7 of the act discerns the functions of the Council which includes laying down standards of professional conduct and etiquette for advocates and to safeguard their rights, privileges and interests at the very same time. Also, it aims to promote legal education and lays down standards of such education in consultation with the Universities in India imparting legal education and the State Bar Councils and to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate and, for that purpose, to visit and inspect Universities.
The Hon’ble Supreme Court in the case of Indian Council of Legal Aid and Advice v. Bar Council of India has reaffirmed that every State Bar Council of India has the utmost duty to ensure that the rights granted under the Act are not misused by an advocate. The Bar Councils have been created at the State level as well as the Central level not only to protect the rights, interests and privileges of its members but also to protect the litigating public by ensuring that high and noble traditions are maintained so that the purity and dignity of the profession are not jeopardized.
Composition of BCI
The Bar Council of India consists of-
- Chairman elected by BCI for a period of 2 years (Current: Manan Kumar Mishra)
- Vice-Chairman elected by BCI for a period of 2 years (Current: Satish Abarao Deshmukh)
- Elected members from each State Bar Council (Elected for a period of five years).
- The Attorney General of India (ex-officio member)
- The Solicitor General of India (ex-officio member)
Additionally, BCI comprises of various committees like the Legal Education Committee, Legal Aid Committee, All India Bar Examination Committee etc. that make recommendations to the Council. The members of these committees are elected from amongst the members of the Council.
Members of State Bar Council
|<15,000 and >10,000||20|
The members are elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the State Bar Council.
Also, the following are the ex-officio members:
|State Bar Council||Ex-officio member|
|Delhi||Additional Solicitor General of India|
|Assam, Nagaland, Meghalaya, Manipur and Tripura||Advocate General of each of the State of Assam, Manipur, Meghalaya, Nagaland and Tripura|
|Punjab and Haryana||Advocate-General of each of the State of Punjab and Haryana|
|All other states||Advocate-General of the state|
Who can contest and participate in the elections?
The elected members of a State Bar Council shall be elected by and from amongst advocates, vakils, pleaders and attorneys who, on the date of the election, are entitled as of right to practice in the High Court and are ordinarily practising within the territory (including a Union Territory) for which the Bar Council is to be constituted. [Section 53 of the Advocates Act]
Conduct of the elections
Section 15 of Advocates Act states that a Bar Council may make rules to carry out the election of members of the Bar Council by secret ballot and also lay down guidelines regarding the manner of election of the Chairman and the Vice Chairman of the Bar Council.
The term of office of members of State Bar Council
According to Section 8 of Advocates Act, the term of office of an elected member of a State Bar Council (other than an elected member thereof referred to in section 54) shall be five years from the date of publication of the result of his election.
Provided that where a State Bar Council fails to provide for the election of its member before the expiry of the said term, the Bar Council of India may, by order for reasons to be recorded in writing, the Bar Council of India may, by order, extend the said term for a period not exceeding six months.
Disqualification of members of Bar Council
According to Section 10B of the Advocates Act, a person can cease to be a member of the Bar Council in the following 3 situations:
- If he is declared by the Bar Council of which he is a member to have been absent without sufficient excuse from three consecutive meetings of such Council.
- If his name is, for any cause, removed from the roll of advocates.
- If he is otherwise disqualified under any rule made by the Bar Council of India.
Constitution, functions and procedure of Committees of the Bar Council of India
- The Council may appoint from amongst its members, one or more Committees as it may deem necessary, in addition to those specified in the Act and delegate such powers, duties, and functions to such Committees as it deems fit.
- Any casual vacancy in the above Committees shall be filled up by the Council.
- Save where the Chairman or the Vice-Chairman is a member of the Committee or the Sub-Committee, the Committee or the Sub-Committee shall choose its Chairman for the meeting unless at the time of the constitution thereof the name of the Chairman has been specified.
- Unless otherwise determined at the time of the election, the term of the members of the Committees of the Council shall be as follows:
- Executive Committee – 2 years
- Disciplinary Committee – 3 years
- Legal Education Committee – 4 years
- Legal Aid Committee – 2 years
- Advocates Fund Committee – 2 years
- Any other Committee not falling under the above clauses – 2 years
Election procedure for various committees
The Executive Committee
- The procedure for the election of the Members of the Executive Committee shall be by secret ballot.
- A casual vacancy in the Committee shall be filled up by election by the Council.
- The Committee shall elect its own Chairman and Vice Chairman. The Chairman shall preside over the deliberations of the Committee and in his absence, the Vice-Chairman shall preside.
- The Committee shall be the executive authority of the Council and shall be responsible for giving effect to the resolutions of the Council.
The Legal Education Committee
- The procedure for the election of the Members of the Legal Education Committee shall be by secret ballot.
- The names of the remaining five members of the Committee to be co-opted shall be proposed and seconded by the members of the Council. In case more than five persons are proposed they shall be chosen by a show of hands. If there is equality of votes, the Chairman of the meeting shall have a casting vote.
- A casual vacancy in the Committee shall be filled in by the Council from amongst its members or non-members as the case may be.
The Disciplinary Committee
- The procedure for the election or co-option of the members of the Disciplinary Committee shall be by secret ballot.
- Any casual vacancy shall be filled in by Council by election or co-option from amongst its members or non-members as the case may be.
- The Chairman or the Vice-Chairman of the Executive Committee shall assign and allocate all matters relating to the Disciplinary Committees amongst them if more than one such Committee is constituted or is in existence.
- In case of the absence of a Bar Council of India’s member during the sitting of the Disciplinary Committee of the Bar Council of India, the remaining two members of the said Committee may request any available Bar Council of India member to fill the vacancy caused by such absence.
Election Process not to be questioned on the grounds that due notice has not been given to any person entitled to vote
No election of a member to a Bar Council shall be called in question on the ground merely that due notice thereof has not been given to any person entitled to vote, if notice of the date has, not less than thirty days before that date, been published in the Official Gazette. [Section 14 of Advocates Act]
Resort in case of absence of elections
In case of absence of elections for the State Bar Council for a period of five years and the extended time, according to Section 8A of the Advocates Act, a Special Committee will be constituted which will consist of-
- The chairman who shall be the ex-officio member of the State Bar Council (Usually the Advocate General of the state)
- Two members nominated by the Bar Council of India from amongst advocates of the State Bar Council.
The Special Committee shall hold elections within a period of six months from the date of its constitution which can also be extended by the Bar Council of India in case of any reasonable cause of the delay.
Bar Council of India Certificate and place of practice (Verification) Rules, 2015
The object of the implementation of these rules was-
- The maintenance of a record of all Advocates of the country.
- To introduce certain electoral reforms in the Bar Council/ Bar Association elections because there are cases of rigging in the polls and allegation of bogus voting.
Thus Bar Council of India has decided to undertake the detail verification & then prepare Voter’ list along with a recent photograph of the Advocate (Voter).
Certificate of Practice
Verification of Certificate of Practice is done by the State Bar Council. It shall be valid for five years only & is liable to be verified every five years by filing an application for verification in advance within a period of six months before the validity period expires.
The necessity of “Certificate of Practice”
For practice, an Advocate shall have to necessarily hold a valid & verified certificate of practice either from All India Bar Examination Rules or under Verification Rules 2015.
Exemption of certain categories of Advocates
Senior Advocates designated under Section 16 of the Act & Advocates on Record of Supreme Court of India are not required to fill up the Form for Verification. They are simply required to send two passport size photographs with their names & current Address to concerned Bar Council through their respective Associations so that their names be included in voters list of State Bar Council.
Advocates to be a member of the Bar Association
- An Advocate is required to get himself registered as Member of the Bar Association where he practices Law or intends to practice Law.
- If an Advocate does not intend to be a member of any Bar Association regd. Under State Bar Council then he shall require to intimate the same to State Bar Council & explain as to how shall he be getting benefits of any Welfare schemes floated by State Bar Council or Local Bar Association. The decision of the State Bar Council will be final.
- On leave from One Bar Association & joining of another or change of field of Law- Intimation of such change with all relevant particulars to the State Bar Council of which he is a member within a period of one month.
- Bar Association to apply to respective Bar Council within whose jurisdiction they are located, for being recognized under these Rules.
Shortcomings in the verification rules
- Two new classes of advocates; practising and non-practising advocate, are formed. Hence, some kind of discrimination is bound to follow. It disregards all the advocates who could be doing non-litigious practice.
- The purpose it aims to achieve remains unattained. One could be an advocate who never goes to Court but still, if he could manage to get his name onto at least one vakalat in a year, he would be considered as a practising advocate.
- The process of application by itself is very tiresome for the advocates.
Loopholes in the election process
Undue delays in the conduct
The State Bar Councils are widely accused of undue delays in the election process and henceforth of likely stay in the law enforcement mechanism in the country. To cite an example, in Bihar, the elections were scheduled to happen in 2015 but did not happen until this year which is almost after 7 whole years since the last elections. The scenario is not much different for around 14 more states.
Inconsistencies among various bar councils
There is no set standard of the way elections are to be conducted and also no uniformity in the eligibility of the candidates among various State Bar Councils. For example, to be eligible for the Bar Council of TamilNadu and Puducherry elections, a lawyer has to have either 10 reported judgements or must have contested five judgments in each year in the previous five years. This is not the case with any other Bar Council of the country. Consequently, there are very high chances of degraded quality and faltered judgements due to the lack of any uniform standard for all the councils in the country.
BCI not truly representative
BCI, as it makes rules and lays down guidelines for the whole of the country, is supposed to be representing all the states and areas in an equal manner. However, presently this is not the case. Rather, any State Bar Council having less than 5,000 advocates is not allowed to send members to BCI. Hence, BCI only represents nineteen states out of a total of twenty-nine. Also, with the formation of the Special Committees in a lot of states which consists of a major chunk of nominated members, the Bar Councils are increasingly being governed by members who are nominated rather than elected.
Occupancy of office post completion of tenure
According to the proviso to sub-section(3) of Section 4 of the Advocates Act, every member of BCI shall continue to hold office as a member of the Bar Council of India until his successor is elected. Hence the members whose tenure is over are still occupying the office due to non-conduction of fresh elections. To cite an example, the Senior Advocate Manan Kumar Mishra who is currently the chairman of the Bar Council of India is elected from Bar Council of Bihar and his term at the Bar Council of Bihar has expired a long time ago. Consequently, his membership in BCI also should have expired long back but that is not the case due to the aforementioned clause.
Not enough disciplinary powers with BCI
Relating to the ample amount of work that the BCI is allocated, it does not have proportionate power to initiate disciplinary proceedings. Rather, the power to initiate such proceedings lies exclusively with the State Bar Council’s Disciplinary Committee. With the lack of these powers, it becomes very difficult for the BCI to work effectively and efficiently.
In a country like India which is so widely chastised for being overly indulgent in corruption and misconduct regarding its electoral demeanour, it is the need of the hour that our legal system stays away from all such allegations and assertions. Henceforth, being considered the apex body of lawyers, the Bar Council of India elections ought to be conducted in the most impeccable manner possible.
In the present scenario, though there are a lot of loopholes in the manner in which the elections are conducted and carried forward, there is still space for a lot of reforms and regulations in the same. However, at the very same time, the effort of certain authorities and concerned members is highly appreciative in the field and reformation may take time but it will surely happen in the near future.