Manan Mishra only pro tem BCI Chairperson until Bar body elects new office-bearers: Supreme Court

Representing the petitioners, Senior Advocate Madhavi Divan said the tenure specified by the BCI Rules is two years, and the April 2025 notification regarding the extension of Mishra’s term does not say under which clause it was issued.

Referring to the proviso to Section 4(3) of the Advocates Act, she said the provision intends to prevent an administrative vacuum and allows the last Chairman or Vice Chairman to continue until the new Council is in place, but has been used to avoid elections and perpetuate the existing office-holders.

Justice Bagchi said the notification cannot go beyond the Rules. “If the rule holds, it can’t extend beyond 2027. On the face of the rule, notification can’t override a statute and empower a body to give additional tenure,” he said.

The CJI said the concerns raised by the petitioners would be addressed if the elections are completed soon.

Underlining the need to involve the AG and SG in policy decisions, Justice Bagchi told BCI counsel Senior Advocate Guru Krishnakumar: “You should also bear in mind that you are like a pro tem Chairman till a fresh election of the BCI, pursuant to the elections already conducted in the State Bar Councils, takes place. So, it is not a situation where he is democratically elected and continues to be so. His term is co-terminus with the elections which are imminent. Because the new Bar Councils are about to be constituted. So, in this situation, what we generally do is, day-to-day functioning is left to the pro tem Chairman. But whenever a policy decision is taken, a permanent ex-officio member, like the Attorney General, must be involved.”

The court also dealt with concerns raised by the petitioners about the deed of the BCI-PEARL FIRST (Bar Council of India Trust for Promotion of Education (Legal and Professional) and Reforms in Law and For Improvement of Research and Social Training) Trust set up by the Council. Senior Advocate Gopal Sankaranarayanan said the deed allowed 11 managing trustees to remain “original and permanent trustees” notwithstanding their tenure in BCI.

The petitioners also raised doubts about the lack of transparency in the Trust’s financial dealings.

The bench said the BCI is a juristic entity and asked how elected persons could name themselves as perpetual trustees. Justice Bagchi said: “We have to examine the relevant terms of the Trust, because the Trust is created out of the assets of the Bar Council. Bar Council, as per Section 5 of the Act, is a juristic body. So that juristic body creates a trust, which it is entitled to do, by virtue of the elected members … So can those elected members thereby become permanent trustees when the composition of the corporate entity, which set up the trust, is an elected body?”

The court also asked Chief Justices of the high courts to complete the co-option of two women members to state Bar councils within two weeks and notify their new composition within one week of the co-option. It said that the newly constituted state Bar councils must elect their representatives to the BCI within three weeks from the notification of their composition.