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Wednesday, July 08, 2020

As it rages against court’s critics, Bar Council does not speak for legal profession

Except in the world of Alice in Wonderland, the BCI does not speak for the legal profession in this country. Nothing else explains the grandiloquent comment: “Bar totally disapproves and deprecates such act.”

Written by Navroz Seervai | Updated: June 5, 2020 9:39:07 am
Manan Kumar Mishra, Bar Council of India, BCI, india legal profession, right of free speech, Indian express The BCI is a statutory body constituted under the Advocates Act,1961. It has well-defined, limited jurisdiction, which it legally cannot transgress. Each state also has its Bar Council, with limited jurisdiction. (File Photo)

Manan Kumar Mishra is a man on a mission, if his past and present conduct and utterances are anything to go by. Unfortunately, the position he presently holds, Chairman Bar Council of India, (BCI), gives his pronouncements the semblance of authority, emanating from his office. He, therefore, presumes he can portray to the public that he and the BCI speak on behalf of the entire legal profession. Nothing is further from the truth.

The BCI is a statutory body constituted under the Advocates Act,1961. It has well-defined, limited jurisdiction, which it legally cannot transgress. Each state also has its Bar Council, with limited jurisdiction.

The press release issued by Mishra on May 30 on behalf of the BCI constitutes a clear transgression of its jurisdiction. It is an unwarranted assault on the independence of the legal profession, as also an illegal attempt to interfere with the fundamental right of free speech, thought and expression, guaranteed under Article 19(1)(a) of the Constitution. It is also an indirect attack on the press, on NGOs, activists and social workers, who were constrained to repeatedly bring to the attention of the Supreme Court the horrifying plight of millions of migrants.

The press release begins with leaping to the defence of the Supreme Court. It attacks senior advocates and former judges for a conspiracy to weaken the Court and browbeat it. It incorrectly opines that this “concerted attack by some disgruntled members of the Bar and some unhappy and disappointed former judges” is unprecedented. It seems oblivious of the sustained and withering attacks on the Supreme Court during, and even after the Emergency.

This initial outburst is followed by rank abuse. One would have thought that the president of the BCI would refrain from such language, particularly when what he attacks is fundamental to a strong and independent Bar, namely, the right to dissent and the right to criticise. In fact, the right to think, and translate those thoughts into words and actions — what an Article of our Constitution recognises as a fundamental right, that of “freedom of speech”.

The insulting words the press release uses are defined in the following manner in the Concise Oxford Dictionary, “disgruntled” means “discontented” and discontented means “dissatisfied”. The Cassell Concise Dictionary further defines “disgruntled” as “annoyed, disappointed”. So, by using it as a pejorative against retired judges, lawyers and others, the press release has proclaimed that “the Bar” Mishra represents does not want lawyers to be dissatisfied, disappointed or annoyed, no matter what the provocation, no matter what the justifiable reason for being annoyed, dissatisfied or discontented. In short, his preferred Bar is of unthinking, mute ants or bees, busily working away at their anthill or beehive. Thankfully, he is not going to get it.

Misleadingly, the press release paints a picture of a proactive Supreme Court having immediately gone to the rescue of the millions of migrants who were in the throes of dying as they walked home. We all know what the facts are, and why so many throughout the country were annoyed, dissatisfied and discontented with the Supreme Court’s inaction. It was only because of the concerted efforts of these persons and groups, that the conscience of the Supreme Court was adequately roused to pass orders, howsoever belatedly.

To abuse, berate, and threaten these persons, which is what the press release does, demeans the BCI, and is an obvious attempt to curry favour with the powers that be, not to mention the Supreme Court. Surely, this is not the remit of the BCI. And I ask myself: Does the Supreme Court need to be protected with the sword of Mishra? I would like to think not. Rather, well may it echo Voltaire: “May God defend me from my friends; I can defend myself from my enemies.”

If anyone believes that attempts to browbeat the few courageous retired judges, the innumerable lawyers, the press and others (who took up the cause of the migrants) so that they forsake their right to comment, criticise and protest, whether it be over the government’s mismanagement and callous disregard for millions of poor migrants or the Supreme Court’s inaction, or the conduct of BCI itself, they are sadly mistaken. These people are not going to be deterred by press releases!

Let me also clearly say that except in the world of Alice in Wonderland, the BCI does not speak for the legal profession in this country. Nothing else explains the grandiloquent comment: “Bar totally disapproves and deprecates such act.”

But the question remains: Is this what the legal profession wants? Is this what the profession should tolerate? Or rather, should Mishra not be told, in the memorable words of Oliver Cromwell, when he dismissed the Rump Parliament in 1653: “You have sat too long here for any good that you have been doing. Depart, I say, and let us have done with you. In the name of God, go!”

This article first appeared in the print edition on June 5 under the title “The freedom to criticise”. The writer is a senior advocate.

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