We need lawyers who can say ‘no’ to power and still be allowed to practise law

The Bar Council of India’s decision to withdraw its order stopping the enrolment of 2026 graduates of NALSAR University of Law is welcome. But the withdrawal does not make the original order insignificant. It raises a more fundamental question: Can the regulator of the legal profession use its statutory authority to punish law students for expressing disagreement with a constitutional functionary?

On August 13, the BCI Chairman directed State Bar Councils not to enrol NALSAR’s 2026 graduates until further orders, following reports that some students had opposed Chief Justice of India Surya Kant’s proposed participation in the university’s convocation. The BCI sought details of those who initiated or organised the campaign. Later that day, the BCI Council found that the vast majority were innocent and consequently allowed all 2026 graduates to enrol with the State Bar Council of their choice.

The reversal was necessary. But the episode should not end with the withdrawal. The original direction deserves constitutional scrutiny because it concerned not merely professional regulation, but the use of professional power in response to dissent.

Disagreement with a judge is not professional misconduct

There is an important distinction between criticising a judicial office-holder and undermining the administration of justice. A law student does not surrender constitutional freedoms merely because he or she intends to become an advocate.

Article 19(1)(a) guarantees citizens the freedom of speech and expression. Article 19(1)(b) protects peaceful assembly. These rights are not absolute, but the Constitution itself identifies the grounds on which speech may be reasonably restricted. Disagreement with the conduct, views or public actions of a constitutional office-holder is not, by itself, one of those grounds.

The Supreme Court’s decision in Shreya Singhal v. Union of India is instructive. The Court struck down Section 66A of the Information Technology Act because its vague and overbroad restrictions on expression could not be justified under Article 19(2). The judgment reaffirmed that the State cannot suppress speech merely because it is inconvenient, unpopular or offensive to some person or authority.

The principle is particularly important when the target of criticism is a constitutional authority. Judges, ministers and other public functionaries are not immune from criticism. In a constitutional democracy, public office cannot become a shield against disagreement.

The Supreme Court has also repeatedly recognised the constitutional importance of peaceful protest. In the Ramlila Maidan Incident case, the Court described freedom of speech and peaceful assembly as basic features of a democratic system and warned against arbitrary state action that frustrates these freedoms.

That does not mean every protest is protected. Violence, intimidation, threats or genuine misconduct may invite legal consequences, but merely opposing the CJI’s invitation to a university convocation does not, without more, establish any such wrong.

The BCI is a regulator, not a disciplinary authority over dissent

The second and perhaps more serious problem concerns statutory authority. The Advocates Act, 1961 clearly sets out the functions of the BCI. Section 7 empowers it to lay down standards of professional conduct and etiquette, safeguard the rights and interests of advocates, exercise supervision over State Bar Councils, promote legal education and recognise universities whose law degrees qualify for enrolment.

The Act does not give the BCI unlimited power to punish conduct it considers disrespectful or objectionable. Section 24 specifies eligibility for enrolment, while Section 24A provides specific disqualifications. A regulator cannot create a new disqualification by executive instruction when Parliament has prescribed the conditions for enrolment. If particular students cross the line into misconduct, they should be individually identified and proceeded against under the appropriate mechanism; a blanket direction imposes collective punishment first and asks questions later. The BCI’s own subsequent acknowledgement that the “vast majority” of students were innocent only sharpens the concern.

This is not merely a question of administrative prudence. It is a question of legality. The Karnataka High Court’s 2024 decision in Sri S Basavaraj v Bar Council of India is significant in this context. While dealing with the BCI’s supervisory powers, the Court held that general supervision and control over State Bar Councils does not automatically confer power to issue “gag orders” restraining speech. The distinction between regulatory supervision and control over expression is constitutionally important.

If the BCI cannot use general supervisory power to silence advocates, it is difficult to justify an even broader use of that power against students who have not yet entered the profession.

The legal profession should protect dissent, not fear it

There is an irony in the episode that should not be missed. Law schools teach students to question authority, while lawyers are expected to challenge executive action, question administrative decisions and defend unpopular causes. A profession that treats disagreement as evidence of unfitness risks teaching the wrong lesson. The BCI’s responsibility is not merely to protect the “dignity” of the profession; Section 7 of the Advocates Act, 1961 also requires it to safeguard the rights, privileges and interests of advocates and uphold constitutional standards.

That responsibility should encourage constitutionalism, not conformity. The BCI’s withdrawal is more than an administrative correction; it is a reminder that regulatory power has limits. The proper response to dissent is evidence, due process and proportionate action, not collective punishment. If any NALSAR student is guilty of misconduct, that student can be dealt with under law, but a student’s future cannot be held hostage merely for expressing an opinion against participation by a constitutional office-holder in a university function.

For a country governed by the rule of law, the test of institutions is not how they respond to obedience. It is how they respond to dissent. If tomorrow’s lawyers are punished for disagreeing with today’s authorities, we should not be surprised when tomorrow’s courts have fewer lawyers willing to disagree. A democracy needs lawyers who can say “no” to power and still be allowed to practise law.

Makhija is a lawyer, Supreme Court of India and former Special Public Prosecutor for the Enforcement Directorate, and Sharma is a final-year student at Maharashtra National Law University, Nagpur