EFFECT OF PROPOSED AMENDMENT TO THE ADVOCATES ACT 1961

The Bombay High Court has disposed off a public interest litigation petition seeking for directions to be issued to the Bar Councils of Maharashtra and Goa for withdrawing their resolutions of a one-day strike on 31^st March 2017, to protest against the amendments proposed to the Advocates Act 1961 by the Law Commission of India. It was argued that the Supreme Court (SC) has held that lawyers do not have a right to go on a strike and boycott their work. On the other hand, the counsel on behalf of the Bar Council of India (BCI) has argued that the Law Commission has not considered the suggestions of the BCI and the retired SC judges while making such recommendations. Therefore, they are impelled to go on strike. The Court, however, held that lawyers have a significant role in the system of delivery of justice and that they must understand their responsibility and call off the strike.

The Law Commission’s 267^th Report makes various recommendations for amending the Advocates Act 1961 in the following manner:

• Lawyers can call for a strike only in compelling circumstances, for which an approval has to be obtained from BCI.
• BCI to make rules for verification of certificates, periodical verification of antecedents, conduct and place of practice of Advocates.
• BCI to make rules for pre-enrollment training and apprenticeship of a person before he/she is inducted as an advocate.
• Compulsory common entrance test for admission into any law college in India.
• The term ‘advocate’ to include a lawyer working in a law firm and also those working with foreign law firms.
• The term ‘misconduct’ to include an act of an advocate whose conduct is found to be in breach of or non-observance of the standard of professional conduct or etiquette required to be observed by the advocate; or forbidden act; or an unlawful behavior; or disgraceful and dishonorable conduct; or neglect; or not working diligently and criminal breach of trust; or any of his conduct incurring disqualification under section 24A.
• The Disciplinary Committee to consist of five members: two elected by the State Bar Council from among its members; two eminent persons from fields other than law; and one person nominated by the High Court.
• As a punishment for misconduct, fine extending to rupees three lakhs may be imposed on an advocate.

In response to this Report and the proposed changes, Advocate Rajiv Chavan, President of the Advocates Association of Western India (AAWI), has opined that the Report redefines misconduct by making the definition so wide and stringent that no lawyer will be able to practice law any longer. Also, that the amendments are anti-advocate, unconstitutional, undemocratic and against the interests of the general public. He added that if the Bar Councils would comprise of non-advocates who will be in majority, and the BCI would comprise of chartered accountants, architects, politicians and doctors, it will take away the autonomy, independence and transparency of the Council. Various Bar Councils have also expressed their opinion over the Report saying that the proposed changes are undemocratic and anti-lawyer.  On the contrary, Justice BN Shrikrishna, a retired Supreme Court Judge has stated that considering the slow system of delivery of justice and the loads of cases pending in the courts, lawyers and BCI should not go on strike.

However, the advocates across the country had observed the strike on 31^st March 2017 as a token protest.

Harini Daliparthy

Legal Associate