Feb 17, 2025 12:34 IST
First published on: Feb 17, 2025 at 12:34 IST
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Justice V R Krishna Iyer famously wrote: “The law is not a trade, not briefs, not merchandise, and so the heaven of commercial competition should not vulgarise the legal profession”. This dictum may have been forgotten by the drafters of significant amendments which are being proposed to The Advocates Act, 1961. The Act has governed the conduct and regulation of advocates for over six decades but the proposed changes, while seemingly well-intentioned in some respects, raise fundamental questions about the independence of the bar and the very nature of justice delivery in a rapidly evolving society.
The context
The Advocates Act, 1961, was enacted to consolidate and amend the law relating to legal practitioners and to provide for the constitution of the Bar Council of India (BCI) and state bar councils. Over the years, the Act has served as the bedrock of professional standards, ethical conduct, and self-regulation for advocates. However, the legal landscape has undergone seismic shifts since 1961 and changes have been long overdue. The question, however, is whether the changes are timely, sufficient and workable. Certain sections of the bar have already declared their opposition to the proposed amendments and announced a one-day strike and boycott of the courts. Ironically, the amendments themselves restrict lawyers from going on strike, except in a manner that does not impede the working of courts.
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Key proposed changes
Registration with bar associations: The proposed amendments mandate advocates to belong to the bar associations of the courts they practice in. Many courts have more than one bar association and the amendments do not seem to address that possibility. The Bombay High Court, for example, has the Western India Advocates Association as well as the Bombay Bar Association working out of opposite wings of the HC, representing lawyers on the appellate and original sides of the court.
Diversity and inclusion measures: The amendments include provisions to promote diversity and inclusion within the legal profession, such as reservation for women and marginalised communities in the bar council elections and committees. This is an overdue step, as the legal profession has historically been dominated by privileged groups. Will it lead to meaningful representation, or will this manifest as a mere token gesture? Only time will tell.
Enhanced disciplinary powers for the BCI: The amendments seek to strengthen the disciplinary powers of the BCI, including the ability to suspend or debar advocates for professional misconduct. While accountability is essential, there is a fine line between regulation and overreach. Will these enhanced powers be exercised judiciously, or will they be used to suppress dissent and curtail the independence of the bar? In addition to professional misconduct, the obstruction of court work too can result in disbarment of lawyers. Given the none-too-happy relationship between bar and bench, this power may be liable to misuse if it is solely left to judges.
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Entry of foreign law firms and lawyers: The amendments in a single clause contemplate the making of rules governing the entry of foreign law firms and foreign lawyers in India. This contentious issue has been stoutly resisted by certain sections of the Indian bar, but all disputes seem to have been swept under the carpet by empowering the central government to make rules in this regard. With one stroke, the wall of resistance has been breached, a doorway has been created and it will only require the promulgation of rules to turn the key allowing the entry of foreign lawyers.
Broader implications
The proposed amendments to the Advocates Act must be viewed in the context of the broader challenges facing the legal profession and the justice system in India. The Indian judiciary is grappling with a massive backlog of cases, with over 40 million cases pending in courts across the country. The legal profession, meanwhile, is increasingly seen as elitist and inaccessible to the common citizen. One of the most concerning aspects of the amendments is the potential erosion of the independence of the bar. The legal profession has traditionally been a bastion of free thought and dissent, with advocates playing a crucial role in upholding the rule of law and defending constitutional values. By centralising regulatory powers in the BCI and introducing standardised tests and training programmes, the amendments risk homogenising the profession and stifling its diversity of thought and practice. This is particularly troubling at a time when the independence of institutions is under threat across the country.
Way forward
The proposed amendments to the Advocates Act represent a bold attempt to modernise the legal profession and address the challenges of the 21st century. However, they must be approached with caution and foresight. As the legal profession prepares to embrace these changes, it is essential to engage in a robust and inclusive dialogue. The BCI, the judiciary, and the bar must work together to ensure that the amendments are implemented in a manner that upholds the core values of the profession while adapting to the demands of a changing world. The stakes are high, and the future of the legal profession — and the rule of law in India — depends on getting it right.
As we navigate the complexities of the proposed amendments, let us remember that the legal profession is not just a means of livelihood but a job with a sacred duty to uphold justice, equality, and the rule of law. The amendments must reflect this ethos, or they risk losing sight of the very purpose they seek to serve.
The writer is a senior advocate practising in the Supreme Court of India. Views are personal