Law and justice are not identical, so what is injustice for those who have lost a case will mean justice for the winners. This became obvious when a lawyer from the Jamshedpur District Bar Association, Sudhir Kumar Pappu, voiced concern over senior advocate Manan Kumar Mishra’s ability to do justice to dual roles—as a Rajya Sabha MP and as chairman of the Bar Council of India (BCI). The BCI is the regulatory body for advocates throughout India and frames rules for advocates and senior advocates who are practising.
It is among the four most influential organisations regulating advocates in the country. The others are the Supreme Court Bar Association, the Supreme Court Advocates on Record (AoR) Association, in which advocates who have cleared the tough AoR examination must register, and the Bombay Bar Association.
Manan Kumar Mishra was elected unopposed as the BCI chairman for the seventh consecutive time. He is also a BJP Rajya Sabha MP from Bihar. Ipso facto, this senior advocate is both a politician and practices law. This raises the question of whether a politician who is busy with party politics can simultaneously practice law, as both are full-time professions. There are a few persons who have passed their MBBS and also their LL.B degrees but cannot practice both medicine and law simultaneously. If a doctor who has passed his LL.B cannot practice law, there is no reason why a Rajya Sabha MP should head the BCI.
Similarly, there are chartered accountants who have passed their LL.B but are not allowed to simultaneously practice law and accountancy. A company secretary who is on the rolls of the Institute of Company Secretaries of India with an LL.B degree cannot practice as a company secretary and an advocate simultaneously.
Being an MP or an MLA is a full-time profession. MPs of the Lok Sabha or the Rajya Sabha have to strictly adhere to the party whip, while the role of the BCI chairman demands a neutral stance to regulate lawyers’ conduct and uphold standards and ethics within the legal profession. “Holding dual positions of the BCI chairman while being a BJP MP in the Rajya Sabha compromises integrity and professional ethics,” Pappu declared.
The Modi government’s proposal to amend the Advocates Act evoked protests across India. Lawyers strongly opposed the draft bill, voicing fears it would curtail the independence and autonomy of lawyers. The government was forced to withdraw this proposal following these pan-India protests. The government sent the draft bill to an expert committee for review.
Notwithstanding these developments, the BCI chairman publicly supported the Act, stating its passage was his priority. Pappu raised a question as to how the BCI chairman could guarantee the existing draft would not be notified as a law which would be detrimental to lawyers.
If one analyses all these aspects, it becomes obvious that Mishra’s role as a BJP MP of the Rajya Sabha ensures he will support the laws passed by the government, irrespective of whether lawyers support or oppose them. When a bill is presented in Parliament, Mishra will be duty-bound to obey the party whip, thereby compromising his duty towards all lawyers in the country. If he defies the party whip, he has to resign.
Just as Goa was supposed to have enacted the Journalists’ Protection Act, which was withdrawn, the long-pending Advocate Protection Act, which was to have been introduced in the Rajya Sabha as a private bill, has been kept in cold storage. Pappu asked why Mishra had not used his influence as a Rajya Sabha MP to secure a budget provision of Rs 5000 crore for the welfare of advocates throughout the country.
Emphasising the need for an undivided commitment, Pappu urged Mishra to step down from the BCI chairmanship if he wishes to continue as a Rajya Sabha MP from the BJP. “Manan Kumar Mishra is engaged in active politics in favour of the BJP. It would be best for him to remain a Rajya Sabha MP and resign from the post of BCI chairman to avoid conflicts of interest,” he asserted.
The chairman of the BCI must be a role model for young advocates, who enrol in the state bar councils. Unlike mathematics, law is a nebulous subject. It keeps changing with changing governments because each political party professes a different ideology. The chairman of the BCI is elected, not selected, unlike the advocates general of each of the 25 states, who resign along with the chief ministers because they occupy office at the pleasure of the chief minister.
That the law can be interpreted in different ways is proved by the fact that a former high court judge, Pushpa Ganediwala, was forced to resign after she was demoted as a district and sessions judge on February 12, 2022, due to her controversial verdicts. She ruled the accused had to have “skin-to-skin” contact with a minor with sexual intent to constitute an offence under the POCSO Act. After an uproar all over the country, the 47th CJI, Sharad Bobde, withdrew his recommendation for her confirmation that had earlier been sent to the government. This was a dubious first in the judicial history.
Just this month, a bench of the high court, comprising Chief Justice Alok Aradhe and Justice Bharati Dangre, granted the prayer in her petition seeking to be given a pension on par with high court judges who had retired. The bench quashed a circular of the high court registrar saying she was not entitled to a pension and directed him to release her pension with six per cent interest from the date of her resignation. Despite her ignominious exit, Pushpa Ganediwala will receive her full pension with arrears.
Like the 48th CJI Ranjan Gogoi, who headed the bench that alleged false allegations of sexual harassment were made against him and then accepted a Rajya Sabha nomination from the government, law can be moulded according to the needs of the hour. Pushpa Ganediwala lost her judgeship of the Bombay high court by being hyper-technical in her interpretation of the POCSO Act so that injustice was perpetrated on the hapless minors.
Law, like medicine, is not an exact discipline but is interpreted subjectively according to the exigencies of the situation and the changing ideologies of changing governments.
Olav Albuquerque holds a Ph.D. in law and is a senior journalist-cum-advocate of the Bombay High Court.
