Excerpt
The Kerala High court heard a petition filed by Advocate Rajesh Vijayan, a member of the Kerala Bar Council challenging amendment of Bar Council of India Rules whereby sections V and V-A have been inserted in violation of the freedom of speech and expression and other fundamental rights of both Advocates and Bar Council members.
Facts
The Petitioner filed this Writ Petition aggrieved by the addition of Section V and Section V-A to Chapter II of Part VI of the BCI Rules, which has the effect of, inter alia, prohibiting criticism and dissent against the BCI and other Bar Councils, and demanding unquestioning acceptance of all decisions taken by them. It is submitted that these newly added rules infringe the constitutionally protected freedom of speech and expression of Advocates and Bar Council members. The Petitioner’s rights as an Advocate and as a member of the Bar Council of Kerala are curtailed by the addition of Section V and Section V-A to Chapter II of Part VI of the Bar Council of India Rules. He filed this Writ Petition under his capacity as an Advocate whose rights are affected and also under his capacity as an elected member of the Bar Council of Kerala whose rights are also affected. He is personally aggrieved by both Sections V and V-A. The rules suffer from the vice of vagueness and consequently create an indisputable effect on public engagement and participation by Advocates. They blatantly violate the decisions of the Hon’ble Supreme Court which have laid down the legally permissible restrictions on free speech and expression. They also prescribe a procedure for proceeding against Advocates and Bar Council members which violates the basic principles of natural justice. By publishing them in the Gazette of India, an attempt is being made to inhibit the exercise of free speech and expression by Advocates and Bar Council members, even though the statutorily mandated procedure for giving effect to such rules has not been fulfilled.
Arguments
It is submitted that Sections V and V-A are unconstitutional and illegal. The vague and subjective standards adopted to determine what is permissible speech violate the Petitioner’s rights under Part III of the Constitution and also fly in the face of the decisions of the Hon’ble Supreme Court of India. The demand for unquestioning agreement with the decisions of the Bar Councils is also a violation of the Petitioner’s constitutional rights. Terms such as ‘healthy criticism’, ‘undermining the dignity of Bar Councils’, ‘motivated statement’, ‘attacking decisions’, ‘derogatory words,’ etc. have no specific or clear definition/meaning in law. None of these terms has been given any definition. Terms such as these are highly subjective and consequently prone to misuse. Whether or not a statement is ‘healthy’, ‘attacking’, ‘undermining’, ‘derogatory,’ etc. is a matter of subjective opinion that varies from individual to individual. In addition to vagueness, they also use terms that are unreasonably wide and open-ended. Even the dictionary definitions of these terms do not clarify what exactly is sought to be penalized by the sections. In Shreya Singhal v. Union of India reported in (2015) 5 SCC 1, the Hon’ble Supreme Court struck down Section 66-A of the Information Technology Act. It was held that the expressions used in Section 66-A were unconstitutionally vague and without a clear demarcation line as to what constituted an offence and what did not. This was because of the subjective and overbroad nature of the expressions used, with different people having different understandings of the meanings of these expressions. Prohibiting or disincentivizing discussions on important issues is anathema to a democracy. Section V-A says that Bar Council members shall not publish or state anything against any resolution or order of the Bar Councils and shall also not criticize or attack the decisions of Bar Councils in the public domain. It’s a grave violation of the fundamental freedom of speech and expression enjoyed by Advocates and BCI members. Even constructive criticism or polite disagreement or academic disagreement with decisions of the Bar Councils is not permitted. This is an unreasonable and total restriction of the fundamental right of free speech and expression of Advocates and Bar Council members, and it does not fall within any of the types of reasonable restrictions specified in Article 19 (2) of the Constitution.
Court’s observations
It was observed in the petition that these rules prescribe a procedure for proceeding against Advocates and Bar Council members which violates the basic principles of natural justice. By publishing them in the Gazette of India, it was alleged to be an attempt to inhibit the exercise of free speech and expression by Advocates and Bar Council members, although the statutorily mandated procedure for giving effect to such rules has not been fulfilled. Additionally, the petition highlighted that Section V-A prescribed a procedure for declaring an Advocate or Bar Council member as disqualified to contest the elections of any Bar Association or Bar Council. However, in this procedure, it has been stated that the BCI shall take its decision after consideration of the report of the Committee. This implies that the final decision is made by the BCI itself, which was condemned by the Petitioner. Furthermore, it was submitted that the first proviso to Section 49 (1) of the Advocates Act mandated that no rules made with reference to Section 49 (1) (c) shall have effect unless they have been approved by the CJI. However, the said notification does not disclose if any approval from the CJI has been obtained for Section V. At the outset, without fulfilling this statutory requirement, Section V cannot be given effect. However, the impression that has been widely reported and conveyed in the legal and general media is that with the publication of the said notification in the Gazette of India, the newly introduced Sections have come into operation. The petition also expressed grave concerns given the drastic penalties that have been prescribed. It was submitted that in the absence of certainty as to whether or not Section V is currently in effect, it is likely that many persons will exercise self-censorship, thus leading to a classic case of violation of free speech and expression. On these grounds, the petition sought to declare the aforementioned provisions unconstitutional and illegal. It was argued that the vague and subjective standards adopted to determine what is permissible speech violate the Petitioner’s rights under Part III of the Constitution and also deviate from the decisions of the Apex Court. The Petitioner also submitted that the demand for unquestioning agreement with the decisions of the Bar Councils is also a violation of his constitutional rights. It was prayed that the Court issue a writ of mandamus or any other direction.
Court’s decision
The court granted an interim degree by staying the operation of Sections V and V-A of Chapter II of Part VI of the Bar Council of India Rules. Restraining the Respondents from taking any coercive action under Sections V and V-A of Chapter II of Part VI of the Bar Council of India Rules, until the approval of the Hon’ble Chief Justice of India under the first proviso to Section 49 (1) of the Advocates Act, 1961 has been obtained.
Libertatem.in is now on Telegram. Follow us for regular legal updates and judgment from courts. Follow us on Google News, Instagram, LinkedIn, Facebook & Twitter. You can subscribe to our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.
