Report No. 266

Regulatory bodies:

17.3 It may be pertinent to compare the composition of Governing Body of the Bar Council of India with other institutions like Institute of Chartered Accountants of India (ICAI), Medical Council of India (MCI), Council of Architects (CoA), etc. The position of the MCI is that there are 17 elected representatives of professionals, 53 elected from educational institutions, 34 Central Government nominees, totaling to 104. The Council of Architects has 5 elected representatives from professionals, 5 elected members from educational institutions, 1 Central Government nominee and 35 State Government nominees. It also contains 5 other nominees, and 2 ex-officio members (from the Central Government). Thus, they have total strength of 53.

17.4 So far as the Chartered Accountants Act, 1949 is concerned, it provides that in the Council of the Institute, there would be not more than 32 persons elected by the members of the Institute and not more than eight persons nominated by the Central Government.

17.5 Recently, the Constitution of the Governing Council of the Indian Law Institute has been changed vide decision dated 8 December 2016 and the number of members of the Governing Council has been reduced to nearly half; and all members of the Governing Council will be either nominated or ex-officio. There is not even a single elected person in the Council.

17.6 Thus, from the above it may be concluded that the composition of the body should be determined on four parameters:

(1) The elected-to-nominated member ratio should be determined based on whether elected representatives from the profession can be expected to function without excessive bias in favour of their colleagues. There may be a majority of nominated members if there is a need to accommodate and have representation of a wide variety of bodies, governmental or technical. However, the ratio must at least be loaded with sufficient nominees where there are essential questions of public interest that cannot be left to members of the profession itself.

(2) The professional-to-lay member ratio should be determined on similar criteria but with greater emphasis towards client welfare and interaction with allied fields, and less emphasis on representation of public bodies.

(3) The identity of the electors and nominators determines the extent of control exercised by groups and bodies over a regulator. Nominations indicate direct control and elections indicate diffused and indirect control. A good practice would be to split seats across different groups to accommodate regional and technical knowledge-based diversity and split seats across bodies so that each body has a say but does not exercise complete control. For this, it is necessary to identify all groups that require representation in the regulatory body and all bodies that need to be given a share of control over the body.

(4) Where a particular public office or department must be given representation in the regulatory body, provision may be made to appoint them ex-officio. However, the body appointing the office-holder may gain further say in the regulator's decisions, depending on the independence of that office.

17.7 The Commission is of the view that the nominated/co-opted members would have a right to participate in all proceedings and to vote therein except on the issue of removal of office-bearers of the Councils.

17.8 Further, in relation to regulatory mechanism, it is necessary to address the mushrooming of bar associations right from the Taluka level, up to the apex bodies also requires a regulatory mechanism including their recognition and control by the bar council. This is obviously coupled with special emphasis of not only controlling the advocates but the collective actions of bar associations that has a local and even a nation-wide implication on issues that are concerned with proceedings of the court and with regard to the organization of lawyers entering into other fields of activities.

Towards this, the measures of punishments, the inclusion of other types of misconducts and the disciplinary control with its effective mechanism, both reformatory and deterrent, deserves to be introduced. This has become necessary as the present law is gradually losing its effectiveness due to lack of appropriate empowerment. The standards of professional ethics and behaviour, the training of lawyers and facets of continuing legal education are other areas as well that require a passionate consideration.

17.9 It is with the aforesaid objective in view that the Law Commission called upon the Bar Council of India to make available its suggestions in particular and upon having received the same, the Commission has deliberated upon the suggestions that have been received from the stakeholders throughout the country that the proposal to reform the Advocates Act has become imperative.

17.10 The Commission, therefore, recommends that comprehensive amendment should be brought forth in the Advocates Act, not only keeping in view the present requirements, but such other requirements that may arise in future for the better management and regulation of the legal profession. The Advocates (Amendment) Bill, 2017 as recommended by the Law Commission is annexed as Annexure-III of the Report for consideration of the Central Government.