The Selective Battles Of Bar Council Of India-II

Manu Sebastian
30 Jun 2018 12:09 PM GMT
The Selective Battles Of Bar Council Of India-II
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The BCI ought to do more ground check before making tall claims for 99.9%, because most discerning members of the bar do not wish to be counted in that 99.9%.

The Bar Council of India (BCI) seems like a sleeping leviathan which springs into action only to wage its “selective battles”.  During April it had come up with a resolution—semantically flawed and conceptually confused, against lawyers who intended to move an impeachment motion against the CJI, which was commented upon in an earlier article entitled The Selective Battles of Bar Council”.  A sequel to that article is called for as the BCI has issued another press release—also semantically flawed and conceptually confused. This time, the BCI has chosen to target a judge, after his retirement. The press release by the BCI criticised Justice Chelameswar for certain remarks, which the BCI felt he made, during his post-retirement interview given to Rajdeep Sardesai of India Today.

The haste and carelessness with which the press release was issued are evident from the fact that the BCI got the name of their subject altogether wrong. The press release refers to “Justice Chemaleshwar” (whoever that is), and it is repeated throughout in it (of course, these are the days of Ctrl+C+V). No, this is not an attempt at nitpicking. This glaring error is symptomatic of the casualness with which the press release was issued. The press release condemns Justice Chelameswar for using words like “bench fixing”, whereas there was not even a single utterance of the word by him during the interview. The term was used by India Today’s Consulting Editor Mr. Rajdeep Sardesai, and in response, Justice Chelameswar had repeatedly and expressly refused to use words such as “bench fixing”. The BCI should have taken care to see that somebody who actually watched the interview drafted the press release.  Responding to the press release, Justice Chelameswar took a jibe at the BCI that they could not even spell his name correctly and said, “I really don’t have time to react to every person. They even alleged that I had alleged “bench fixing” in an interview with a television news channel. It was the person interviewing me who said that. I only replied to that. I told him that we really we really don’t have to go to the extent of calling it that, but yes, the situation is certainly of concern. But if the BCI attributes to me words I didn’t say, there is nothing I can do about that. The BCI, in its press release, could not even spell my name properly. Some of them will one day become judges.”

The BCI also indirectly accused Justice Chelameswar of bench-fixing, when it states: “Such instances have been repeated not once but on two-three occasions. Justice Chelameswar did not do so and, in fact accepted and agreed to hear certain matters himself which led to the beginning of a wrong practice. Had such irregular or unlawful orders been sought to be set aside by the Chief Justice of by some other judge then there would have been no harm done”. Obviously, the reference is to the proceedings in ‘medical bribery case’, where the bench headed by Justice Chelameswar ordered SIT inquiry regarding corruption allegations in the Prasad Education Trust case. Since the bribery allegations were with regard to a case disposed of a bench led by the CJI, the mentioning was made before the bench headed by Justice Chelameswar, the second senior judge. Terming the allegations “grave and serious”, the matter was referred to be decided by a bench constituted by five senior-most judges, excluding the CJI. On November 10, the very next day, this order passed by the two-member bench headed by Justice Chelameswar was annulled by a hurriedly constituted constitution bench led by the CJI, in a raucous hearing session marred by an unprecedented drama. The Bar Council does not see anything unusual or extraordinary in the hasty manner in which the constitution bench was constituted and conducted. It also did not come across as impropriety to the BCI that the CJI chose to constitute a bench, including himself, to hear a case concerning himself. The BCI has not issued any statement regarding the corruption allegations unravelled by the arrest of former Orissa HC judge Justice IM Quddussi. The BCI acts like an ostrich in the sand when it comes to corruption allegations in the judiciary. The BCI does not respond when lawyers get attacked and killed in court premises. There is no similar press release when human right lawyers are persecuted by the establishment. The legal education scenario is in shambles and persons with fake degrees have infiltrated the profession. But the BCI seems unconcerned. If only the BCI addressed other pressing issues affecting the legal profession with the same zeal shown to lecture a retired judge on propriety!  This is another instance of disoriented activism shown by the BCI after it came up with a report justifying the demand for CBI probe by the accused in the Kathua rape-murder case, when it was actually deputed to inquire into alleged acts of violence by lawyers in Jammu which obstructed the filing of charge-sheet in the case!

The veiled criticism made to the press conference of judges at Justice Chelameswar’s residence last January is inopportune and out of place. Why has the BCI waited till the retirement of Justice Chelameswar to comment on the press conference? The BCI tries to impute political motives for the press conference by stating that Justice Chelameswar met CPI leader D Raja immediately after it. These are sorry attempts to skirt the central issues. The BCI has not made any meaningful attempt till date to objectively probe and analyse the issues raised in the conference. Instead, it raises the shield of propriety to bury the issues.  Propriety amounts to a virtue only when situations are in order; otherwise, it is just an excuse.

The most startling part of the press note is when the BCI states: “it is the great fortune of the country that 99.9 of the legal fraternity and the judges have seen through this ulterior motive and mindset and such people who have attempted to bring disrepute to the institution for their vested interests, disrepute to the institution for their vested interests, have had to suffer a setback at each step(emphasis supplied). As BCI is largely known for its omissions than actions, this statement is most noticeable for its conspicuous omission after the figure 99.9.

Well, the statement deserves criticism not just because it’s made without an elementary proof-check, but because of being outlandishly baseless. It takes a lot of brazenness for the BCI, which is not a representative body at present, to make an outstanding claim on behalf of 99.9% of the legal fraternity. The BCI ceased to be representative long ago. The much-delayed elections were held during last March, after a lot of litigation in the Supreme Court. Even though elections are over, the new Council is yet to be constituted. The present Council is continuing on default, akin to a care-taker government, and hence cannot claim to enjoy majority support.

99.9 is a magical figure, commonly used in advertisements to mark success rate of products like disinfectants. 99.9 denotes the vanquished, silenced and beaten (even demonetisation claimed to have wiped out 99.9% notes). The BCI ought to do more ground check before making tall claims for 99.9%, because most discerning members of the bar do not wish to be counted in that 99.9%.

Manu Sebastian is a lawyer practicing at High Court of Kerala.

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