Dr Vikas Sharma
1. Stricter Disciplinary Actions Against Advocates
- Original Concerns:
- Perceived attack on the right to protest.
- Fear of arbitrary or excessive punishment.
- Concerns about due process.
- Proposed Changes for Better Acceptability:
- Clear Definition of “Misconduct”: Instead of broad terms, provide a detailed, exhaustive list of specific actions that constitute professional misconduct. This removes ambiguity and reduces the risk of arbitrary application.
- Tiered Disciplinary System: Implement a system with graduated penalties based on the severity of the offense. Minor infractions could result in warnings or mandatory continuing legal education, while severe misconduct would warrant suspension or revocation.
- Independent Disciplinary Tribunals: Establish independent tribunals composed of retired judges, senior advocates, and ethical experts to handle disciplinary cases. This ensures impartiality and reduces the perception of government overreach.
- Robust Due Process: Guarantee the right to a fair hearing, including the right to present evidence, cross-examine witnesses, and appeal decisions.
- Mediation and Dispute Resolution: Introduce mediation and dispute resolution mechanisms for minor grievances before resorting to formal disciplinary proceedings. This can help resolve conflicts amicably and reduce the burden on disciplinary bodies.
- Protected Protest: Explicitly state that peaceful protests conducted within reasonable boundaries do not constitute professional misconduct. Define reasonable boundaries, and ensure that the definition protects the right to protest.
- Focus on Education: Prioritize educational measures to prevent misconduct, such as mandatory ethics training and workshops on professional conduct.
2. Inclusion of Foreign Law Firms & Lawyers
- Original Concerns:
- Uneven playing field for Indian advocates.
- Domination of the legal market by foreign firms.
- Erosion of the traditional legal framework.
- Proposed Changes for Better Acceptability:
- Reciprocity Agreements: Allow foreign law firms to operate in India only if Indian law firms are granted reciprocal access to those countries’ legal proceedings..
- Limited Scope of Practice: Restrict the areas in which foreign law firms can operate, focusing on specialized areas like international commercial arbitration or intellectual property law, where Indian expertise may be limited.
- Mandatory Joint Ventures: Require foreign law firms to establish joint ventures with Indian law firms, promoting knowledge transfer and collaboration.
- Local Employment Requirements: Mandate that foreign law firms employ a certain percentage of Indian lawyers and legal professionals.
- Strict Regulatory Framework: Implement a robust regulatory framework to ensure that foreign law firms comply with Indian legal ethics and professional standards.
- Phased Implementation: Introduce the inclusion of foreign law firms in a phased manner, allowing Indian advocates time to adapt and compete.
- Protection of traditional legal practice: Ensure that traditional, local legal practices are protected, and that the new laws do not negatively impact those practices.
3. Greater Governmental Oversight of Bar Councils
- Original Concerns:
- Undermining the independence of bar councils.
- Government interference in legal matters.
- Weakening the self-regulatory mechanism.
- Political bias.
- Proposed Changes for Better Acceptability:
- Independent Oversight Body: Instead of direct government nominees, establish an independent oversight body composed of retired judges, legal academics, and eminent citizens to review the functioning of bar councils.
- Performance-Based Accountability: Implement a system of performance-based accountability for bar councils, with clear metrics for efficiency and transparency.
- Enhanced Transparency: Require bar councils to publish detailed reports on their disciplinary proceedings, financial management, and other activities.
- Strengthening Existing Self-Regulation: Rather than governmental oversight, provide funding and resources to strengthen the existing self-regulatory mechanisms of bar councils.
- Advisory Role: If government representation is deemed necessary, ensure that government nominees serve in an advisory capacity only, without voting rights in disciplinary matters.
- Focus on improving Bar council infrastructure: Provide funding and resources to modernize the infrastructure of the bar councils, so that they can effectively handle their responsibilities.
- Clear guidelines for government interaction: If there is to be government interaction with the bar councils, those interactions must be clearly defined in the law, and be very limited.
By adopting these changes, the Advocate Amendment Bill 2025 can address the government’s concerns while respecting the independence and professional integrity of advocates.