Bar Council’s social media rules are regressive. Adopt the reformative approach
The regulator is often caught between the conflicting interests of the judiciary, bar associations across the country and the ministry of law and justice. Proposed regulatory changes by one group are met with severe attacks by other groups or questioned in courts
The Bar Council of India (BCI), the chief regulator of Indian lawyers, is once again embroiled in a controversy. The regulator is often caught between the conflicting interests of the judiciary, bar associations across the country and the ministry of law and justice. Proposed regulatory changes by one group are met with severe attacks by other groups or questioned in courts. The recent amendment to the BCI rules, introduced at the behest of the Supreme Court (SC), is no exception to this rule and has met severe backlash by bar associations.
Representational Image. (Shutterstock)
On June 25, 2021, the BCI issued a notification amending the Bar Council of India Rules via insertion of two novel sections (V and VA) in Part-VI, Chapter II (popularly called the “BCI Social Media Rules”). Failure to observe the newly laid down professional standard would amount to misconduct resulting in disciplinary proceedings. The amendment was made with “a view to maintain and improve the standards of professional conduct and etiquette for Advocates”.
The intention of the amended law, as clarified by the BCI chairman through a press release dated June 30, 2021, is to weed out “black sheeps” (sic) and “undeserving elements” from the Bar who misuse social and electronic media and undermine the reputation of the legal profession in the eyes of the general public.
The amended rules forbid lawyers from doing anything unlawful and from making statements against any court, judge, or bar council in print, electronic or social media which may be “indecent or derogatory, defamatory or motivated, malicious or mischievous”. Moreover, as per the amended rules, lawyers in defiance of any resolution or order of a bar council will also suffer the same fate.
Section V-A similarly prohibits members of bar councils from making any statement, criticising publicly, or publishing a press release in any of the above mentioned formats against any resolution/order/decision of the applicable bar council or the BCI, or use of derogatory or abusive language against bar councils or their office-bearers or members.
Pursuant to disciplinary proceedings, lawyers and members of bar councils found guilty can be amongst other things, suspended, removed from membership, reprimanded, removed from the roll of advocates, or disqualified from contesting elections of any bar association or council. The amendment makes an exception for healthy and bona fide criticism made in good faith.
The challenge
The amended rules have been challenged in SC on grounds of being violative of constitutionally-guaranteed fundamental rights specially equality rights (under Article 14), freedom of speech and expression and to form associations (under Articles 19 (1) (a) and 19 (1) (c)), and the right to life (under Article 21).
In response to the strong backlash, BCI has constituted a committee to review and seek consultations from lawyers and lawyer associations on the said rules. Until a report is submitted by the committee, considered and acted upon, the amended rules have been put on abeyance.
The process of seeking public consultation post-introduction of rules and their abeyance is indicative of poor rule-making regulatory abilities. Moreover, the amendment is problematic, from a regulatory governance perspective that examines not only the correctness of regulatory action but also the appropriateness of tools chosen by the regulatory body to achieve an objective.
If we examine the BCI social media rules through this prism, there are two major areas of concerns.
The possibility of arbitrariness
The first is with regard to compliance and enforcement.
The amendment categorises “indecent or derogatory, defamatory or motivated, malicious or mischievous” speech as professional misconduct. While the meaning of the terms “defamatory” and “obscenity” can be found under law, there is no standard or test for defining or determining “derogatory, malicious and motivated” speech. For example, the law of defamation comprising of libel and slander, is well-defined. Similarly, the test and scope of indecent and obscene content can be found in sections 292 to 296 of the Indian Penal Code and laid down case laws such as the SC’s decision in the case of Ranjit D. Udeshi v state of Maharashtra. Instances of mischievous speech are also defined under section 505 of the IPC.
Usage of vague and undefined terms in law may have the unintended consequence of non-uniform compliance and enforcement of the law, giving rise to arbitrariness in decision-making in the disciplining process of lawyers. Legislative clarity simplifies regulatory burden by ensuring uniform compliance wherein the expectation of the regulator on required standard of conduct is obvious not only to the regulator itself but also to the regulated and the public.
Moreover, given the burden of implementing these standards falls on the multiple state bar councils and their disciplinary committees, without adequate regulatory or judicial guidance, uniform enforcement of the law would be an exercise in boiling the ocean.
Educational versus disciplinary approach
The second concern is related to the choice of regulatory instrument.
The rationale offered in support of the legal profession disciplinary system is that it ensures protection of the community and maintains the integrity of the profession. The disciplinary mechanism cures market imperfections such as information asymmetry, the free rider problem, and externalities. Market imperfections such as external cost to society that may be incurred from unethical conduct or self-serving conduct of lawyers are curtailed by this process.
While the BCI’s intention to reform the standard of the profession by taking unethical lawyer behaviour on social media seriously is to be applauded, the behaviour can be modelled through practices that are educational in nature vis-à-vis the disciplinary mechanism approach currently adopted.
Many bar authorities in foreign Common Law jurisdictions have issued ethical guidelines to direct lawyers’s use of social media. The New York State Bar Association for example, has advised lawyers on a range of matters relating to online behaviour such as maintenance of client confidentiality, avoidance of false and misleading statements and mindful use of social media and online commentary that may have a bearing on professional reputations.
Similarly, the Law Institute of Australia’s Guidelines on Ethical Use of Social Media, that have been endorsed by Australian professional regulators such as the Victorian Legal Services Board and Commissioner, advice lawyers to ensure that their statements expressed online do not amount to contempt of court or make adverse or demeaning comments about judicial officers and fellow members of the legal profession as those could diminish public confidence in the administration of justice.
While guidelines may be unenforceable, their purpose is to educate and guide behaviour of regulated persons. They are easier to communicate and impose a lesser burden on regulatory capacity. The use of social media by the legal profession is a recent phenomenon and legal profession regulators around the world are still grappling to comprehend its merits and demerits.
BCI must therefore educate lawyers on its ethical use rather than impose disciplinary sanctions for vague, undefined reasons with possibility for arbitrariness in decision-making. Punishment for misconduct without education would be a regressive than a reformative regulatory step.
Dakshina Chandra is a fellow at the Regulatory Governance Project, National Law School of India University, Bengaluru, conducting research in the field of regulatory governance. She has a Ph.D. from Deakin University School of Law, Australia on regulation of the Australian legal profession
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