Proposed Amendments to the Advocates Act: Eroding Professional Independence and Justice

 The proposed amendments through The Advocates (Amendment) Bill,2025 to the Advocates Act, 1961, warrant serious scrutiny as they threaten the independence and autonomy of the legal profession. While legislative reforms should aim to strengthen legal ethics and accountability, these amendments, if enacted, will compromise professional self-regulation, restrict fundamental rights, and increase executive interference in the legal profession, further may become detrimental to growth of legal professionals in India. These proposed amendments is in furtherance of the backdoor move by the Bar Council of India (BCI), on March 15, 2023, allowing foreign lawyers and law firms to practice foreign law in India. The development was announced through Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 (BCI Rules), enabling international lawyers and arbitration practitioners to advise in India, and went unnoticed to due camouflaged the way it was done. However, the new proposed bill, removes that veil and in case these proposed changes are not rolled back, they would be against the independence and swadeshi nature of legal professionals and the gradual shift to give in foreign lobbying would be a step towards putting national interests on the back burner. 

This analysis highlights key legal and constitutional concerns surrounding the proposed changes:

1. Expansion of "Legal Practitioner" Definition: Diluting Advocacy and Creating Ethical Conflicts

The proposed expansion of Section 2 to include corporate lawyers, in-house counsels, foreign law firms, and legal professionals in private and public organizations under the definition of "legal practitioner" is legally problematic.

• The legal profession is historically distinct in its advocacy function. In re Sanjeev Datta (1995), the Supreme Court emphasized that advocates hold a fiduciary duty to the court and the justice system, which is distinct from advisory or corporate legal work. Including corporate lawyers and in-house counsels, who primarily serve commercial interests, under the same regulatory framework risks ethical conflicts.
• The Bar Council of India v. A.K. Balaji (2018) ruling reaffirmed that foreign law firms cannot practice Indian law unless specifically permitted. The proposed amendment could indirectly circumvent this ruling, allowing foreign entities undue advantage over Indian practitioners.
• By equating non-litigating lawyers with practicing advocates, the amendment dilutes the professional obligations uniquely placed on court advocates, including adherence to the Advocates Act, 1961 and Bar Council of India Rules.

2. Mandatory Bar Association Registration: A Bureaucratic Barrier to Legal Practice

The insertion of Section 33A requiring all advocates to register with a Bar Association where they primarily practice imposes excessive restrictions on professional mobility.

• The Supreme Court Bar Association v. Union of India (1998) emphasized the role of the Bar as an independent self-regulatory institution. Forcing location-based registration contradicts the dynamic nature of legal practice, where advocates often appear before multiple courts.
• Limiting voting rights to a single Bar Association curtails an advocate’s participation in multiple legal forums, weakening democratic engagement within the profession.
• This is in contrast to process of democratic elections, even for electing our public representatives we cast votes several times for different level of elections, therefore a similar approach would have been more appreciate, for example, an advocate if member of the several bar associates, can cast vote in one District/forum, one at High Court and one at the apex court that is Supreme Court. 

3. Ban on Strikes and Court Boycotts: Violating Lawyers' Right to Protest

The introduction of Section 35A, which criminalizes strikes and boycotts, severely restricts an essential tool of collective action in the legal profession.

• The Supreme Court in Harish Uppal v. Union of India (2002) held that lawyers do not have an absolute right to strike but recognized that in exceptional cases, boycotts have historically played a role in upholding judicial independence and professional rights.
• Banning all forms of strike action and classifying them as "misconduct" violates Article 19(1)(a) of the Constitution, which guarantees freedom of speech and expression. This amendment ignores the precedent set in K.K. Dutta v. Union of India (1980), where the Court acknowledged the role of organized protest in shaping legal and administrative reforms.
• While disruptions to court proceedings must be minimized, an outright ban disempowers the legal community from raising concerns over systemic issues such as judicial appointments, procedural inefficiencies, and access to justice.

4. Government Oversight and Regulation: An Unconstitutional Overreach

The proposed amendments granting increased governmental control over the Bar Council of India (BCI) are deeply concerning.

• Section 4, which allows the Central Government to nominate three members to the BCI, compromises the independence of the legal profession. The Supreme Court Advocates-on-Record Association v. Union of India (2015) reaffirmed that professional self-regulation is fundamental to preserving judicial autonomy. Allowing executive nominees in the BCI threatens this principle.
• Section 49B, which empowers the government to issue directions to the BCI, violates the doctrine of separation of powers enshrined in Article 50 of the Constitution. The Supreme Court has repeatedly held that executive interference in professional regulatory bodies undermines institutional integrity (Lalit Mohan Das v. Advocate General of Orissa, 1957).
• By granting the government discretionary authority to regulate the profession, this amendment risks politically motivated interference in disciplinary actions, professional ethics, and legal education.

5. Verification and Professional Oversight: Risk of Misuse and Unequal Competition

While periodic verification of credentials under the proposed amendments may seem administratively sound, excessive governmental oversight could lead to selective enforcement and harassment of lawyers engaged in sensitive litigation.

• In Indira Jaising v. Supreme Court of India (2017), the Supreme Court emphasized the need for a fair and transparent regulatory process for lawyers. Any verification mechanism must be overseen by an independent body rather than an executive-controlled agency.
• The provision allowing foreign law firms into India under Section 49A without adequate safeguards risks an uneven playing field. Bar Council of India v. A.K. Balaji (2018) upheld that foreign lawyers can only practice on a reciprocal basis. Any regulatory changes must maintain this balance to prevent market domination by multinational law firms at the cost of Indian advocates.

Conclusion: A Fundamental Threat to Legal Independence

The proposed amendments represent an excessive expansion of state control over the legal profession, restrict fundamental rights, and risk diluting the integrity of advocacy in India.

• The independence of the Bar is central to the justice system. The Supreme Court has consistently upheld the necessity of a self-regulated, autonomous legal profession to ensure unbiased legal representation.
• The imposition of bureaucratic hurdles, restrictions on professional protest, and executive control over the BCI threaten the foundational principles of advocates' self-regulation and judicial independence.
• The legal profession must remain free from excessive governmental oversight to function as a check against executive overreach and safeguard democratic governance.

The proposed amendments must be reconsidered in consultation with legal experts, Bar Associations, and the judiciary to ensure reforms serve the true interests of justice rather than erode professional autonomy. Any legislative changes must align with constitutional principles, historical judicial precedents, and the long-standing independence of the Bar.

Legal fraternity and civil society must oppose these amendments to preserve the dignity, integrity, and independence of legal practice in India.

Remember the famous poem by Martin Niemöller:

First they came for the Communists, And I did not speak out —
                    Because I was not a Communist.
Then they came for the Socialists, And I did not speak out—
                    Because I was not a Socialist.
Then they came for the trade unionists,   And I did not speak out—
                    Because I was not a trade unionist.
Then they came for the Jews, And I did not speak out—
                    Because I was not a Jew
Then they came for me — And there was no one left to speak out for me.

While our current bar leaders are understandably focused on the upcoming elections, it falls to each of us to rise to this critical moment. We must all take responsibility, look truth in the face, and guide those in power toward the path of justice and righteousness.