Supreme Court questions BCI chief’s 5-year tenure, orders oversight of policy decisions by AGI, SGI

The Supreme Court on Wednesday questioned the legal basis for the five-year tenure of Bar Council of India (BCI) chairperson Senior Advocate Manan Kumar Mishra, while paving the way for the reconstitution of the apex body once the newly elected State Bar Councils complete the statutory process.

A bench headed by Chief Justice of India Surya Kant, along with Justices Joymalya Bagchi and V. Mohana, was hearing pleas challenging Mishra’s continued occupation of the BCI chairperson’s post and the purported extension of his tenure until 2030.

The Court said it would take up the question of reconstituting the BCI after the newly elected State Bar Councils complete the process required under the Advocates Act, 1961.

As part of the process, the bench directed the Chief Justices of the jurisdictional High Courts to complete the pending co-option of women members to the State Bar Councils within two weeks.

The Councils will then have one week to notify their final composition, followed by another two weeks to complete the remaining statutory steps under Section 4(1)(c) of the Advocates Act and submit compliance reports.

“Upon receipt of these compliance reports, we shall consider the issue concerning the reconstitution of the Bar Council of India under Section 4 of the Advocates Act, 1961,” the Court said.

Until an elected BCI is constituted, the Supreme Court allowed the existing arrangement to continue for day-to-day functioning.

However, it put in place an oversight mechanism for policy decisions, directing that the Attorney General for India (AGI) and Solicitor General for India (SGI) be actively associated with every such decision.

“Both the Attorney General for India and the Solicitor General for India shall be actively associated with every policy decision taken by the Bar Council of India,” the Court said.

BCI counsel Senior Advocate Guru Krishnakumar agreed that policy decisions would be placed before the Attorney General and that he would be invited to participate in meetings dealing with such matters. Justice Bagchi observed that continuation under the proviso to Section 4(3) could operate only for day-to-day functioning until an elected BCI is constituted.

At the heart of the challenge is the legality of Mishra’s five-year tenure. Senior Advocate Madhavi Divan, appearing for the petitioners, challenged an April 21, 2025 notification that purportedly prescribed a five-year tenure for the BCI chairperson and vice-chairperson.

Divan argued that the notification did not identify any statutory provision authorising such an extension and submitted that it effectively defeated the Court’s exercise concerning the BCI elections.

She also referred to the minutes of the BCI General Council meeting held on March 2, 2025.

According to the minutes, Mishra was unanimously elected chairperson for a tenure beginning April 17, 2025 and ending April 16, 2030.

The bench questioned the basis of this five-year tenure in light of Rule 12(2) of the BCI Rules, which prescribes a two-year tenure for the chairperson and vice-chairperson.

Divan further referred to a January 9, 2025 BCI resolution that purported to increase the tenure from three years to five years. She argued that a resolution of the BCI could not override its statutory Rules.

Senior Advocate CU Singh submitted that the April 2025 notification had been specifically challenged in the petitions. Senior Advocate Sanjay Hegde, meanwhile, pointed to the BCI resolution’s contention that there was no express or implied restriction in the Advocates Act preventing the Council from determining or extending the tenure of its office-bearers.

The petitioners also questioned the manner in which the proviso to Section 4(3) of the Advocates Act was being invoked.

The provision allows members to remain in office until their successors are elected. Divan argued that a provision meant to prevent an administrative vacuum was instead being used to prolong tenures and avoid fresh elections.

The Chief Justice observed that the completion of the State Bar Council elections had changed the circumstances and that the statutory mechanism for constituting the BCI should now be given effect.

The Court noted that representatives elected by the State Bar Councils would form the electoral basis for the BCI’s own office-bearers.

“Once elections have taken place, the newly constituted State Bar Councils are expected, required and statutorily obligated to exercise their prerogative under Section 4(1)(c) and elect their representatives to the Bar Council of India,” the Court said.

Justice Bagchi observed that, prima facie, the present chairperson could continue only until a fresh BCI election takes place.

The proceedings also turned attention to the institutional and financial affairs of trusts associated with the BCI. Senior Advocate Gopal Sankaranarayanan challenged the creation of the BCI’s PEARL Trust in 2020, particularly the provision describing 11 managing trustees as original and permanent trustees irrespective of their tenure as BCI members.

He argued that the trust was created using BCI assets and questioned how individuals could continue to control such assets after ceasing to be members of an elected statutory body.

The Court questioned whether an elected BCI could create a trust using the assets of the statutory body and designate individuals as permanent trustees even after the elected body’s composition had changed.

Sankaranarayanan sought a high-level investigation into the affairs of the BCI trusts, including their financial records. Senior Advocate Shobha Gupta also raised concerns over the concentration of power and financial management.

The CJI, however, made it clear that the Court’s focus would remain on the institutional framework rather than individual allegations.

“We are not going to be influenced by allegations. We are examining the institution and not particular individuals,” the CJI remarked.

The bench also took note of the pending co-option of women members to the State Bar Councils. Earlier directions provide for 30% representation of women, with 20% through direct election and 10% through co-option.

Under its August 4, 2026 order, the Court had directed the Chief Justices of the jurisdictional High Courts to nominate two women members, preferably former women judges of the concerned High Court or senior women members of the Bar, in consultation with the newly elected members.

The Supreme Court will consider the reconstitution of the BCI after receiving the first compliance reports and has listed the matter after two weeks.

(with ANI inputs)