Bar Council shows its colours

 In this age of 24/7 news, there are only a few institutions which have managed to escape any kind of scrutiny or public criticism. The Bar Council of India (BCI) was one such institution until a few weeks ago when Legally India, a news portal covering the legal profession, published a story exposing some prima facie dodgy dealings by the BCI while awarding a tender for the conduct of the ‘bar exam’ written by thousands of law graduates looking to enrol as advocates. The BCI promptly responded with a weak notice for defamation.

Before explaining the tussle, let’s have a brief introduction about Legally India, the news portal founded in 2009 by Kian Ganz, a lawyer turned legal journalist. Of the several legal news portals that have cropped up over the last decade, Legally India has developed a reputation for being fearless (and at times cheeky) and for pushing the boundaries of legal reporting in India.

The most memorable cheeky story was the publication of the pixelated photograph of Justice Swatanter Kumar after the infamous gag order of the Delhi High Court restraining the media from publishing his photograph in stories related allegations of sexual harassment against the judge. That publication invited a menacing notice from the judge’s lawyer but eventually no action was taken against Legally India.

Coming back to the present case, the ball got rolling with the publication on May 19, 2015 of a story on the mysterious award of a tender for the ‘bar exam’ in 2012 to a company called ITeS Horizon. The story was based mostly on the ‘minutes’ of the BCI meetings where the tender was discussed. Those ‘minutes’ had been released by the BCI to Legally India under the RTI Act, after several attempts to stonewall the request for information.

The entire story chronicled the bids put in by the initial four competitors and the later controversial bid by ITeS, which was eventually, awarded the tender. By any standard of reporting, the  Legally India story was well-researched, rigorous, and provided the reader with copies of the primary material used in the article.

By itself, the story did not allege corruption against either BCI or ITeS although a simple narration of the facts as presented indicates that there was something wrong in the manner in which the tender was awarded. The story was also peppered with disclosures informing the reader that several of the unsuccessful bidders were advertisers with Legally India and also that Legally India itself had commercial interests in a bar exam preparation service called the Bar Hacker.

Within two days of the story being published online, on May 21, the Chairman of the Bar Council of India, Manan Kumar Mishra sent a six page notice of defamation to Legally India with copies marked to 147 other recipients including the President, the Prime Minister of India, Supreme Court judges, High Court judges, journalists etc.

The legal notice alleged that Legally India was out to defame the BCI because of its own commercial interests in the bar examination. Almost the entire notice is based on the premise that Legally India was a part of Rainmaker, one of the bidders for the tender.

Not surprisingly, the BCI’s notice did not point out any factual inaccuracies in the story, focussing instead on defending its own actions and imputing motives to Legally India – a classic case of shooting the messenger.

The BCI’s defamation notice was promptly published by Legally India on the same day, along with a commitment to publish its reply to the notice after receiving legal advice.

About 10 days later, on May 31, before Legally India could respond to the ‘defamation notice’ the BCI Chairman sent another letter to Legally India written in SMS lingo. Unlike the defamation notice which threatened legal action, this letter was reconciliatory in its tone and tenor.

After earlier accusing Legally India’s founder, Kian Ganz, of being a foreign agent who was in India only to push the agenda of foreign lawyers keen on entering the Indian market, the letter promises Legally India that there has been a ‘sea change’ in the BCI’s policy towards foreign lawyers entering the Indian market and that the BCI was willing to give Legally India details of an upcoming visit by the BCI to foreign countries to iron out the issue of foreign lawyers entering India.

The promise of the carrot of ‘access’ to a story came along with the rider that Legally India must behave itself by playing the role of ‘responsible’ media and change its ‘negative attitude’.

The ploy clearly didn’t work since Legally India struck back with a 30 page reply, along with over 200 pages of annexures demanding an apology from the BCI for alleging incorrectly that Legally India was a part of Rainmaker. Legally India has denied that it is a part of Rainmaker.

Far from retreating in its reply to the defamation notice, Legally India used its reply as an opportunity to expand on its initial story, digging deeper and throwing even more pointed questions at the BCI and its Chairman. 

The next chapter of this story is yet to be written but it is interesting and also depressing to see BCI’s warning in its original legal notice that Legally India’s “registration/licence to run any media is liable to be cancelled” since it was “misusing” its “licence”.

The first problem with that sentence is that the Chairperson of the BCI, an institution meant to regulate the entire legal profession in India, doesn’t even know that an online news portal like Legally India doesn’t need a licence to run its website.

The second problem is the ease with which the Chairperson has threatened Legally India with a shutdown on the mere allegation of defamation. For all the faults of Indian lawyers, there is no doubt that it is Indian lawyers who have protected the spine of fundamental rights in this country so how did the Bar Council of India vote as its Chairperson a man who clearly has little understanding of, or respect for, the freedom of the press?

If this is going to be the attitude of the BCI to criticism, how are we ever going to have any accountability or reform in the way the legal profession is regulated, a task which is at the core of legal reforms in India?

(The writer is a Delhi based lawyer. He occasionally writes for Legally India).

 

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