On the eve of Indian Independence Day, the reminder issued by Justice RH Jackson in the United States feels unusually close to home. “Freedom to differ is not limited to things that do not matter much,” he said.

Universities are supposed to be institutions where that freedom is exercised vigorously – law universities especially so. Students are trained to question power and ask institutions to justify what they do. That makes the controversy that exploded at NALSAR University of Law in Hyderabad this week especially ironic.

On Thursday, a series of events that had started with an internal representation by graduating students objecting to a proposal to invite the chief justice of India to be the chief guest at their convocation prompted an action that was completely arbitrary.

The invitation to Justice Surya Kant had been opposed because of his reported response to a petition about alleged police brutality against young protesters marching to Parliament in Delhi on July 20. On July 22, a bench headed by Kant refused to urgently hear the petition. “Don’t waste our time and don’t waste your time,” Kant reportedly said.

On Thursday, Manan Kumar Mishra, the chairperson of the Bar Council of India directed state bar councils not to enrol any NALSAR students graduating in 2026 and sought details of those who had drafted, organised, supported or advised the campaign.

The Bar Council of India regulates the legal practice and legal education in the country. Holders of law degrees who wish to appear as advocates before Indian courts must be enrolled by state bar councils.

Mishra’s order prompted an outcry, forcing the Bar Council to modify it within hours. First, the blanket ban on enrollments was withdrawn, though the Bar Council asked NALSAR officials to submit a report within three days about the persons involved in mobilising the “organised campaign” against the invitation to the chief justice.

But early on Friday morning, even this caveat was cancelled.

Though the controversy was resolved speedily, it leaves important questions. Why did a student representation to university officials come to attract the coercive attention of a professional regulator? Where does the line lie between regulating the legal profession and governing university life?

When disagreement becomes a dossier

The most troubling feature of the episode was not merely the breathtaking disproportionality of threatening the enrolment of an entire graduating batch, but the scope of the inquiry itself.

The Bar Council of India sought to identify those who drafted the representation, circulated it, organised meetings, mobilised participation, communicated with the press and administered social-media groups. It also drew teachers, alumni, research scholars and “outside persons” into the inquiry.

But these actions are not categories of misconduct. They are all protected by the Constitution, which guarantees the rights to free speech and association.

Drafting a representation is speech, gathering support is association and speaking to a journalist is expression. If there was intimidation, coercion, threat, obstruction or another independently unlawful act, the misconduct would have to be identified and proceeded against under the applicable law.

Organisation does not become suspicious merely because the opinion being organised around is inconvenient to the authorities.

That distinction lies at the heart of Shreya Singhal v Union of India, where Justice Rohinton Nariman separated discussion, advocacy and incitement, placing discussion and advocacy at the core of Article 19(1)(a) of the Constitution.

In the NALSAR episode, the danger was magnified because the entity asking for names of organisers also controls a professional gateway. In this case, even an inquiry could chill speech long before a punishment is imposed.

Mishra’s final statement does not entirely solve this problem. It says the batch was cleared because the Bar Council was satisfied that students had “no role in any disturbance or movement” – as though participation in the movement was itself something requiring exoneration.

The real question should have been whether participation in such a campaign could ever amount to professional misconduct within the Bar Council’s jurisdiction.

Not a campus government

Regulation of professional standards is not synonymous with governing every institution that teaches the profession. In March 2025, while dismissing the Bar Council’s challenge to a Kerala High Court order concerning two law students, a Supreme Court bench that included Justice Surya Kant orally remarked that the council had “no business” going into legal education and that it should be left to jurists and legal academicians.

The observation was not part of the court’s formal order and the question of law it related to was expressly left open, but its underlying institutional concern is difficult to miss in the present controversy.

There is a basic distinction between regulating legal education, determining eligibility to join the Bar and disciplining perceived misconduct within a university. While the Advocates Act creates a disciplinary regime for advocates, universities have their own procedures governing students and faculty.

A law student is not an advocate in suspended animation, merely because that person intends to practise law.

NALSAR’s response exposed this jurisdictional difficulty. When the Bar Council initially continued to demand an inquiry after withdrawing the blanket enrolment restraint, the university said it would first have to consider whether conducting such an inquiry would itself be a constitutional exercise of its powers and permissible under its governance framework.

That was not institutional defiance. It was precisely the question any statutory university should ask before turning its disciplinary machinery upon students and teachers at the request of an external regulator.

NALSAR has its own governing authorities and disciplinary mechanisms. If students had violated university rules, NALSAR could act. If teachers breached service obligations or coerced students, its institutional processes could operate.

If an advocate commits professional misconduct, the Advocates Act provides another regime.

Institutional autonomy does not mean immunity from law. It means that power must travel through the institutions to which law has entrusted it.

Jurisdictions may overlap at their edges. One cannot simply swallow another because it controls a powerful professional gateway.

Arbitrary condition

Mishra’s final statement advised future advocates to express themselves freely but with “respect and institutional decorum”, adding that public ridicule of constitutional institutions is often “counterproductive”.

As advice, that proposition is open to debate but as a legal standard, it is much more troubling. “Counterproductive” is not a restriction recognised by Article 19(2) of the Constitution and “institutional decorum” cannot become an additional qualification for enrolment into a professional organisation.

Respect for constitutional institutions cannot mean immunity from criticism of those who occupy them. The courts already have the protection of constitutionally permissible laws, including contempt and defamation where applicable. Advocates are subject to professional obligations once they enter the profession. There is no constitutional need for an amorphous additional category relating to insufficient reverence.

The Bar’s own history should make the distinction obvious. Lawyers serve legal institutions not merely by defending them from attack, but also by questioning unlawful exercises of power within them. Constitutional loyalty demands fidelity to institutions and law, not personal deference to every office-holder, judgment or administrative choice.

The Bar Council of India is entitled to guard the gate to the legal profession. But a licence to practise law cannot be a leash that stretches back into the classroom.

The author is a constitutional lawyer and an alumnus of the University of Delhi and NALSAR University of Law.

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