#e4mExclusive:  Madison vs CCI: BCI flags ‘overbroad’ rules, opposes parallel discipline for advocates

The legal confrontation between the Bar Council of India (BCI) and the Competition Commission of India (CCI) in the Madison Communications matter has intensified. 

The BCI has filed a strongly worded additional affidavit (copy reviewed by e4m) in the Delhi High Court challenging the competition regulator’s authority to frame rules affecting advocates and legal representation. The matter will be heard on 8 September.

The filing comes amid a widening constitutional challenge to the Competition Commission of India’s investigative and procedural framework, particularly in matters linked to the ongoing Madison Communications litigation that has already triggered sharp observations from the Delhi High Court over delays by the Union government in responding to the case. 

 In its latest affidavit filed in the Delhi High Court, the BCI argued that the Competition Commission of India (General) Regulations, 2024 create what it termed a “parallel disciplinary regime” for advocates, despite Parliament having already occupied the field through the Advocates Act, 1961. 

The council has sought the striking down of Regulations 46(3), 46(4), 46A and 47(c), contending that these provisions are ultra vires the Competition Act, inconsistent with the Advocates Act and violative of Articles 14, 19 and 21 of the Constitution. 

The broader dispute has rapidly evolved into one of the most closely watched regulatory battles involving the competition watchdog, major advertising agencies and the legal fraternity.

In January this year, the Delhi High Court, while hearing petitions filed by Madison Communications Pvt. Ltd. and related parties, warned the Union government that failure to file its response could lead the court to draw an “adverse inference.” 

Earlier, the bench led by Chief Justice Devendra Upadhyaya and Justice Tushar Gedela allowed the Bar Council of India to be impleaded despite objections from the CCI.

The High Court observed that the dispute directly implicated issues concerning disciplinary jurisdiction over advocates, thereby warranting the BCI’s participation in the proceedings. 

The Madison litigation arose from the CCI’s ongoing cartel probe into India’s advertising ecosystem, including investigations linked to the Indian Society of Advertisers and major media-buying agencies. 

Madison has challenged not only the CCI’s investigative powers but also the legality of dawn raids, summons procedures and restrictions imposed on lawyers during investigations. 

BCI Says Advocates Act Is a ‘Complete Code’

In its affidavit, the BCI reiterated that the Advocates Act constitutes a “complete and self-contained statutory code” governing enrolment, ethics, discipline and professional conduct of lawyers. 

According to the council, disciplinary powers over advocates rest exclusively with State Bar Councils and the BCI under Sections 35, 36 and 36B of the statute. 

The filing argues that no tribunal, commission or regulator functioning under another enactment can create a rival disciplinary mechanism through subordinate legislation.

The council specifically objected to Regulation 46(3), which refers to “any authorised representative appearing for and on behalf of any party.” According to the BCI, the language is broad enough to include advocates and expose them to punitive or stigmatic consequences during investigations. 

The CCI had earlier attempted to clarify before the court that the provision was intended to apply only to non-counsel authorised representatives. However, the BCI argued that subordinate legislation cannot be “saved” through later affidavits offering narrower interpretations than the actual text of the regulation permits. 

“The very necessity of a clarification demonstrates the defect,” the affidavit states, adding that if advocates were genuinely excluded from the scope of the regulation, no such clarification would have been necessary. 

Challenge to Restrictions on Lawyers During Investigations

One of the most contentious provisions under challenge is Regulation 47(c), which permits advocates to accompany summoned individuals during investigations but prevents them from remaining within hearing distance while statements are recorded.

The BCI argued that the regulation effectively reduces legal representation to a symbolic exercise.

According to the affidavit, an advocate who cannot hear the questions being posed or the answers being recorded cannot meaningfully protect privilege, identify coercive questioning, object to procedural irregularities or advise clients against potentially self-incriminatory disclosures. 

The council described the regulation as one that “hollows out the substance of representation while preserving its outward form.” 

This issue has already figured prominently in earlier proceedings before both the Delhi High Court and the Supreme Court. In February 2025, the Supreme Court granted interim protection in connected proceedings arising from the Paramjeet Singh Gahlaut matter and stayed further coercive action linked to summons issued by the CCI’s Director General. 

The apex court later clarified that all issues raised in the pending Delhi High Court proceedings would remain open for adjudication on merits. 

'Vague' Misconduct Standards

 The BCI has also mounted a constitutional challenge to Regulation 46(4) and the Explanation to Regulation 46, arguing that the provisions permit the CCI to identify and record alleged “misconduct” by advocates using vague and subjective terminology.

The affidavit specifically criticised phrases such as “defiant behaviour,” “undermining the prestige of the Commission,” and conduct “offensive to institutional dignity,” arguing that such expressions are constitutionally overbroad and capable of penalising robust adversarial advocacy. 

According to the council, lawyers engaged in legitimate representation may frequently challenge jurisdiction, assert privilege, resist improper questioning or seek procedural safeguards — conduct that could potentially be characterised adversely under the impugned framework. 

The BCI further argued that the CCI framework lacks statutory safeguards comparable to those embedded within the Advocates Act, including complaint mechanisms, adjudicatory protections and appellate remedies. 

The dispute raises broader questions regarding the extent to which sectoral regulators can frame procedural rules affecting advocates, especially during investigations involving examination of witnesses and recording of statements.

 The matter could ultimately shape future investigative practices across multiple regulatory bodies, including financial, competition and enforcement agencies, where the role and proximity of legal counsel during questioning has increasingly become a contested issue.

The BCI, in its prayer before the Delhi High Court, has sought a declaration that no sectoral regulator may define advocate misconduct, create regulator-specific disciplinary frameworks or reduce legal representation to a “merely symbolic form” through subordinate legislation.