1. An advocate is the only person who is expected to speak for the voiceless. To speak without fear is the prime and supreme quality required for any advocate to derive the fruits of justice for his clients who are victims of injustice from their opponents in one way or the other. Historically it has been proved that advocates/lawyers all over the world were instrumental in spearheading mass movements against corruption, injustice, racism, slavery and all forms of social injustice affecting every segment of the society in one way or the other. Fearless speech generating mass attention and creating movement to revolutionize and forcefully demonstrate the need for corrective action and call for change have all come from the advocate’s community in our country as well as abroad. The dropping standards of skill and efficiency of advocates in the past few decades has been noticed all over the country and incidents of lawlessness and the alleged unruly behaviour of some advocates causing damage to the serene and sanctified judicial system and highlighting stray incidents of bad behaviour of individual advocates who acted perhaps in their individual capacity while hiding behind their professional identity is reported to be on the rise. Such individuals have no real knowledge or responsibility of the sacrosanct profession they are practicing and forget for a moment that they are being trusted and looked upon as personalities who are champions/crusaders of social justice while taking law into their own hands. It is extremely painful when all advocates are generalized while reactions from the society are reported.
2. Identifying such lawyers or advocates who cross the limits and transgress to create disorder in an orderly society and taking action against them is well within the prescribed provisions of Penal Laws, so violated by such individuals even if they claim to practice the dignified profession of law. Thorough search into the legal records of at least reported criminal cases all over the country reveal that members of all professions, however noble or respected it may be, have acted with utmost derogation and in violation of the strictest penal laws and were tried by the judiciary and convicted to be confined to the gallows on many occasions Doctors, Teachers, Professors, Chartered Accountants, Ministers, IAS Officers, Scientists and every profession/occupation etc., are not exception to this. Can it be inferred that law is toothless to control the unruly behavior of advocates? If so no advocate should have been convicted by any court of law for the past 40 years for the crimes committed by them. What calls for such drastic change/amendment to the existing rule empowered to be formulated by the Hon’ble High Court of Madras under section 34 (1) of the Advocates Act 1961?. The rule is in the books as Rule 14 of the Madras High Court Rules framed under Advocates Act way back on January 21, 1970, that was revisited by the Hon’ble Judges of the Madras High Court after more than 45 years.
3. Existing laws for disciplinary action and for misconduct of advocates are as follows:
I) Advocates Act 1961.
II) Contempt of Courts Act 1971.
III) Provisions in the Indian Penal Code relating to perjury and giving false evidence in oral and documentary forms before any Court of Law as defined under section 195 of Code of Criminal Procedure. The special procedure laid down under section 340 of the code of Criminal Procedure. If an advocate gives false evidence by way of oral or written statement in a court of law or abets his client who is a party to any litigation to do so and if evidence is recorded by the court to that effect, he can be proceeded against individually for commission of such offence by resorting to the special procedure enshrined under section 340 of the code of Criminal Procedure where the Court/Presiding Officer before whom such false evidence was given becomes the complainant before the Magistrate and procedure setting criminal law in motion can be resorted.
Provisions of Advocates Act for disciplinary action is as follows:
a) Section 35 provides for punishment of advocates for professional or other misconduct wherein if a complaint is received by the State Bar Council, a disciplinary enquiry is held against an advocate against whom a complaint has been made.
b) Section 36 empowers the Bar Council of India to take disciplinary action on a complaint received against an advocate for professional or any other misconduct.
c) Section 37 provides for an appeal to the Bar Council of India against an order of a disciplinary committee of a State Bar Council to be made within 60 days of the communication of the order.
d) Section 38 provides for an appeal to the Supreme Court against an order passed by the disciplinary committee of the Bar Council of India within 60 days from the date of communication of the order.
e) Section 45 provides for punishment for a person illegally practicing in courts or before other authorities.
f) Section 49 empowers the Bar Council of India to make the rules for discharging its functions under the Act.
Provisions Under the Contempt of Court Act 1971.
1. The High Court is empowered to initiate sue motto contempt action against an erring advocate and the punishment under the Act is prescribed in Section 15.
2. Where an advocate who had apparently no case on the Board of the bench, shouted slogans’ in the open court and there after hurled his shoe towards the Court thereby interrupting the Court proceedings his action, both by his words and deeds in the presence of Court amounts to gross Criminal Contempt of Court; in-re: Nandalal Balwani AIR 1999 SC 1300.
3. The embarrassment and after effect of any action against an advocate resulting into Mob reaction and the alleged orchestrated campaign by advocates associations either locally or throughout the State depending on the gravity of the action taken by the Court against advocates and inconvenience caused to the court and the Learned Judges have all been reasons for not resorting to taking action under the existing laws, which are strict and harsh enough to install discipline amongst erring lawyers. The neglect of police authorities to take action in accordance with law when the accused happens to be a lawyer/advocate sometimes at the command and orders of higher administrative authorities in the Government and for reasons not so well justified to any one are also contributing factor to the fall in standards of discipline amongst advocates. Enforcement of existing laws becomes more difficult in a practical sense when the offence committed intentionally by a mob of lawyers in utmost lawless state hiding behind some personal cause of an individual which can be redressed under the common law system (on one to one basis) even if the aggrieved person is an advocate, OR when a group of lawyers assemble under the banner of protecting linguistic rights, rights of the down trodden, caste based issues etc all in the name of social justice and taking such campaigns into the court premises, corridors and court halls with the least respect to the functioning of courts which is duty bound to deliver justice at the earliest, to avoid delay which defeats justice.
4. To curb such unruly action some steps in the right direction has already been taken by the Madras High Court by deploying CISF in the High Court Campus for security and ever since then a peaceful environment is already created in the High Court Campus.
5. Incident of a Magistrate in Gujarat who issued non bailable warrant as against the President of India and also the Then Chief Justice of India upon a petition filed by an Advocate and which was exposed in the media as a “cash for warrants” scam was reported in April 2004. Supreme Court quashed the warrants and the entire proceedings and took strict action against the Magistrate and all persons involved behind the fictitious complaint and directed the Central Bureau of Investigation to file an appropriate report on the said case and indicate whether any other similar incident have taken place. If such a grave misconduct of a Magistrate can be subjected to the existing laws of the land and strict a stringent action could be taken by the Judges of Higher Courts, then it is difficult to understand as to why the existing laws will not be insufficient to curb and regulate the alleged unruly conduct of advocates on case to case basis?
6. The Writ jurisdiction of the Madras High Court is wide enough to initiate a suo-motto writ petition and the Bar Council of Tamilnadu and also the Bar Council of India can very well be submitted to the writ jurisdiction of the Madras High Court. Specific directions to complete the disciplinary Committee’s enquiry against the erring advocates can very well be passed as against the Bar Council of Tamilnadu and also the Bar Council of India. On failure to comply with such directions/writs ordered by the High Court of Madras, contempt proceedings can be initiated against the erring officials of the Bar Council of Tamilnadu and also the Bar Council of India. When such sweeping powers are already existing within the reach and also within the hands of the Hon’ble High Court Judges, the amendments which have been now passed by the Madras High Court acting under the powers conferred on it under Section 34 of Advocates Act,1961 which no other High Court has apparently done in the past only indicates the thought of the judiciary (The Bench) to instill fear of grave, punitive and irreparable consequences that will be caused to the careers of the Advocates if they crossed the ‘Lakshman Rekha’ of discipline as portrayed by the Learned Judges of the Madras High Court. Whether the Learned Judges will invoke the rule against erring lawyers only or whether the term “erring” will be expanded to acts and behavior which are sufficient enough to cause embarrassment, inconvenience and dislike of a particular Judge, before whom an advocate argues vehemently and fearlessly? Whether such apprehension of a normal practicing advocate, that he could be punished and debarred directly without any disciplinary proceedings from Bar Council and a fair hearing just because he was the reason for the displeasure of the Learned Judge before whom he argued the case, are apprehensions which need to be duly and fairly addressed by the Learned Judges of the Hon’ble High Court of Madras through proper and clear orientation programs for advocates, if the amendments have really been done in the interest of upholding tranquility and peace within the High Court premises.
7. In my view, the reasoning that the amended rules of High court, so as to empower High court judges to deal with unruly advocates then and there, will not affect advocates who are learned and who behave well and who do not cause disturbance or nuisance to the court proceedings, will not be sufficient reason to impose the amendments on the entire section of lawyers who are now being treated unequally of their likes in other states of India. All the laws of the country have been abused by the favouring segment of people for whom such laws were enacted and there have been numerous victims of such gross abuse of various laws all over our country. Politicians in power have filed false cases and imprisoned their opponents who raised their voice in public by filing cases under the Indian Penal Code, TADA, POTA etc., disgruntled wives have resorted to filing false cases against the husbands and their entire family all over the country in large proportion, employers have filed false cases against employees and managers who left services to the dissatisfaction of the employer, false cases alleging caste atrocities are also not uncommon in our country. Therefore the fear of abuse of unlimited powers being now vested on High Court Judges for the very first time after more than 45 years and that too only on the Madras High Court Judges has given a cause for the advocates in Tamilnadu to be unhappy so or to be viewed as law offenders and irresponsible group of professionals which will definitely do no good to the already diminishing image and value of an advocate in the eyes of General Public.
8. While in-service trainings are given for all professionals and employees of all departments at various stages of their career, sadly, there are no mass orientation programs for general advocates being organised by the High court or Advocates Associations. However there are seminars on specific subjects for interested advocates happening all over the country and most of them are conducted in star hotels, at huge cost and the larger section of advocates are not aware of such programs or are not affordable to attend these programs. Very few programs on non-payment basis are organised and such programs are not properly advertised and the quality of such programs are also not upto the mark. The rich and luxurious segment of lawyers are having access to generate and accumulate their knowledge while the poor and unaffordable class, which is the major section of lawyers do not see any marked improvements in their skills or accumulation of their knowledge levels, purely for the reasons of lack of financial resources and poor coordination regarding information pertaining to such seminars and programs, which they can actually afford. High court should take up this huge responsibility of transforming the class of poor advocates in phased manners by conducting such quality programs through the Bar associations and try to increase the frequency of such programs and give incentives to advocates who attend such programs, by issuing appropriate certificates which could be considered while such advocates aspire to become Judges and occupy such other responsible government position in the judicial sector. The responsibility to groom advocates has to be seriously taken up first before using the cane to discipline them. This can be done on a regular basis in an attempt to sow the seeds of knowledge, ethics and responsibility amongst the advocate fraternity. Mere, “ law-day” oath-taking in the presence of High court judges in the Advocate’s associations as part of official ceremonies and to account for law-day celebration for the purpose of recording the same in the respective minutes book of the advocate’s associations and special guest lectures at periodic intervals that are attended largely by the advocates of intellect, responsibility and financial resource are not even noticed by the majority of the advocates for whatever reasons it may be. There may not be sufficient steps initiated either by the associations or by the High court for galvanizing a huge mass of practicing advocates who are alleged to be led astray by improper leadership or erratic mob behaviour for the slightest cause or no-cause.
9. Popular judges in the High court amongst all sections of lawyers and inclusion of the recently elevated judges from the members of the Bar can be part of an action committee to interact with lawyers group who are allegedly rude and rough and who are not very sophisticated in their approach and not polite in their talks but who are really passionate about their “cause”, irrespective of the present climate of hostile air in the High court environment. The sense of betrayal cast upon advocates who attend their cases in the High court with CISF keeping guard of the premises and the fear of advocates to move in their robes inside the High court premises and outside the court hall, which normally vests pride in any advocate is a matter of serious concern and the continuance of the same would only be to the diminishing value of the dignity of an advocate’s profession. Grave indiscipline has to be responded with iron handed action is right and well accepted principle all over the world. Whether all the members or majority of the members of Bar have behaved recklessly and irresponsibly against the discipline and decorum of the High court? is the paramount question that needs to be answered with conscience by all concerned.
10. The advocates who attend courts now are looked upon by their brother advocates as cowards and spineless people who are afraid of the alleged unfair attitude of the Hon’ble Judges of the High court. Greater interaction and trust building exercise and encouragement to practice the profession of law without giving undue importance to the persons who appear before court and by giving due importance to the subject matter that is being argued by any persons before the Hon’ble courts and above all, a compassionate and relief oriented approach at all interim stages of the proceedings and treating advocates with more affection than authority, are all definite improvements that can be done in the attitude of Judges to promote a friendly Bench-Bar climate which can be far more effective than imposing new rules and laws on the entire advocate’s fraternity at large. The Learned judges are very well aware of all these niceties and nuances and tactful behaviour but for some reason it is less resorted to and the language of authority and domination is attempted by many Judges with no great improvement in the relationship between the two groups. Unfortunately the rift is widening day by day. A boycott call by advocates is undoubtedly illegal and unjust but what else can the advocates do even if their own “cause for their career” is not heard sympathetically, compassionately and effectively by their own elder brothers who graduated to the other side from a practitioner of law to an Enforce of Law. Fair and balancing mechanism to prevent the abuse of such amendments by the High court Judges, if available under the amendments, need to be explained to the agitating lawyers and their trust should be won so as to make them call off the agitation voluntarily. If such provisions are not there in the amendments, an assurance to bring such amendments should be authoritatively pronounced on record. An erring lawyer, under the new amendments, can be suspended and later on debarred from practice by the strict action of the High court Judge. An erring Judge can only be dealt with by the Parliament under a very complicated and technical procedure known as impeachment. Thus the apprehension as to what will happen if a Judge without proper reason uses the vast powers conferred on him through the present set of amendments in a biased way, is, “the one million dollar question” that needs to be answered to the complete satisfaction of the agitating lawyers, if any truly meaningful, peaceful and amicable solution is being looked at by the judiciary as a whole.
(The attempt of the author is only to view the issue in a wholesome manner and try to look for some practical solution and long standing permanent remedies, to strengthen the Bench-Bar relationship)
M/s. Chennai Law Associates