Lawyers on the warpath

Tamil Nadu witnesses another round of agitation by lawyers following the trouble over the Madurai Bench of the Madras High Court, this time in response to a code of conduct issued for by the court.

FOR the past several weeks, the Madras High Court premises have virtually been a battlefield, where opposing groups of lawyers assault each other, boo judges, storm court halls and obstruct proceedings. Boycott of courts, dharnas, hunger-strikes, rallies, processions, black-flag demonstrations, burning of effigies and lawyers "hanging" themselves on the campus have become the order of the day. Adding to the tension is a split in the Madras High Court Advocates' Association (MHAA).

On August 20, lawyers obstructed traffic outside the High Court compound, deflated a tyre of a police bus, and when policemen tried to take three lawyers into custody, others smashed the windshield of the bus. The same day, the Supreme Court called the violent incidents on the court premises "a serious matter". On a public interest petition, a three-Judge Bench of Justices Santosh N. Hegde, S.B. Sinha and G.P. Mathur directed the Chennai Police Commissioner to take steps to prevent demonstrations on the High Court premises and obstruction of the lawyers who want to appear in cases.

At the root of the incidents is a 25-point code of conduct for advocates issued by the Madras High Court and gazetted on July 30. The court empowered itself to impose a ban of up to one year on lawyers who violated the code, which banned all forms of agitation and the use of indecorous language in court halls and on court premises. The Registrar-General of the High Court notified the code under Section 34(1) of the Advocates' Act and it would apply to advocates practising in any court in Tamil Nadu.

The advocates are united in demanding the withdrawal of the code, which in their opinion, is an assault on their independence. They view it as a sweeping "gag order". According to them, only the Bar Council of India, which is the statutory disciplining body for advocates, can regulate their conduct. Another key demand of the lawyers is the transfer of the Chief Justice of the High Court Justice B. Subhashan Reddy who, they allege, is behind the code.

After meeting a delegation of Members of Parliament from Tamil Nadu on August 19 in New Delhi, Union Law Minister H.R. Bhardwaj told reporters that "only the Bar Council is the proper authority to evolve a code of conduct for lawyers and no other authority can evolve such a code." The Minister said the MPs did request transfer of the Chief Justice, but added, "the government can't do anything in this matter. If necessary, we will take up the matter with the CJI [Chief Justice of India]".

In the backdrop of the Supreme Court directive to the Police Commissioner to take steps to prevent any demonstration on the High Court premises, the MHAA met on August 23. Its members decided to fill the jails and continue the boycott of courts. They said the boycott would continue until the code was withdrawn and Justice Subhashan Reddy transferred. The police were massed in the court compound. MHAA members came out on to the main road, holding black flags and placards and raised slogans. Scores of lawyers courted arrest. Earlier, MHAA members decided to meet the CJI and represent their case.

The Bench, too asserted itself, insisting that lawyers should behave. On August 16, the High Court initiated disciplinary proceedings against 102 lawyers whose names were mentioned in three First Information Reports and asked them why they should not be prevented from entering the court premises. Justice Subhashan Reddy said: "Advocates threaten senior Judges. If that is the tendency, we cannot keep quiet. I will not allow any rowdyism, hooliganism and vandalism." Justice S. Ashok Kumar, who was on the First Bench with him, said: "We saw it with our own eyes. They are shouting at Judges." The Tamil Nadu Judicial Officers' Association condemned "the terror unleashed on the judicial system, the campus violence and the unjustifiable vilification campaign against Judges." It said, "The violent acts and vandalism fortify the necessity for stricter disciplinary rules against erring lawyers."

On August 4, the High Court kept the code in abeyance. Eight days later, the First Bench passed a judicial order suspending the code but banned all forms of agitation on the court premises. It directed that a committee be formed, comprising the presidents of the MHAA, the Federation of the District and Subordinate Courts' Bar Associations of Tamil Nadu and Pondicherry and the Madras Bar Association, the chairman of the Bar Council of Tamil Nadu and Judges to be nominated by the Chief Justice, to go into the issue. The First Bench said: "Till the committee submits [its report] and a final decision is taken, the impugned rules framed and gazetted on July 30 stand suspended."

The lawyers were, however, unrelenting.

What stands out in the issue is the shifting stands of the MHAA and the Federation. The MHAA withdrew its boycott of the courts on August 9, but reversed the decision later. In the process, the MHAA suffered a split; its president S. Prabakaran was "removed", and advocate R. Premnath was installed as ad hoc committee president. The federation announced the suspension of its week-long boycott on August 16, but reversed the decision the next day.

Paradoxically, the announcement of the code of conduct was not the starting point of the trouble. MHAA members first started boycotting courts in the third week of July, protesting against the establishment of a Bench of the High Court in Madurai. They were also protesting against the inclusion of the judicial districts of Nagapattinam, Perambalur, Tiruchi, Thanjavur and Karur in the territorial jurisdiction of the Madurai Bench. The demand for a Madurai Bench was about 30 years old. There was a felt need for it because it would save time and money for the litigant public and the lawyers in the southern districts. K. Vellaichamy, president of the Madurai Bar Association, led the struggle for the Madurai Bench.

There were several obstacles to the formation of the Madurai Bench. Its inauguration was postponed three times. A presidential notification was issued on July 6 for the founding of the Bench. The CJI, Justice R.C. Lahoti, inaugurated it on July 24 at a function presided over by Justice Subhashan Reddy.

Two days later, Justice Subhashan Reddy told reporters in Madurai that the Bench would have writ jurisdiction over 12 judicial districts. He quoted a notification issued by the High Court Registrar (Judicial) to say that all cases arising in these districts would be heard by the Madurai Bench. The 12 districts are: Madurai, Dindigul, Pudukottai, Thanjavur, Tiruchi, Karur, Sivaganga, Ramanathapuram, Virudhunagar, Tirunelveli, Tuticorin and Kanyakumari.

The announcement came when the MHAA members were already boycotting courts against the establishment of the Madurai Bench and the inclusion of Tiruchi, Thanjavur and Karur districts in the territorial jurisdiction of that Bench. By now, Nagapattinam and Perambalur were ordered to be retained with the principal seat in Chennai. A section of lawyers in Chennai saw red in Justice Subhashan Reddy's announcement. They wanted the writ jurisdiction to be retained fully with the principal seat. The MHAA again announced an indefinite boycott of courts until a nine-member Judges' committee on the allocation of districts to the Madurai Bench submitted its report. The MHAA wanted the CJI to transfer Justice Subhashan Reddy. It demanded a Bench of the Supreme Court in Chennai.

Ironically, while the court halls in the principal seat in Chennai remained empty, the Madurai Bench was fully functional. Some senior lawyers who opposed the setting up of the Madurai Bench were quick to set up office in Madurai. In Chennai, despite the boycott, lawyers of the Dravida Munnetra Kazhagam attended court when a case involving their party headquarters' land came up for hearing. Lawyers belonging to the ruling All India Anna Dravida Munnetra Kazhagam appeared in a case filed by one of their Rajya Sabha members against a government official. Lawyers allowed their senior counsel to argue their writ petitions challenging the constitutional validity of the presidential notification establishing the Madurai Bench.

On July 28, the MHAA, in a reversal of its stand, decided to attend courts from August 2. It was, however, firm that it would boycott indefinitely the court of Justice Subhashan Reddy. On the Judges' side it was made clear that the lawyers should withdraw their resolution demanding the transfer of the Chief Justice. On July 30, the lawyers said they would call off their boycott, but the demand for the transfer of the Chief Justice remained. The same day, the High Court issued the 25-point code. The code specifically mentioned that even the boycott of one court or Judge could be construed as a boycott of the entire court and hence "misconduct".

One of the rules said: "No advocate shall hold demonstrations, processions, etc., on the court premises causing disturbance to the court proceedings." The code also said lawyers should not block court proceedings; they should not obstruct others from entering court halls or its premises; they should not publish or circulate handbills containing "false, scurrilous or scandalous matters as regards courts"; they should not speak ill of Judges or make disparaging remarks about court proceedings; they should not make allegations of bribery against a presiding Judge when they were aware that the allegations were false or could not be sustained. The rules banned lawyers committed for contempt of court from practising in any court during the period of punishment. Besides, if the High Court had passed a "stoppage of appearance" on a lawyer, he was barred from entering the premises of any court. The stoppage of appearance would be handed to an advocate after he or she was given an opportunity to explain his or her stand.

IF the issue of setting up the Madurai Bench and its territorial and writ jurisdiction had divided the lawyers in the State, the code of conduct united them. The MHAA called the notification of the code "arbitrary' and said it "constitutes a wrongful exercise of power, arms the judiciary with undemocratic powers, and is reminiscent of the Rowlatt Act and the POTA [Prevention of Terrorism Act]". It charged that the code was aimed at gagging any attempt that sought "accountability and transparency in judicial functioning".

K. Chandru, Senior Advocate, who supports the establishment of the Madurai Bench but is firmly opposed to the conduct rules, said the British had enacted the Indian Bar Council Act in 1926, under which the High Courts enjoyed the powers to register advocates and also initiate disciplinary action against them. The British used that legislation to take action against lawyers who took part in the freedom struggle. It was in this background that after Independence, Parliament enacted the Advocates Act in 1961 to enable lawyers to function independently and to have a reasonable supervision of their activities. Several cases came up before the Supreme Court on the issue of boycott of courts. In Harish Uppal vs Union of India, a five-member Bench of the Supreme Court ruled that lawyers, under no circumstances, should strike work or boycott courts. The Bench said that although the Bar Council of India enjoyed the powers to take disciplinary action against lawyers, the High Courts, under Section 34 (1) of the Advocates Act, 1961, could frame rules and take action against lawyers with reference to their conduct before courts.

Justice M.P. Shah, who was on the five-member Bench, said lawyers, could pass resolutions, take out peaceful processions, and observe dharnas and fasts to highlight their problems. Justice S.N. Variava, another Judge on the Bench, said lawyers could hold placards or wear white armbands on the court premises to register their protests. Lawyers, after obtaining the Chief Justice's or district Judges' permission, could resort to a one-day token boycott of the courts if there were threats to the independence of the judiciary, Justice Variava added.

Chandru pointed out that while the High Court had quoted the Supreme Court's ruling in Harish Uppal vs Union of India to back up its framing of the code, it had declined to endorse the forms of protest allowed by that ruling. The High Court, therefore, had gone beyond the ruling of the Supreme Court, he said. The code could also be viewed as an attempt to snatch away the powers given to the Bar Council of India, he said.

N.G.R. Prasad, State president, All-India Lawyers' Union, asked: "For the past 50 years, there were no conduct rules either for lawyers or Judges. Why now?"

R. Vaigai, a lawyer, asserted that the core issue was the independence of lawyers, which is sought to be curbed by the judiciary. Under the guise of regulating hearings in the court, the High Court could not bar lawyers from taking out rallies and processions, or observing fasts, she said. "The lawyers have made it clear that the conduct of code is a non-bargainable issue. It is not a question of 25 points or 15 points, there should be no points at all. For, a fearless Bar is the true yardstick of an independent judiciary," she said.