Lawyers against an Act

Lawyers across the country resort to strikes to protest against amendments to the Code of Civil Procedure, which apparently seek to cut down on judicial delays and costs, and a proposal to amend the Advocates Act.

NORMALLY, a piece of legislation that has had a smooth passage in both Houses of Parliament and been ratified by the President would face little or no resistance outside the legislative body; for the government of the day, having it duly notified would b e a mere formality.

However, the Code of Civil Procedure (Amendment) Bill, 1999, has had a different fate. Advocates all over the country, who oppose certain provisions in the Amendment Act, have sought to resist its notification. They have resorted to the extreme step of g oing on strike; in Tamil Nadu, the functioning of courts was paralysed for more than 10 days.

The amendments to the Code of Civil Procedure (CPC), 1908, proceed from the recommendations in the 129th report of the Law Commission of India and those of the Justice Malimath Committee. The two reports were made public two years ago in order to elicit the views of members of the legal community. The draft bill was in circulation since then; a few Bar associations had objected to certain proposed amendments to the CPC and also the Advocates Act, 1961.

The advocates argue that members of Parliament perhaps did not collectively apply their minds to the full ramifications of the amendments. For, little debate preceded the passage of the bill in either House. The lawyers have also raised the question whet her there was requisite quorum in the Lok Sabha when the bill was passed and whether the objections raised and suggestions made by the various Bar associations were considered at all by the Rajya Sabha.

However, it may be hard to justify their having resorted to extreme steps such as boycotting courts throughout the country and breaking police cordons (as they did in New Delhi on February 24, which prompted the police to use force against them). In 1995 , the Supreme Court had expressed the opinion that lawyers should resort to boycotts and strikes only in the "rarest of rare cases", and only as the last resort. The apex court had then ruled that lawyers and judges who wished to discharge their obligati on to their clients should not be prevented from doing so.

Lawyers, however, say that they have been pushed to the wall by Union Law Minister Ram Jethmalani's "brash" attitude. In their view, Jethmalani, who has served as a Senior Advocate in the Supreme Court, has sought to distort issues arising from the lawye rs' protests: by projecting the view that the lawyers' opposition to the amendments was motivated by pecuniary considerations, he had portrayed them in a bad light and as a community who did not have the interests of the public in mind, they said. Appear ing on television, Jethmalani said that as an advocate if he were to choose between monetary benefits of advocates and the public interest, he would gladly choose the latter.

Lawyers have expressed the fear that the amendments, which have the stated purpose of addressing the problem of judicial delays and mounting judicial costs, might in some cases end up resulting in "speedy delivery of injustice". A leading civil lawyer li kened the drastic provisions of the Act to the recommendation of a crash diet for an overweight person. "No doubt, he or she will lose weight, but it could cause serious side effects."

The lawyers object to the new provisions on several grounds.

First, they say that the provision that seeks to restrict amendments to pleadings and the production of documents to the plaint at a subsequent stage of trial is too drastic and will ill-serve the litigants' cause. There are times, said a lawyer, when am endments would have to be made in the plaints to counter statements and documents presented by the other party to the dispute or to bring to the notice of the trial court subsequent events connected to a case. The blanket denial of an opportunity to make such rectifications and produce additional documents would not serve the ends of justice, the lawyer said. Even now, the lawyer noted, no litigant could seek to make amendments to his or her plaint as a matter of right; such amendments could be made onl y at the discretion of the court.

Second, the Act provides for examination of witnesses by commissioners appointed by the courts in order to save the trial judges' time. Although this provision might address the problem of judicial delays, some lawyers fear that it pre-supposes the commi ssioners' neutrality. In any case, they said, it would be a poor substitute for a public trial, which is a key characteristic of the judicial delivery system.

Third, the Act restores Section 89 of the CPC, which was repealed in 1940 and which enables out-of-court settlement of disputes through arbitration, conciliation, mediation or through the Lok Adalat. Although this provision too is aimed at helping the co urts clear their backlog of cases, advocates have expressed the fear that the pre-trial conciliation proceedings may not be entirely free of bias.

Fourth, the Act requires a defendant in a suit to file a statement within 30 days of summons being served on him or her. Lawyers argue that in many cases, particularly where the government is a litigant, it may not be possible to file a reply within the stipulated period. Tamil Nadu government officials, for instance, have expressed the opinion that where the government is the defendent, it should be given 60 days to file a reply.

Fifth, the Act restricts second appeals to decrees in respect of amounts exceeding Rs.25,000. (The earlier provision had a threshold of Rs.3,000.) As a result, in cases where the decree amount is less than Rs.25,000, the litigant has to go directly to th e Supreme Court for appellate remedy; decrees of amounts exceeding Rs.25,000 would have the benefit of an appeal before the High Court, subject to there being a substantial question of law involved. Some lawyers claim that the majority of cases under lit igation relate to transactions that involve less than Rs.25,000; in such a situation, restricting second appeals to decrees above Rs.25,000 would have the effect of affirming an appellate remedy only for those who have the resources. Even those who argue in defence of the Amendment Act concede this point but claim that this could be corrected through a minor amendment of the Act.

Sixth, the Act amends Section 100 A of the CPC in such a manner that appellate remedy against any writ, direction or order issued under Article 226 or Article 227 of the Constitution will be curtailed. Now writ petitions could be heard by single judges a nd an appeal against the judge's verdict may be preferred under Clause 15 of the Letters Patent before a Division Bench. Only after exhausting this provision can the aggrieved party move the Supreme Court under Article 136.

The Amendment Act seeks to do away with the provision that facilitates going in appeal before a Division Bench of a High Court against an order of a single judge of the same court. The litigant who is aggrieved by the ruling of a single judge, will, unde r the provisions of the Amendment Act, have to approach the Supreme Court for redress. Many lawyers believe that the removal of the provision for intra-court appeal would flood the Supreme Court with cases; they point out that many litigants could ill-af ford to come to Delhi to go in appeal. Therefore, lawyers have demanded that this amendment provision be reversed until alternative intermediate courts of appeal are established.

A few provisions in the Amendment Act, particularly those that provide for the use of electronic communication, such as e-mail or facsimile, or courier services by courts to send notices to parties have been welcomed; but some lawyers have cautioned that there are problems in establishing the authenticity of such communication.

The larger question is whether these amendments are necessary or sufficient to meet the object of speeding up the process of delivery of justice. "What we require is more courts; there is no substitute for this," said Prashant Bhushan, Supreme Court lawy er.

THE proposal to amend the Advocates Act too has generated a controversy, although as of now it exists only as a working paper and there is time to debate the issues involved and make the necessary amendments. One of the proposals would require advocates to subject themselves to an assessment once every five years in order to renew their professional licences. The proposal is ostensibly aimed at infusing greater professionalism in advocates by facilitating competition, but there is a fear that the machin ery that would assess the lawyers may not be neutral. There is a need to ensure that the machinery which will be entrusted with the responsibility of carrying out the periodic tests should be transparent and impartial, says Prashant Bhushan.

Another proposal, to let foreign advocates and law firms practise in India, has proved controversial. This follows from India's agreeing on January 1, 1995 to abide by the General Agreement on Trade and Services; even so, there is as yet no legal obligat ion to allow foreign firms to practise in India, since renegotiations are on. The principle of reciprocity, which guides the proposal, may exist only on paper, Indian advocates fear. One advocate warned: "Our visa system is liberal, whereas Indian advoca tes may find it difficult to go abroad and practise in foreign courts. Developed countries have very strict immigration laws. Indian lawyers, for instance, will find it difficult to enter the United States. There will be no reciprocity."

Given the differences between the government and the legal community on the proposed amendments to the CPC, it would be imprudent for the government to issue the notification without taking the lawyers into confidence. The lawyers too would serve the cau se of their professional reputations better if they first explored legal remedies rather than take to the streets.