The Judiciary

Bar vs bench

Print edition : October 30, 2015

Lawyers from the southern districts taking out a two-wheeler rally without wearing helmets in Madurai on September 10. Photo: S. James

K. Chandru, former judge of the Madras High Court. Photo: Bijoy Ghosh

The confrontation between the Bar and the bench in Tamil Nadu has reached a flashpoint with the Bar Council of India suspending the licences of 14 advocates for “misconduct and unethical behaviour”.

A TUSSLE between the bench and the Bar was already on in Tamil Nadu, and a flashpoint was waiting to happen when the Bar Council of India (BCI) decided on September 25 to suspend the licences of 14 Madurai-based lawyers for “behavioural lawlessness” in court halls “endangering the decorum of the judiciary and the dignity of the legal profession”. A series of unpleasant incidents involving the legal fraternity in recent months had raised pertinent questions about the coexistence of the bench and the Bar, which is vital for the seamless functioning of the judiciary.

The lawyers, who have been holding protests and boycotting courts for long for various reasons, some of them ludicrous, described the BCI’s suspension notice, mainly on charges of “professional misconduct and unethical behaviour”, as unprecedented.

Advocates claimed that two incidents occurring in quick succession led to the BCI’s suspension order. (One lawyer figures in both the instances and hence the BCI’s list technically says that 15 advocates have been suspended.) The first incident took place on September 14 when some lawyers from Madurai staged a dharna, with their mouths covered with pieces of black cloth, outside Court Hall No-1 in the Madras High Court in Chennai demanding that Tamil be made the official language in courts. This forced the Chief Justice to seek Central Industrial Security Force protection for the courts.

In the second incident, on September 16, a small group of lawyers from Madurai created a ruckus in the corridors of the High Court where a contempt petition initiated suo motu by the court against A.K. Ramasamy and P. Dharmarajan, president and secretary of the Madurai Bar Association respectively, for protesting against the June 8 ruling of a single judge making helmets compulsory for two-wheeler riders came up for hearing.

A two-member bench hearing the contempt case held dissenting opinions and referred the issue to the Chief Justice of India. The bench, in what is seen as an unusual practice, ordered the installation of a 55-centimetre LED television screen on the court premises to relay the (contempt) proceedings live in order to avert unsavoury incidents.

Another incident, which also took place on September 16, involved a few Madurai lawyers. The High Court bench was irked when the lawyers picked an argument with a senior counsel and the judge in Court Hall No-2 of the Madurai Bench of the court over an issue of boycott.

M. Thirunavukkarasu, president of the Madurai Bench of High Court Advocates Association, who figures in the list of suspended lawyers, told Frontline that some 200 lawyers from Madurai and other southern districts had staged a demonstration near the High Court in Chennai to highlight the alleged corruption in the judiciary. A similar protest was held in Madurai on September 10.

In fact, the majority of the suspended lawyers who attended the proceedings of the Special Disciplinary Committee of the Bar Council of Tamil Nadu and Puducherry (BCTP) on October 4 in Chennai claimed in one voice that they were not involved in the Tamil language stir and in the arguments that allegedly took place in the Madurai Court Hall or in the Madras High Court Hall during the contempt proceedings. (Ten lawyers who took part in the Tamil language stir were arrested and remanded to custody.)

“Some of us took part in the helmet rally in August in Madurai and in the stir against corruption in the judiciary. The High Court clubbed these incidents and made it look like we participated in all protests,” Thirunavukkarasu said.

M. Varadhan, the BCTP’s Special Disciplinary Committee Chairman, told Frontline that the primary task of the committee was to ascertain whether the accusation of “unbecoming behaviour of an advocate” on the premises of both the Principal Bench and the Madurai Bench of the Madras High Court on various dates was true. “Twelve of the suspended lawyers attended the hearing. They have sought copies of the charges against them,” he said. He said the three-member committee (which includes State Bar Council members K. Renganathan and Venkataramani) hoped to finalise the report in two months.

The BCI had earlier appointed a two-member committee with lawyers from Karnataka, but the BCTP rejected it. Many suspended lawyers said the charges against them were “vague and unspecific”. “We are yet to receive them officially,” said Thirunavukkarasu. The lawyers blamed the BCTP for the recent developments and for remaining a mute witness to the criminalisation of the legal fraternity. “You cannot spare the crime-tainted individual lawyers who still practise and flourish and punish those who fight for social causes,” he said.

Ugly turn

Calling the present imbroglio a “turmoil in the legal world”, Justice K. Chandru, a former judge of the Madras High Court, told Frontline that the lawyers’ agitation had taken an ugly turn. “This is not the first time that lawyers have protested against a judgment of the High Court. Open defiance of the order making the wearing of helmet compulsory does not do well for them,” he said.

“The protest did not stop with a resolution of the Bar condemning the judgment. There was continuous boycott of the District Court of Madurai. Lawyers took out a two-wheeler procession, driving without helmets, and held a public meeting to condemn the judiciary indiscriminately and even read out the names of judges who are allegedly corrupt,” he added. He said that in the past the Bar Associations never organised movements against corrupt judges. Committed lawyers would approach legal fora individually or as a group seeking the removal of such judges.

“The present attempt by some self-styled human rights champions to make it appear as if the judiciary is all out to crush lawyers, reminiscent of the Emergency situation, is unwarranted. Action has been initiated only against some hard-core elements in the Bar who were determined to derail the legal system. Can these champions point out whether in the past 64 years of existence of the Bar Council, under the Advocates Act, any anti-social lawyer has ever been removed? Has the Bar Council ever attempted to prevent the indiscriminate boycotts of court, reducing their working days from 210 days to 30 or 40 in a year?” he said.

Many judges, who did not wish to be named, concurred with Justice Chandru’s views. The High Court has decided not to bow to “pressure” from the lawyers. “It is badly hurt,” says a senior advocate. The court wants to take the issue to a logical conclusion in order to put an end to the increasing incidents of “open defiance”.

A senior judge claimed that the manner in which the protesting lawyers reportedly behaved during the anti-helmet and anti-corruption rallies by raising objectionable slogans against the judiciary triggered the current conflict.

The Intelligence Section of the Tamil Nadu Police also had a role to play. A senior official said that the police had been monitoring incidents involving lawyers across the State ever since the violent confrontation between lawyers and the police on the Madras High Court premises on February 19, 2009. The police arrested 17 lawyers on that day for attacking the then Janata Party leader, Subramanian Swamy, when he came to the court, and this led to the violence.

The police video-recorded the anti-helmet rally and the speeches made by a few participant lawyers who targeted the judiciary. The recordings were handed over to the Registrar General’s Office, which informed the Chief Justice of the Madras High Court of the matter. The Chief Justice took cognisance of these incidents and after obtaining a report from the Registrar General, referred it to the Chief Justice of India, who expressed anguish over the behaviour of the advocates.

It was then up to the BCI to act. It suspended the lawyers without giving them a chance to explain their side, it was claimed. The BCI Chairman, Manan Kumar Mishra, in his letter dated September 22, pointed out that lawyers holding protest marches, shouting slogans (not only on the premises and in the corridors of courts but also in courtrooms) and creating disturbance had become a regular feature in Madurai and Chennai. Advocates were reported to have abused the judges in open courts and there had been instances of slogan-shouting lawyers storming into courtrooms and as a result “the judges are in a state of fear in courtrooms”.

The Chairman of the BCTP had expressed his inability to take any action against the errant lawyers because of “their muscle power, bad antecedents and criminal history”. Under Section 7 of the Advocates Act, the BCI was empowered to take action in such extraordinary and exceptional cases although the provisions of Section 53 (3) of Chapter V of the Advocates Act stipulates that any punishment against an advocate should be passed only after giving the accused the opportunity of a hearing.

At a recent meeting in Tiruchi, lawyers passed resolutions demanding that Parliament take steps to repeal Section 217 (1) (b) of the Judges Protection Act, 1985, and the Judicial Officers Protection Act, 1850, which provide immunity to judges. They met in Chennai on October 4 to discuss their future course of action. S. Vanchinathan, one of the suspended lawyers, said the act of the judiciary was “bizarre since showing protest in a peaceful and democratic manner is the fundamental right of every citizen”.

He suspected that the latest action of the judicial establishment had to do with the state’s annoyance with lawyers like him who fight for social causes. “Lawyers in Tamil Nadu have been fighting on many social issues such as the death penalty, sale of liquor, land acquisition, Samacheer Kalvi and illegal looting of minerals. We point out the frailty in their judgments on these issues that compromises neutrality and fairness. We insist on their accountability. But we have been misread and misrepresented in this issue wantonly,” he claimed.

“It is simply harassment,” said C. Raju, another advocate who was imprisoned after being slapped with a string of cases for taking up issues such as the illegal sand mining on the Vellar riverbed. Raju, who escaped being charged under the Goondas Act by a whisker, thanks to strident support from a group of lawyers and activists, pointed out that the suspended lawyers were yet to know the charges against them.

Different courts have on various occasions taken up issues concerning the professional ethics of advocates. In an order dated December 7, 2010, a Supreme Court bench consisting of Justices Markandeya Katju and Gyan Sudha Mishra deplored Bar Associations for passing certain resolutions that were against legal ethics. The Bar Association of Coimbatore passed a resolution in 2007 that none of its members would defend the policemen involved in a scuffle with lawyers in which a lawyer was injured. The High Court bench, however, quashed the criminal cases filed by the policemen and the lawyers, maintaining that professional ethics should be maintained and that it was “against all norms of the Constitution, the statute and professional ethics” for any Bar Association to pass such a resolution. In 2010, the court even suspended a lawyer, who was a former chairman of the BCTP, for an alleged attempt to influence a judge in connection with a high-profile case involving a Central Minister from Tamil Nadu. The lawyer was said to have behaved in an unruly manner in the open court. A group of lawyers roughed up a police sub-inspector inside the court premises two years ago.

In fact, the Union Law Ministry proposed a draft Bill, “The Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010”, to regulate legal practice, client services, legal education, and so on, besides appointing an ombudsman to investigate complaints against lawyers. The lawyers, however, said that the practice of prohibiting open discussion of the conduct of a sitting judge or the judge’s performance of duties such as delivering judgments rankled them. They are pessimistic about the present system of “in-house procedure” to inquire into allegations against a judge of a superior court through its peer leading to impeachment.

The Supreme Court, in its observation in Additional District and Session Judge X vs Registrar General, High Court of Madhya Pradesh, 2014, stated that in order to ensure that the “investigation process is fair and just [against judges], it is imperative to divest the judge [against whom allegations have been levelled] of his administrative and supervisory authority”. Many such issues continue to be hotly debated both in and off the corridors of the judiciary.

In connection with a public interest litigation (PIL) petition in 2014 seeking to forbid those with a degree in law obtained in other States from practising in Tamil Nadu, the then Director General of Police (DGP) told the Madras High Court that 1,200 lawyers in the State had criminal backgrounds and faced 1,424 cases, including charges of murder, theft, harassment of women, dowry violence and atrocities against Dalits. “But by mentioning individual cases, you cannot criminalise the entire legal community,” Vanchinathan said.

But Justice Chandru differs. He is of the opinion that court campuses have increasingly become the “stage for political shows”. “There is decreasing professionalism among lawyers. Instead of finding out the real reasons for the decline of the profession, the Chief Justice of India is lamenting the bygone era. What is required is a thorough study of the sociological basis of the decline starting from legal education to equitable distribution of briefs and improved quality of service by lawyers, including weeding out the incorrigible ones. Action against lawyers found to be indulging in anti-social behaviour is long overdue,” he said.

The legal profession in Tamil Nadu is facing an acute credibility deficit. Legal luminaries feel that the profession will lose its glory if the bench-Bar confrontation continues. As the Supreme Court once said: the right to be defended should not also be abused. But lawyers, especially the ones whose licences have been suspended, feel that they are “more sinned against than sinning”.

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