Lawyers up in arms

Print edition : July 08, 2016

Members of the Tamil Nadu Bar Council, Advocates Association and Women Lawyers Association take out a rally against the new disciplinary rules in Chennai on June 6. Photo: M. PRABHU

The Madras High Court amends the Advocates Act, enabling it to debar lawyers from practising on the grounds of discipline, but lawyers see it as a threat to the independence of the legal profession.

THE Madras High Court’s May 20 notification on disciplinary rules for lawyers practising in the High Court and subordinate courts has intensified the Bar-bench confrontation in Tamil Nadu ( Frontline, October 30, 2015). The rules framed under Section 34 (1) of the Advocates Act, 1961, list out the grounds under which judges could initiate disciplinary action suo motu against lawyers for misconduct in their respective courts. The rules empower the judges of the High Court and the subordinate courts to initiate stringent actions such as debarring a lawyer from practice either permanently, or until such time as the court may think fit.

The amendments to rules 14A, 14B, 14C and 14D, with subclauses added to the existing provisions in the Act, stipulate action against a lawyer for tampering with court documents, orders and records, spreading unfounded and unsubstantiated allegations against a judicial officer or a judge in a superior court, participating in agitations on the court premises, appearing in the court under the influence of liquor, and abusing and browbeating a judge. In fact, Clause 1 of Section 34 under Chapter IV (Right to Practice), under the caption “Power of High Court to Make Rules”, allows the High Court to lay down the conditions “subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto”. The Madras High Court Advocates Association (MHAA) and other Bar Councils across the State have demanded that the new rules be withdrawn immediately as, according to them, the amendments constitute “a serious threat to the independence of the legal profession”.

The Advocates Act, they pointed out, had detailed provisions to deal with the issue of discipline. Section 35 dealing with “Punishment of Advocates for Misconduct” in Chapter V (“Conduct of Advocates”) of the Act stipulates that the State Bar Council, upon receiving a complaint of professional or other misconduct, shall refer the case to its disciplinary committee which, after giving the advocate concerned an opportunity to be heard, and on the basis of the merits of its findings, may dismiss the complaint, reprimand the advocate, suspend the advocate from practice or remove his/her name from the State roll of lawyers.

Sections 36 (Disciplinary powers of the Bar Council of India) and 42 (Powers of the disciplinary committee of the Bar Council of India) and Section 58B (Special provisions relating to certain disciplinary proceedings) have laid out the powers and responsibilities of the Bar Councils in dealing with professional or other misconduct of an advocate. Besides, there are provisions in the Indian Bar Council Act, 1926, for taking action against an erring advocate.

N.G.R. Prasad, a senior counsel in the Madras High Court, said: “The Advocates Act per se has adequate deterrent mechanisms to rein in any lawyer accused of any professional misconduct.”

As expected, boycotts, protests and rallies erupted across the State against the new rules, forcing the Bar Council of Tamil Nadu-Puducherry to dispatch a batch of show-cause notices to a few district Bar Councils seeking explanation for the “open defiance” of protesters. On June 6, hundreds of lawyers took out a rally in Chennai. They insisted that the matter should be left to the lawyers concerned and the respective State Bars, which are empowered to handle such sensitive issues. The judiciary’s intervention “is a transgression into the domain of professional freedom of lawyers”, another senior lawyer said.

MHAA president R.C. Paul Kanagaraj said that the recent general body meeting of the association in Chennai decided to submit a memorandum to the Chief Justice of the High Court urging him to withdraw the notification, which he said was against the fundamental rights of lawyers. “It robs lawyers of the self-respect and dignity in the discharge of their functioning as professionals…. The rules confer unbridled powers on the courts to proceed against a lawyer,” he said. Prasad said the High Court framed the “draconian” rules on the basis of the Supreme Court judgment in the Harish Uppal and R.K. Anand case in 2009, wherein it instructed the High Courts to lay down disciplinary rules for advocates. “But the Supreme Court’s verdict was in the context of contempt proceedings,” he said.

The agitating lawyers pointed out that the new rules empowered the judiciary to don the mantle of a “supercop” on the court premises. They were apprehensive of the use of terms such as “abuse” and “browbeating” in the amended rules. S. Vanchinathan, one of the lawyers from Madurai suspended for participating in an agitation, said the amendment to the rules was oppressive.

In its ruling in the K.V. Anand case (2009), the apex court said that appropriate rules were required to be framed by the High Courts under Section 34 (Power of High Courts to make rules) by making it clear that a strike by advocates would be considered an interference with the administration of justice and that the advocate/advocates concerned could be barred from practising before courts in a district or in the High Court.

Lawyers point out that the relationship between the bench and the Bar should be based on “mutual trust and respect and not on fear and suspicion”. They are contemplating legal action against the new rules. In 2004, the High Court formed a five-member committee to frame disciplinary rules when advocates resisted the setting up of the Madurai Bench, but withdrew it subsequently.

Justice K. Chandru, a former High Court judge, welcomed the amended rules saying that it would help discipline unruly lawyers. He said the High Court had until now relied on the Bar Council to take action against erring lawyers. “Now it can initiate its own action,” he said. Campus discipline was of paramount importance, he said in an interview to the media.

Ever since the clashes between lawyers and the police on the Madras High Court premises in 2009, courts in Tamil Nadu, especially the Madras High Court, have turned into venues of unsavoury incidents. A series of violent incidents resulted in the suspension of 15 Madurai-based lawyers on September 26, 2015, on charges of misconduct and unethical behaviour for raising slogans inside the court halls and corridors, and staging dharnas and protest rallies.

The fight between the Bar and the bench warrants an early solution. Escalation of the confrontation between the Bar and the bench is a cause for worry not only to socially conscious people but also to hapless litigants.