A recent amendment made by the Madras High Court to its 46-year-old statutory rules to derive the power to debar lawyers indulging in misconduct from appearing in courts, either permanently or for a specific period of time, has evoked a mixed response from advocates. But, judges are of the opinion that the rules have been amended for the better.
A judge of the High Court pointed out that the 1970 rules, framed under Section 34(1) of the Advocates Act 1961, had not been amended by the court unilaterally but only in compliance of a 2009 Supreme Court directive. “In fact, the apex court had directed all High Courts to frame the rules within four months and we have taken more than six years to comply with the order,” he said.
The directive was issued by a three-judge Bench of the apex court on July 29, 2009, while dealing with a case related to disciplinary action initiated against a senior counsel representing the accused in the infamous 1999 BMW hit-and-run case in Delhi. Then, the Supreme Court expressed concern over many High Courts not having laid down conditions of practice for lawyers.
It said that all High Courts must lay down conditions of practice for lawyers to protect themselves and subordinate courts from instances “where an advocate is shown to have accepted money in the name of a judge or on the pretext of influencing him; or where an advocate is found tampering with the court’s record; or where an advocate is found actively taking part in faking court orders.”
The other instances cited by the apex court included “where an advocate has made it a practice to browbeat and abuse judges and on that basis has earned the reputation to get a case transferred from an ‘inconvenient’ court or where an advocate is found to be in the habit of sending unfounded and unsubstantiated allegation petitions against judicial officers and judges to the superior courts.”
The Bench of Justices B.N. Agrawal, G.S. Singhvi and Aftab Alam also said: “Unfortunately these examples are not from imagination. These things are happening more frequently than we care to acknowledge. We may also add that these illustrations are not exhaustive but there may be other ways in which a malefactor’s conduct and actions may pose a real and imminent threat to the purity of court proceedings.”
Another judge of the Madras High Court said that the wordings of the latest amendment made to the statutory rules had actually been borrowed verbatim from the Supreme Court judgement. “Though lawyers say that the term ‘browbeat’ had not been defined in the rules and therefore it would pave way for misuse of the power to debar, we don’t see any cause for worry because there are enough safeguards.
Last resort
“In the same judgment, the Supreme Court had made it clear that the extreme step of debarring an advocate should be taken very rarely and only as a measure of last resort in cases where the wrong doer advocate does not at all appear to be genuinely contrite and remorseful for his conduct.
“Therefore, the lawyers’ fear of the power being misused by High Court judges is without any basis,” he said.
However, L. Shaji Chellan, an advocate practising in the High Court Bench here and Tamil Nadu State committee secretary of All India Lawyers Union (AILU), said that it was undemocratic on the part of the High Court to have usurped the power of Bar Councils to act against erring lawyers.
He said that his union had urged all bar associations in the State to demand withdrawal of the amendment.
Supreme Court had asked all HCs to lay down conditions for practice of lawyers to protect themselves
