Restoring order in the court

Attention can be focussed on formulating Rules which outlaw egregious misconduct, without impinging on the freedom of expression and practice of law.

Updated - September 28, 2016 03:48 pm IST

Published - August 02, 2016 01:51 am IST

The legal community in Tamil Nadu has been in turmoil since June this year after the Madras High Court released its amendments to the Rules under the Advocates Act, providing for debarment of lawyers who have committed specified misconducts. Other than the High Court, lawyers in most other courts have been on boycott for the last two months. Recently the agitation has escalated, its latest manifestation being the unprecedented and unfortunate siege of the High Court. While the judiciary and the legal profession are the prominent players in this episode, the litigant public suffers silently, unable to get bail, urgent interim orders, or resolution of long-pending cases.

The Rules provide for the court’s power to debar lawyers for coming to court under the influence of liquor, taking money to bribe a judge, gheraoing and organising processions in court campuses, browbeating and abusing judges, making and circulating unfounded and unsubstantiated complaints about judges, and tampering with court records. The genesis of the Rules is a Supreme Court judgment in R.K. Anand’s case, but the primary causation is the failure of the Bar Council to act as the effective regulator of the legal profession.

Sriram Panchu

Unwelcome measures However, it does appear that the Rules have gone too far, and do not carefully draw the line between unwelcome and impermissible conduct. Browbeating, which is what causes most apprehension, is an ambiguous and imprecise term, certainly out of place in cancelling the right of professional practice and livelihood. Making a complaint in the prescribed mode about judicial misconduct is quite different from sending it viral on WhatsApp. Interim debarment is an unwelcome measure. Most importantly, the Supreme Court judgment speaks of debarment for these offences following a conviction for contempt of court, a proceeding ringed with safeguards and procedure; these Rules do not have this essential precondition. The Rules have therefore caused apprehension and grave concern especially in the minds of younger lawyers and practitioners in the lower courts. Representations have been made by Bar Associations and senior lawyers for basic changes.

The High Court has indicated its willingness to reconsider the Rules. It has nominated a larger committee for this purpose. It has sought to reassure lawyers about holding the Rules in abeyance in the meanwhile. There is also assurance that this time the consultation will not be limited to the Bar Associations of the High Court, but will be more broad-based to encompass State- and district-wide bodies. These assurances have not brought about the desired end of the agitation. The leaders of the striking associations demand that the Rules be withdrawn before they come to the discussion table. So we face the classical impasse of a pre-condition preventing the resolution of the problem, which will in all likelihood happen once the process of consultation and consideration begins.

There is a lot at stake here, not just the immediate amendments and their fallout. Strikes and boycotts, demonstrations and gheraos in court campuses and court halls on all kinds of issues were an endemic feature of the legal scene in Tamil Nadu. In the last couple of years, the present Chief Justice, backed by his judges, has handled this phenomenon admirably through determined action. The courts became a place of orderly functioning where lawyers were enabled to represent their clients without fear of obstruction and reprisals. It would be a great pity if these benefits were to be lost, and the situation reverted to competitive gamesmanship of Bar leaders in bringing the system to a halt. That is why resolution of the current problem is even more important.

Taking measures One needs a breakthrough to end the stalemate and resume meaningful dialogue. Perhaps this could come from the following measures. One, the court should announce a new set of draft amendments to the Rules, taking note of the many suggestions that have been received. If the main concerns of the lawyers are seen to be addressed, this will by itself bring about a favourable climate. Two, a framework and schedule for suggestions, representations and proposals should be set out, providing for broad-based consultation. Three, these new draft amendments should state that the current controversial amendments will stand repealed. Four, a categorical reiteration should be made, ruling out any action under the present amendments, irrespective of the changes that may be made to the new draft amendment. Five, the Bar Council of India should rescind the suspension of 126 advocates. These measures should be accompanied by the immediate cessation of the boycott and the return to normalcy in the courts. And the proposal of CCTVs to record happenings in courtrooms and campuses should be seriously considered.

The above course may serve to address the main concerns of the institution and the profession. Attention can be focussed on formulating Rules which outlaw egregious misconduct, without impinging on the freedom of expression and practice of law. We can move to restoration of the relationship between the judiciary and the legal profession. Courts can resume normal functioning. And we can avoid slippage into past behavioural modes which paralysed the courts.

Sriram Panchu is a senior advocate at the Madras High Court.

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