Browbeating, prerogative of lawyers?

A majority of lawyers are happy with the new rules of conduct framed by the Madras High Court.

The article titled “ >Do not browbeat lawyers ”, published on the Perspective page on June 3, presents a one-sided version of the issue on hand. A majority of the lawyers in the State, who want the smooth functioning of the courts in a peaceful atmosphere, are happy with the rules. Only a handful of lawyers who thrive on browbeating judges think otherwise, and a section of the junior members of the Bar are misled by such persons.

As an elected member of the Bar Council of Tamil Nadu and as the co-chairman of the Bar Council of India, I come across, on a daily basis, innumerable cases of misbehaviour by some members of the legal fraternity, not only with litigants but also with their own brethren as well as with judges. As a few drops of poison have the potential of spoiling the entire pot of milk, these lawyers spoil the image of the profession in entirety. Therefore, the High Court was constrained, in the backdrop of directions issued by the Supreme Court in the infamous BMW case ( R.K. Anand ), to issue the rules in question.

Rules issued after deliberations

Moreover, the High Court did not unilaterally issue the rules. The Rules Committee comprised three judges of the High Court, the Advocate General of the State of Tamil Nadu and the representatives of the Bar Council of Tamil Nadu and Puducherry, four recognised associations of advocates practising in the Madras High Court, and four recognised associations of lawyers practising in the Madurai Bench of the Madras High Court.

The Rules Committee held meetings on June 6, 2015, December 17, 2015, January 5, 2016 and January 19, 2016. While the representatives of the Bar Council chose to participate in all the meetings of the committee, the elected leaders of Bar Associations absented themselves in one or two meetings. The draft rules were first approved in the meeting of the Rules Committee and then by the full court. Therefore, none of the Bar Associations has any legal right or moral authority to question the rules.

The article under response raises three issues in general. The first is that the rider of “imminent and immediate threat to the purity of the proceedings”, as indicated by the Supreme Court in R.K. Anand , is missing in the rules.

But this objection reflects a complete misunderstanding of the law laid down in

R.K. Anand . In paragraph 146 of its judgment in the case, the Supreme Court was addressing a question as to whether the courts were completely powerless to deal with a lawyer guilty of criminal contempt of court in the absence of necessary rules framed under Section 34 of the Advocates Act. While answering the question in the negative, the Supreme Court said that even in the absence of the rules the court can pass appropriate orders if there is immediate and imminent threat to the purity of the proceedings. After having said that, the Supreme Court cautioned that if orders are passed without framing necessary rules, they may be challenged as without authority. Therefore, in the last paragraph of its judgment, the Supreme Court issued a direction to all High Courts to frame rules within four months. The judgment was delivered on July 29, 2009. The rules have been issued after seven years.

The second issue raised in the article is that more often than not, it is the client who is better informed of the ways of corrupt judges. Let us assume for a minute that it is so. But the matter does not rest there. Clients who wish to take their cases out of the board of honest judges adopt a different route. They engage lawyers who browbeat such judges so that those judges, in order to avoid unpleasantness, recuse themselves from hearing the case. The authors of the article under response know more about this as they enjoy such a privilege more often than not. This is why there has arisen a dire need to address the issue of browbeating of judges.

Lawyers on the rampage The next argument advanced against the rules is that the threat of action for browbeating the judges is intended to silence the lawyers. But the authors have forgotten very conveniently that (i) when rallies and processions were taken out inside court halls obstructing the proceedings, (ii) when courts were boycotted for all and sundry reasons in violation of the law laid down by the Supreme Court in Ex-Capt. Harish Uppal , (iii) when two instances of murder of very notorious lawyers inside the Egmore court complex took place on the eve of elections to the Bar Associations, (iv) when a lady litigant who came to the Family Court in Chennai was physically assaulted by a group of lawyers who also coerced the police to register a complaint against the victim, (v) when a group of lawyers barged into the chamber of a magistrate in Puducherry and wrongfully confined him till he released a lawyer on his own bond in a criminal complaint of sexual assault filed by a lady, (vi) when a group of lawyers gheraoed a magistrate for not granting bail and one of them spat on his face, leading to strong protests by the Association of Judicial Officers, and (vii) when very recently, a lady litigant was physically assaulted by a group of lawyers for sitting in the chair intended for lawyers inside the court hall, lawyers such as the authors of the article under response maintained a stoic silence.

Even lawyers who claim to be human rights activists choose to be silent when the human rights of millions of litigants are affected by boycott of courts. It shows that some lawyers, like the authors of the article under response, have always maintained silence and do not mind being silenced by a few unruly members of the Bar who go on the rampage at times. But they do not want to be silenced by any rule prescribing a decent code of conduct in court halls. The raison d'être appears to be that browbeating is the prerogative of the lawyers and it shall be allowed with impunity.

S. Prabakaran is the Co-Chairman of the Bar Council of India and a Senior Advocate practising in the Madras High Court.