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Sunday Anchor: Inside the court, outside the law

Courting controversy: Strikes called by lawyers are a fairly common occurence in India. Picture shows lawyers protesting in Jaipur in 2013 against a police lathi- charge on them. Photo: Rohit Jain Paras   | Photo Credit: Rohit Jain Paras

No professional community organises protests and strikes as frequently as lawyers do, and the Bar Council of India and its State wings have been virtually powerless to stop them so far. Now, finally, the community seems to have crossed the invisible line, and it looks as if the higher courts are prepared to throw the book at them

On February 19, 2009 there was an appalling clash between lawyers and policemen inside the grounds of the Madras High Court, in which over 100 people were injured and a police station on the court premises was burnt to the ground. The incident followed two tumultuous weeks which had seen several hundred advocates of the Tamil Nadu court vocally sympathising with the cause of the Liberation Tigers of Tamil Eelam (LTTE) and opposing the policies of the Sri Lankan government.

The incident caused something of a crisis for the Dravida Munnetra Kazhagam (DMK) government in power at the time, and the Supreme Court appointed a committee under Justice B.N. Srikrishna, a retired judge of the Supreme Court, to examine the incident. The Srikrishna Committee report came down heavily on the police for using excessive force on the protesting lawyers, but it also noted that it was the lawyers who had started the confrontation. This, Justice Srikrishna said, was in large part because of the ‘soft pedalling’ by high court judges when the lawyers’ strikes and protests had first started.

“The incidents that transpired over the last month or so make it clear that the lawyers seemed to be under the impression that because they are officers of the court, they are immune from the process of law and that they could get away with any unlawful act without being answerable to the law enforcing agency,” the report said.

In the report thereafter, Justice Srikrishna urged the Supreme Court to “take this opportunity to exercise its constitutional powers and lay down sufficient guidelines for the behaviour of the lawyers... as the bar councils have not been acting as an effective regulatory body of their professional conduct”. The report also said it would be ideal if the Advocates Act was amended to ensure a better disciplinary mechanism for the profession of law.

Repeating history

Not much was made of the Srikrishna Committee report after 2009, but those observations seem almost prescient in the light of the events that have taken place in court over the last few weeks. On September 14, a group of lawyers entered the court of the Chief Justice of the Madras High Court holding placards and remained there for the whole day. They were demanding that Tamil be declared  the official language of the court. Despite their presence in the court room, Chief Justice Sanjay Kishan Kaul did his best to ignore them and ensure that the regular business of the court proceeded as usual. When the protesting lawyers refused to yield at the end of the day, they were arrested and remanded.

  • In all cases of protests, the advocates on strike have been censured by the courts and reports show that litigants are the biggest losers.

Another related protest also led to equally unedifying scenes. On June 8, the Madras High Court passed an order mandating the wearing of helmets by those who ride two-wheelers. A section of lawyers at the District Bar in Madurai, for reasons that are still unclear, decided to protest against the order. They took out processions, held meetings, and distributed pamphlets in which the judiciary was denounced and several allegations were made against sitting judges. In response to the inflammatory nature of some of these speeches, the Madras High Court invoked contempt proceedings against the president and secretary of the Madurai District Court Advocates Association. The hearing of the contempt application again witnessed a series of protests, with three busloads of advocates from Madurai entering the court campus and directing abuse against the judge hearing the case.

Having failed to draw the line on several earlier occasions, finally this time the judges of the Madras High Court acted swiftly — they realised that a line had been crossed. Altercations between the police and lawyers are regular occurrences, but such an open challenge to the authority of the court itself made it far more serious. The Chief Justice immediately ordered that the court campus should be secured with protection from the Central Industrial Security Force. The High Court also issued notices to the protesting bar associations, asking them why they should not vacate the premises allotted to them inside the High Court.  This, along with the contempt notices issued to bar association leaders, constitutes the strongest action taken by the courts in years. The Bar Council of India also pitched in, suspending 15 advocates who had indulged in violence in the court premises.  The important question, however,  is if  these measures are enough, and what can be done to effectively deal with the larger issue of frequent lawyer strikes.

Tamil Nadu, unfortunately, has a long history of lawyers going on strikes at the drop of a hat for various reasons. The losses, in terms of working days for courts already burdened with a high number of pending cases, have only compounded over the years. A report published in this newspaper in 2010 for instance (“Lawyers to abstain from courts opposing entry of foreign law firms” ) quotes official statistics for 2009 to show that lawyers in Chennai abstained from attending court proceedings for 32 days, those in Coimbatore for 56 days, and those in Madurai for 44 days.

On September 28 this year, the Lawyers Association of Madurai District Court, a body of senior advocates, appealed to their fellow lawyers to call off strikes because courts in Madurai had lost 70 working days this year alone.

Infamous case of Tamil Nadu

( Recommendation: The Madras High Court has suggested that BCI should stop the three-year law degree course and retain only the five-year degree to standardise the quality of education. File photo: shows law students at the fifth convocation of the National University of Advanced Legal Studies in Kochi. Photo: Thulasi Kakkat)

Why is Tamil Nadu notorious for lawyers going on strike? Senior lawyers in the State point out that part of the problem is mixing politics with law. The structure of the State’s numerous bar associations often mirrors political structures, with representative groups from political parties such as the All India Anna Dravida Munnetra Kazhagam, DMK, Paattaali Makkal Katchi, and so on. Boycotts and strikes over various issues therefore become a competitive process to display political one-upmanship, with the causes taken up having little to do with the independence of the judiciary or the working conditions for lawyers, the real issues on which associations such as these could rally around.

In the past few months alone, protests have been called on issues as diverse as the ill-treatment of Tamil people in Sri Lanka and the ban on beef in Maharashtra to the under-representation of some communities in collegium appointments and helmets being made mandatory for two-wheeler riders.

The working of these various associations is also equally a cause for concern. “There is no democratic voting that goes on. If there is a meeting of the association and the leaders call for arranging a boycott, then other members have no choice but to follow the diktat because if they dissent, they will be shouted down,” says Arun P., a Chennai-based advocate. In the so-called election of the leaders of these associations, huge sums of money are spent for what are seen as lucrative posts because of the power they wield.

Quality of lawyers

Underlying all this is a growing concern about the quality of lawyers now entering the profession and how standards of ethicality and integrity can be maintained. “It is almost as if the image of the lawyer in public perception has been split into two now,” remarks a senior advocate. “On the one hand there are lawyers who take up causes for their clients, and on the other is a growing section that simply uses the position of being a lawyer to secure their demands in a completely unlawful manner.”

  • Tamil Nadu is especially notorious for lawyers going on strike, as politics is often mixed with law, say senior advocates.

Given Tamil Nadu’s long and complicated history with lawyers’ strikes, the State is now undertaking some significant debates on the cleansing of the legal profession. On October 6, the Madras High directed the Union government to consider entrusting the functions of the Bar Council of India (BCI) to an expert committee headed by a retired Supreme Court judge. The BCI is currently the body entrusted with regulating the legal profession and to deal with lawyers who step out of line.

The court said this expert committee could consist of academics, legal luminaries, doctors, prominent social workers, and retired Indian Administrative Service officers and police officers; and shall be entrusted with the functions of the BCI permanently or till the Advocates Act is suitably amended so that the entry of criminal or extremist elements into the profession is barred. Besides the suggestion for a body of experts, the Madras High Court also suggested that the BCI should stop the three-year law degree course at the earliest and retain only the five-year degree to keep the degree on a par with other professional courses such as medicine and engineering.

These suggestions for quality control closely follow a speech given by the current chairman of the BCI, Manan Kumar Mishra, in Chennai, in which he stated that 30 per cent of the lawyers in the country hold fake degrees and that this was a major reason why strikes keep happening. The number of advocates in the country has been pegged at close to 1.7 million.

Other protests

The suggestion of the Madras High Court for an expert committee to replace the BCI could have important implications nationally. While Tamil Nadu may have always provided the most extreme examples of protest, strikes called by lawyers are a fairly common occurrence across the country.

Of the 1.7 million-odd lawyers in India, over 30 per cent have fake degrees.

  • — Manan Kumar Mishra, Chairman, Bar Council of India

In July this year, lawyers of Delhi’s district courts began an indefinite strike against the delay in passage of an amended bill in Parliament on enhancement of pecuniary jurisdiction of trial courts. The Bill was supposed to reduce the workload of the Delhi High Court and transfer several cases to the lower courts. A parallel protest was held by the Delhi High Court Bsssar Association against the passage of the Bill and things reached such a stalemate that a non-profit organisation called Common Cause filed a Public Interest Litigation in the Delhi High Court calling for the strikes to end. Appearing on their behalf, advocate Prashant Bhushan asked the court to direct the BCI to incorporate appropriate rules that prohibited advocates from striking work in the Standards for Professional Conduct and Etiquette framed under the Advocates Act, 1961.

In June, lawyers in Pune went on strike demanding that a Bombay High Court bench be established there. That strike went on for over two weeks. Similar strikes over the setting up a of a high court bench have frequently taken place in western Uttar Pradesh as well. In July this year, thousands of lawyers in Bihar called a strike protesting over alleged corruption in the lower judiciary while in Rajasthan last year, advocates called a strike lasting about 68 days to press for a range of demands including a corruption-free judiciary, misuse of contempt provisions, disposal of pending cases against judges, probe into legal aid funds, and irregular judicial appointments.

Enforcing order

In all these cases, the advocates on strike have been censured by the courts and there are numerous reports of litigants being the biggest losers, as they have to contend with even further delay in the hearings of their cases. The reality is that no other professional community organises protests and strikes as frequently as lawyers do — and the Bar Council of India and its state wings have been virtually powerless to stop them.

The issue of whether lawyers can go on strike was addressed by the Supreme Court in Common Cause vs. Union of India in 2005. The Court held that it was unprofessional for a lawyer to strike, or boycott the court, that bar associations should not permit meetings calling for such strikes or boycotts, and such requisitions should be ignored. And that it is the duty of the State and National Bar Councils to take action against striking bar associations and sponsors of boycotts. 

Last, it held that it is only in the rarest of rare cases that abstention from court is justified, such as dignity, integrity and independence of the Bar and Bench, and the importance of the matter would be decided by the judge heading the Court. If valid, the Court said a protest could be held, but for only one day.

This order has, of course, never been enforced in full spirit, either by the apex court or the Bar Council. The legal community has been given a long rope for too long, perhaps in recognition of the fact that strained relations between the bar and bench creates a difficult problem to deal with. It may now be time for a new outlook and tougher regulations.

Some major protests in Tamil Nadu

  • February 19, 2009: Several hundred advocates sympathise with the cause of the LTTE and clash with policemen inside the grounds of the Madras High Court. Over 100 people injured.
  • January 8, 2014: Demanding transparency in the appointment of new judges and recalling a list of 12 names sent to the Supreme Court, over 15,000 advocates of Madras High Court boycott court proceedings.
  • September 14, 2015: Lawyers with their families enter the court of the Chief Justice of the Madras High Court, demand that Tamil be declared as the official language of the court.
  • June and July 2015: Madras High Court makes wearing helmets compulsory in the State. Nearly 100 advocates are booked for taking out a two-wheeler rally without wearing headgear in protest against the order.

Some major protests across the country

  • 2014: Advocates in Rajasthan call a strike that lasts for about 68 days to press for various issues including a corruption-free judiciary, irregular judicial appointments, and disposal of pending cases against judges.
  • June, 2015: Lawyers in Pune go on strike for two weeks demanding that a Bombay High Court bench be established there.
  • July, 2015: Lawyers of Delhi’s district courts begin an indefinite strike against the delay in passage of an amended bill in Parliament on enhancement of pecuniary jurisdiction of trial courts. A parallel protest is held by the Delhi High Court Bar association against the passage of the Bill.
  • July, 2015: Thousands of lawyers in Bihar call a strike protesting over alleged corruption in the lower judiciary


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Printable version | Jan 25, 2022 2:51:35 AM |

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