Striking lawyers and challenging issues

On July 30, 2004 the Madras High Court issued a judicial notification to regulate the practice of advocates before courts in Tamil Nadu. The advocates reacted vehemently demanding the immediate withdrawal of the notification on the ground that the notification was draconian and made serious inroads into guarantees of speech and expression promised by the Constitution of India. Reacting to the demands, the Madras High Court suspended the operation of the notification but the lawyers will settle for nothing less than total withdrawal. The problem about the notification is that portions of it curtail even bona fide criticism of the system. Strangely, if the provisions of the notification were applied to the writings and other expressions of thought of even renowned jurists and lawyers, they can today be proceeded against.

Here are a few examples:

Writing in The Times of India in July 1990, Nani Palkhivala, had this to stay about the judicial system: "The slide on the inclined plane has been rapid and unmistakable. In the first two decades of our republic it was the compulsion of veracity, not the fear of the law relating to contempt of court, which was responsible for the fact that no charges of corruption were levelled against the judiciary. Now the compulsion of veracity dictates such charges, in defiance of the Contempt of Court Act. The Lawyers' Associations of Bombay passed a resolution last month virtually charging some judges of the High Court with corruption, a move unprecedented in the history of any modern democracy... For the lawyers, it was a cry of despair." The notification states: "No advocate shall speak ill of the judges or make disparaging remarks about proceedings of the court." Mr. Palkhivala would have clearly thrown himself open to action by application of the provisions of the notification.

Or, look at what the National Commission to review the working of the Constitution, which included several eminent advocates among its members, says about the judicial system in para 2.26.9 relating to approach and perspective: "[The] judicial system has not been able to meet even the modest expectations of the society. Its delays and costs are frustrating, its process slow and uncertain. People are pushed to seek recourse to extra-legal methods for relief. [The] trial system both on the civil and criminal side has utterly broken down." With respect to this, the notification states: "No advocate shall proclaim that he owes no allegiance to courts and had no faith in courts." The statements of the National Commission would clearly display a total lack of faith in courts and thus would be amenable to action under the notification.

What is more, an ex-Chief Justice of the Supreme Court has declared in public that 20 per cent of the judiciary was corrupt.

It is the stark unreasonable nature of portions of the notification that has impelled lawyers to seek its total withdrawal. The High Court has stopped with suspending the notification and therefore the predicament is: how is this perplexing issue to be resolved?

Disapproval of boycott

Lawyers have gone on boycott. The judgment of the Supreme Court in Harish Uppal's case stares at them in their face. The apex court has strongly disapproved of boycott as a means of expressing dissent. It suggests that advocates should resort to peaceful methods to express their protest. Totally unexceptionable; resoundingly correct. But strikes still happen. Why? It is because there is no intra-institutional structure within which a solution can be found. If the peaceful protests were to continue for about a month and no solution is forthcoming, what happens? It is desirable that the Supreme Court should consider ruling that in all such cases the High Court should, within 24 hours (or such other period as the court may deem reasonable) of a note of protest being registered, constitute a committee consisting of judges and representatives of the aggrieved party to find a solution to the problem.

CJI can act

In the agitation that is currently attracting wide attention, members of various bar associations have petitioned the Chief Justice of India to intervene and resolve the issue. The Chief Justice is not without powers to resolve the issue. Article 142 of the Constitution of India empowers the Supreme Court to "make such order as is necessary for doing complete justice in any cause or matter pending before it."

There is also a precedent. A judge of the Allahabad High Court wrote a letter to the Chief Justice of that court. He said that as he sat in a Division Bench hearing cases for admission, counsel who argued a case objected to the judge asking a question. He also abused the judge in foul language. The Chief Justice of the Allahabad High Court forwarded the letter to the Chief Justice of India. The Supreme Court in 1995 initiated suo motu contempt proceedings. It ultimately found the advocate guilty of contempt of court. It held that as the letter of the Chief Justice of Allahabad had been entertained by the Chief Justice of India, "a cause" was pending before it and it could therefore pass orders to do complete justice between parties.

The Supreme Court may now exercise similar power and the letters of the Advocates' Association may be treated as sufficient cause for the court to exercise its powers under Article 142 of the Constitution of India. In its judgment relating to the Allahabad High Court matter, the apex court rightly addresses itself as a "problem-solver in nebulous areas." Such intervention may resolve the current deadlock in Tamil Nadu.

(The writer is an Advocate at the Madras High Court.)