Recently, the High Court amended Section 34 (1) of the Advocates Act to debar those advocates guilty of professional misconduct from practicing
By R Ramasubramanian in Chennai
Lawyers in Tamil Nadu are up in arms against a move by the Madras High Court (MHC). The reason is the High Court’s decision to debar advocates for professional misconduct. This power was hitherto vested with the Bar Council of India and the Tamil Nadu Bar Council.
However, unlike previous tussles between the bar and the bench, this time, the advocates’ community is vertically divided on this issue. While a section of lawyers, especially those who owe allegiance to the Madras High Court Advocates’ Association (MHAA), vehemently opposed this move, another section welcomed it.
ENOUGH IS ENOUGH?
The High Court’s unprecedented move took place on May 27. The next day, almost all national English dailies from Chennai reported that the Rules under Section 34 (1) of the Advocates Act had been amended to debar an advocate in the light of unruly scenes last year both in the Madurai bench of the MHC and in the parent premises in Chennai. Going a step further, the MHC has also nudged the state government to issue a gazette notification in this regard.
As per the amended rules which come into force with immediate effect, a lawyer is said to have indulged in professional misconduct when:
- He or she is found to have accepted money in the name of a judge or on the pretext of influencing a judge
- When he is found to have tampered with the court record or court order
- When an advocate browbeats and/or abuses a judge or judicial officer
- When an advocate who is found to have sent or spreads unfounded and unsubstantiated allegations\petitions against a judicial officer or a judge to the Supreme Court
- When an advocate actively participates in a procession inside the court campus and/or is involved in gherao inside the court hall or holds placards inside the court hall
- When an advocate appears in court under the influence of alcohol.
The amendment says that the unruly law-yer shall be debarred from appearing before the High Court or subordinate courts permanently or for such period as the court may think fit. The registrar-general shall report the same to the Bar Council of Tamil Nadu.
The same holds good for an unruly lawyer in a principal sessions court as the principal sessions judge (PSJ) can take the same action as far as his or her appearance is concerned in the sessions courts and all the subordinate courts falling under the purview of the PSJ. The rest of the subordinate courts have been vested with the power to recommend to the PSJ to debar a delinquent advocate.
Angered by this new development, a few thousand lawyers took out a procession in Chennai on June 6, demanding that the MHC withdraw its new amendment. The procession was, to a large extent, organized by the MHAA. “The High Court has in-fringed upon the powers of the Bar Council. The notification is a violation of Section 35 (1) of the Advocate Act, which empowers the Bar Council to initiate actions against erring advocates. This amendment has been done with the intention of scaring the advocate community,” said PS Amal Raj, vice-president of the Bar Council of Tamil Nadu and Puducherry.
Echoing these sentiments, RC Paul Kanagaraj, president, MHAA, said: “I am opposed to Section X in 14-A, which prevents advocates from staging an agitation on the campus. Advocates will not go to the corridors and stage demonstrations. However, we have the right to stage agitations in the campus. Likewise, advocates can lodge complaints against a judge and it is up to the High Court to take cognizance of it….”
But there were several jurists, including retired High Court judges, who welcomed these new amendments. “In 2009, in the RK Anand case, the Supreme Court directed all High Courts in the country to frame rules under the Advocates Act within two months. It is after a lapse of nearly seven years that the MHC has acted on it,” said K Chandru, a retired judge of the MHC. He added: “Following a series of unpleasant incidents last year, the MHC ordered CISF security on the campus and felt that it should frame rules by amending Section 34-1 of the Act to take action against erring lawyers. By this amendment, the MHC has not violated the law and the rules are framed as per direction of the Supreme Court. The rules do not interfere with the powers of the Bar Council.”
A large section of unbiased lawyers too welcomed the new amendment. “This is what we deserve because the Bar Council was very ineffective in dealing with some of our erring colleagues. Those who adhere to the law and decent behavior have no reason to be apprehensive about this notification,” said Sudha Ramalingam, one of the state’s leading woman advocates.
Normalcy was restored in the MHC just a few months back after quite a bit of turmoil. The trouble between the agitating lawyers and the judges reached its peak last year when a group of advocates with their family members—including a child—entered the court hall of the chief justice and staged a day-long dharna. They were demanding that Tamil be made the official language of the Court. Repeated protests and processions inside the court premises became a constant headache for the bench.
In October last year, a division bench headed by Justice Sanjay Kishan Kaul directed the center that the High Court campus be brought under the control of the Central Industrial Security Force (CISF). Accordingly, MHC was brought under CISF cover from November 2015. In fact, the Supreme Court itself opined in August 2015 that judges were working under constant fear in the MHC as they did not know when a group of lawyers would barge into their court halls.
Meanwhile, it was reported on June 8 that Bar Council of India chairman Mannan Kumar Mishra had taken a serious view of the June 6 rally. Reports suggested that Mishra had instructed the Tamil Nadu Bar Council to initiate action against those responsible for rallies and boycotts.
It may be recalled that the BCI had suspended 44 lawyers in Tamil Nadu for their unruly behavior last year and this was supposed to be a record number in the country. Advocates are having a running battle with judges in MHC for the past several years for various reasons.
Sadly, it’s litigants who suffer the most due to such court battles.