~By Rajesh Kumar
While the judges are the keepers of law, advocates act as the prime initiators. The two must act in unison if justice is to be meted out impartially. At this point, though, the advocates seem to be in a position to interrupt the justice process and the judiciary has taken a strong stance against it.
It was assumed that the respective bar councils would do the job of disciplining the advocates and keeping order inside and out the courts. But this has not happened. The chaos that ensued when Kanhaiya Kumar was produced at Patiala Courts is a case in point. It has been seen that the bar councils are unlikely to wield the baton on one of their own. The current Advocates’ Act has also proved inadequate.
Hence the court stepped in. The Madras High Court had introduced new sets of disciplinary rules for the advocates through an amendment, enabling it to debar lawyers who indulge in objectionable behaviour. In a notification published on May 20, 2016, new Rules 14A, 14B, 14C and 14D were added to the existing Rules under Advocates Act.
This has created bad blood among advocates, but probably some form of disciplining was necessary.
The matter does not stop with lawyers. Even truant and errant judges should be brought under some rein, the Supreme Court has found, especially through the Justice CS Karnan episode that is still on.
The law laid down in C Ravichandran Iyer case—where the Supreme Court took note of the ineffectiveness of the impeachment process and formulated an alternative in-house mechanism—was that complaints could be given to the high court or Supreme Court and matters could be investigated discreetly.
If a false complaint is made, it certainly affects the reputation or the career of an otherwise competent and honest judicial officer. But that price is paid by every citizen against whom false cases are imposed. The case of Justice Karnan has seriously harmed the credibility of the judiciary.
In cases related to lawyers, Section 34 of the Advocates Act 1961 gives high courts the power to frame rules to determine who can practice before it and the lower courts under that High Court. In parallel, the power to lay down professional standards for practice and enforce such standards has been vested with the bar councils under Section 35 of the Advocates Act.
The Supreme Court sided with the high court in a tussle between the Kerala High Court and the Bar Council of India. The Kerala High Court had framed Rule 11 which prevented advocates who had been held in contempt of court from practising before it or lower courts in Kerala until the contempt was “purged”.
This was irrespective of whether that advocate had been disbarred by the Bar Council.
A three-judge bench of the Supreme Court upheld the Kerala High Court’s rule in its judgment in Bar Council of India v State of Kerala.
The Supreme Court clarified that in debarring an advocate from appearing before the court, the High Court was not trying to discipline the advocate, but upholding the dignity of the court.
The directions of the Supreme Court in the Harish Uppal and RK Anand cases are clear in re-affirming the power of the court to discipline advocates so that proceedings in the courts may be carried out and dignity of the court is maintained.
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, these 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.
Lawyers have long argued that self-regulation under the Advocates Act & Bar Council rules is the best form of regulation for lawyers, like other professionals. The powers vested in the state bar councils and the Bar Council of India to frame standards for professional conduct and punish advocates who engage in professional misconduct has, relative to the problem at hand, been little used.
The reason for this is that, the members of the Bar Council are elected by lawyers themselves and have little incentive to go after instances of indiscipline when it affects their chances of re-election. This is especially true for those lawyers who have the backing of the local Bar Association which is usually more influential among lawyers. This also explains the proliferation of lawyer’s strikes and boycotts, and also the ugly violence in the Patiala House Court vis-a-vis Kanhaiya Kumar.
These kind of incidents obliged the High Court to amend the rules as per section 34 of the Advocate Act to discipline the lawyers who browbeat or abuse judges, lay siege to court halls, tamper with court records, appear in court under the influence of liquor, spread unsubstantiated allegations against judges or accept money either in the name of a judge or on the pretext of influencing him.
Hence the Madras High Court introduced the new disciplinary rules for advocates through an amendment, enabling it to debar lawyers who indulge in objectionable behaviour.
The following are misconducts enumerated in the rules: (i) an advocate who is found to have accepted money in the name of a judge or on the pretext of influencing him; (ii) an advocate who browbeats and/or abuses a judge or judicial officer; (iii) an advocate who is found to have sent or spread unfounded and unsubstantiated allegations/petitions against a judicial officer or a judge to the superior officer; (iv) an advocate who actively participates in a procession inside the court campus and/or is involved in gherao inside the court hall or holds placard inside the court hall; (v) an advocate who appears in the court under the influence of liquor.
The Madras High Court Advocates Association, in a unanimous resolution, has expressed its “deep” concerns about the newly introduced amendments to rules framed under S.34 (1) of the Advocates Act, by the High Court. It has requested the chief justice of the Madras High Court and his companion judges to forthwith withdraw the amendments brought to the rules under S.34(1) of the Advocates Act.