It all began on July 20, 2015. A group of defiant advocates at the Madurai Bench of the Madras High Court boycotted court proceedings. They burnt helmets as a sign of protest against the order of a Single Judge of the Madras High Court: the order made it mandatory for two-wheeler riders to wear helmets.
The Madras High Court took cognizance of the agitation. They issued a suo motu contempt notice to two office bearers of the Madurai Bar Association, who took part in the boycott. 15 more advocates who tried to break in to the court hall during the hearing of contempt proceedings were suspended by the State Bar Council.
In September, tension gripped the Chief Justice’s Court when a group of advocates and a few more not clad in robes, barged into the Court hall when the Court was in session. Managing to stage a sit-in, they raised slogans demanding Tamil to be made an official language of the High Court. This boisterous incident was frowned upon by the Advocates fraternity and invited serious ridicule from the Chief Justice of India.
The outcome of the ruckus created inside the Chief Justice’s Court hall pressed the High Court to come down hardly on the conduct of advocates. An order was passed for providing Central Industrial Securiy Force (CISF) cover to the Madras High Court premises, and since Oct 16th, 2015, the Madras High Court premises has been under the watch of CISF.
Soon after the deployment of CISF, in November 2015, one more incident flared up in the Madras High Court. A group of young advocates got engaged in a verbal spat with a member of the CISF; they were arguing over the video recording of a lady advocate’s frisking. But the suspension of the advocates in that incident was later revoked following an order of a Division Bench.
New disciplinary rules under 34(1)
The wake of these incidents has exasperated the concordance and cordiality between the bar and the bench. The Madras High Court, in an attempt to regulate the conduct of advocates, had exercised its power under Sec.34(1) of the Advocates Act 1961. A new set of disciplinary rules, in compliance with the direction of the Hon’ble Supreme Court in R. K. Anand’s case (R. K. Anand Vs Registrar Delhi High Court, 29.07.2009) was introduced by the Madras High Court. A notice was issued in May 2016, and thus the Madras High Court became the first High Court to frame such disciplinary rules.
The new disciplinary rules were introduced by the High Court through amendments. Several meetings were convened between a three member committee of the High Court Judges and representatives from a few Bar Associations of Madras and that of the Madurai Bench. The new rules are being vehemently and persistently opposed by various Bar Associations in the State. Firstly for the reason that they came into effect without any proper deliberation between the committee and the other Bar Associations in the State. Secondly with the rule itself: any judge under the rule can debar an advocate and exercise his power without proper enquiry. They may even permanently debar an advocate from appearing before any Court.
The new rules are completely silent on the constitution of a disciplinary committee to conduct an enquiry. They are also silent on the powers of the Bar Council to take action against any advocate alleged to be guilty of professional misconduct. Morevoer, there is a clause that permanently debars an Advocate entering a court hall under influence of liquor. This has demeaned the reputation of advocates.
The apprehension of advocates is that the rules may be abused without any reason and without fixing a time period since the rules don't specify any. The vulnerable would be the trial side advocates (District/Moffussil Court, Sub-Courts and Magistrate Courts), who would be put in a tight spot while examining the witnesses and recording of evidence. These disciplinary rules have been called ‘draconian’ laws by advocates who seek for their withdrawal.
Apex Court's Ruling
The power of High Court to frame rules under Sec.34 of the Advocates Act was initially observed by the Apex Court in Ex. Capt. Harish Uppal Vs. Union of India and Another. In this case, the right of advocates to carry out a strike was under question before the Supreme Court. The Supreme Court had observed that the rules framed by High Courts will have nothing to do with the disciplinary jurisdiction of Bar Councils. An advocate in discharge of his professional duty may even file Vakalat on behalf of his client except for appearing before any Court.
In the judgment in R. K. Anand’s case, the Supreme Court has made an observation that to preserve the purity of judicial proceedings, the High Court would be free to exercise its power under Sec 34 of the Advocates Act to frame rules. Further, the High Courts that have not framed the rules so far are directed by the Supreme Court to frame such rules without any further delay. But the guideline/procedures to be followed by the High Courts in framing such rules have not been prescribed the Supreme Court, which leaves much to be decided.
Rapport between the Bar and The Bench
There is absence of any formal procedure for the High Courts to frame rules. So it would be appropriate to introduce such rules only after the bar members and the committee of High Court arrive at a consensus ad idem. Then either side can contemplate which rules should be framed to regulate the conduct of advocates. Though, without an iota of doubt the High Court can frame rules on its own. But involving the bar members might serve to meet an amicable solution in the absence of providing fair opportunity to advocates.
The lack of joint deliberations is cited as the reason for boycott and agitations by advocates against the disciplinary rules. The High Court wants to remit the matter back to a Full Bench Committee for reconsideration. But the advocate associations have expressed their reluctance as the Full Bench comprises of Judges who had been part of the original committee that had framed the impugned rules in the first place.
There was a total lock down at the Madras High Court earlier this week when hundreds of thousands of advocates laid a siege outside the gates of High Court, which has made heads turn and raise eye brows. 126 advocates were suspended abruptly by the Bar Council of India, adding fuel to the fire.
Without any doubt, there will be more instances of advocates failing to uphold professional ethics. On one hand there is procrastination on the side of Judiciary to keep the rules in abeyance and to reconsider the implementation of rules. On the other, a large number of litigants are left in dire straits without advocates, who have been boycotting for more than 50 days. This has completely paralyzed the system and also the livelihood of a large number of advocates has been adversely affected.
The plight of the public has to be taken into account at this juncture. Since there is an imminent danger of a wide range of disputes being settled through Kangaroo Courts. To arrive at a workable solution, both the bar members and the bench have to meet to resolve the present situation. We need to get back to normalcy at the earliest, saving litigants from being victimized from the deadlock like situation. To quote the words of Abraham Lincoln, “A house divided against itself cannot stand." Unity is an indispensible requirement for the efficient functioning of any institution serving the public. Both the bar and the bench need to upkeep consensus and harmony rather than locking horns.