Agitating lawyers must believe in rule of law

In the 154 year history of the Madras high court the siege laid by the lawyers is unprecedented. The very institution which they use for their existence was paralysed and even the willing lawyers were unable to make an entry.

While the statutory Bar Council had warned them of serious consequences and all the recognised leaders of the elected bar associations have dissociated themselves and when a set of senior lawyers have appealed to them to withdraw their action pending consideration of the rules by a larger committee of judges went unheeded and the lawyers, led by self-styled joint action committee, went ahead with their protest.

The immediate sequence of events leading to the lawyers laying a siege and continuing their protest may be recounted. The Chief Justice of the Madras high court, Sanjay Kishen Kaul has made more than one attempt to make the lawyers to come to the negotiating table.  He constituted a committee of five Judges to review the rules framed by the high court under Section 34 of the Advocates Act, 1961. He also assured that the rules will not be invoked provided the lawyers get back to work. The agitating lawyers never had any charted programme of their actions and the demands made by different groups kept changing.  Without any proper leadership and egged on by groups in the social media, there were demands ranging from unconditional withdrawal of the rules and the sacking of the Chief Justice of the Madras high court to the suspension of the rules pending consideration by the larger bench.

Ditched by the elected leadership who preferred negotiations rather than direct action, the newly formed joint action committee even made a dash to New Delhi to meet the Chief Justice of India.

Apparently the CJI listened to them patiently but did not give any promise.  The Delhi mission having failed, the returning leaders once again gave a call for intensified agitation for an unconditional withdrawal of the rules. Added to their disappointment, the Bar Council of India had suspended over 100 erring leaders for their indiscipline of continuing an illegal court boycott.

The primary grievance expressed by the rural lawyers is that for the first time the rules empower the district judges to take action against lawyers who violate the rules.

According to them, this will lead to putting down the voices of protest by the autocratic behaviour of those judges who according to them are not suitable to be empowered with such rules.  

The previous position was that a district judge or for that matter any subordinate judge will have to grin and watch whatever the misbehaviour committed before them by a lawyer.  If they want any contempt action, they will have to send a report to the high court, which will initiate contempt under Section 10 of the Contempts of Court Act.  

This power is not aimed against erring lawyers but also against general public who commit contempt in the face of the subordinate courts. As of now the judges of the lower courts hardly have any power to deal with a lawyer who persistently commits misconduct right in front of the court.  Perhaps, the judges may write to the Bar Council and wait for action to be initiated by them.  

Many a time even the Supreme Court has noticed that the Bar Councils, which are empowered to initiate disciplinary action against lawyers who misbehave in courts, do not act even though the disciplinary rules framed by the Bar Council of India enables them to do so. In the last 55 years of the existence of the Bar Council there were very few lawyers who were punished for such misconduct.
It is mainly because the elected leaders of the Bar Council are obliged to their electorate and always there is a soft approach to such misbehaviour.  It is also surprising that the present agitators who question the power being given to Dist. Judges for initiating action (especially when they are senior judges with number of years of experience and training both in the Bar and the Bench) but prefer to face the disciplinary committees of the Bar Councils which has members who hardly have any such judicial experience.

There is also broadly a consensus among the lawyers that some of the rules framed by the high court are likely to be misused thereby making the profession slavish and servile.

According to them, if the judiciary is allowed to take action against any person who “browbeats” the court, such a term is vague and may be used against a lawyer who champions the cause of his client without fear. They also object to the rule, which is likely to punish a lawyer who takes money from a client in order to pay the judge for getting the order.  

They also contend that far from eliminating the corrupt members of the judiciary it will unduly arm them with unjustified powers to muzzle the voices of dissent.  It is one of their arguments that the unbridled and unguided powers will lead to arbitrary actions in the absence of appeal to higher forums.

It is surprising to note that the majority of the lawyers are not looking into the legal precedence.  A constitution bench of the Supreme Court had ruled in Meenakshi Mills Case (1992) that in the absence of a provision for appeal or revision is not of much consequence, especially when it is open to an aggrieved party to invoke the jurisdiction of the High Court under Article 226 of the Constitution.

As regards to complaints of corruption by judicial officers, the Supreme Court had ruled in C. Ravichandran Iyer’s case (1995) that the only way to ask for action against a corrupt judge  is to send a petition to the CJI or CJ of that High Court who will constitute an in-house procedure and take appropriate remedial measures.  Therefore, there is no need to make statements or write open petitions to expose a Judge. Even assuming that in a particular case an illegal order is passed, it can be challenged in a 3-tier appellate forums and the order of the district judge is not final.

On the question whether the High Court has power to remove a member of the Bar from the rolls of the Bar Council, it must be said that whether the member’s licence is revoked or not, he can be stopped from practising before a judge or before a court.  

That power solely vests in the court only. In essence, no member of the Bar is entitled to commit misconduct in the face of the court and then escape without any punishment.  In any event, since the rules framed and notified by the high court have not become final and are receiving consideration by a Committee of five judges and even thereafter there is a scope for legal challenge, the present attempt to paralyse the courts for over two months is clearly illegal and contrary to any legal norms and judgments and directions issued by the court from time to time.

The need of the hour of the members of the Bar is to cooperate in eliminating the mounting arrears of cases and clearing the distress of the litigants rather than cutting the nose to spite the face. If lawyers who live by the litigation and courts are to disbelieve the power of the courts in dispensing justice, that is the day when courts will become irrelevant and redundant.

(The writer is a retired judge, Madras high court)