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We explain why the Madras bar is up in arms again and what's at stake

Dark times at Madras HC
Dark times at Madras HC

Five Madras high court judges met yesterday after the high court’s chief justice Sanjay Kishan Kaul called for the next course of action on the controversial disciplinary rules framed by the high court which have caused the state bar to abstain from courts in protest.

The committee decided that amended draft rules framed by the five judge committee will be circulated for views of the bar.

What rules?

On 25 May, rules made by a three-judge committee comprising of Madras high court justices S Nagamuthu, PN Prakash and MM Sundresh, to regulate advocates practicing before the Madras high court, were notified.

Among those rules was one which gave judges of the court the power to pass an order debarring an advocate from practice if found guilty of misconduct.

Misconduct under the new rules was defined to apply in cases such the following, according to The Hindu:

(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 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.

How did the rules come to exist?

BCI member from Tamil Nadu, S Prabhakaran, explained to Legally India today that the three-judge committee that passed the new rules was formed in 2014 to comply with the directions of the Supreme Court in RK Anand’s case (popularly known as the BMW hit-and-run case).

In that case on 29 July 2009 the Supreme Court directed all high courts to exercise its powers under Section 34 of the Advocates Act 1961 and lay down “conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto” within four months from that day.

This year when the Madras high court judges committee finally came out with its final draft of the rules, it discussed them with members of several bar associations across Tamil Nadu, Prabhakaran said.

After many such discussions the rules were finally ratified by the full court and were notified on 25 May, explained Prabhakaran.

The Madras High Court Advocates Association (MHAA) president Paul Kanagaraj told Legally India that the judges committee did call general body meetings with the bar, before notifying the rules, but such meetings were called without circulating agenda and didn’t result in proper discussions.

What happened next?

As soon as the rules were notified various bar bodies in the state went on protest over the rules’ allegedly “draconian” quality.

Bar associations such as the MHAA and Tamil Nadu and Puducherry bar association, among others, convened a general body meeting on 2 June and decided to submit a memorandum to CJ Kaul asking him to withdraw the rules, Kanagaraj told Legally India.

He said that on receiving the bar’s request the chief justice verbally assured it that the rules would be modified and he expanded the three-judge committee to a committee of five judges to redraft the rules. However, he said that the rules cannot be immediately withdrawn as they have been notified after the protracted process of ratification through a full court meeting, passage by the state legislature, and publication in the state gazette.

Kanagaraj said that following the CJ’s assurance he advised the bar members to avoid abstaining from court until further steps by the new judges committee, but the bar was not convinced of the weight of the CJ’s verbal assurance against rules notified in writing. On 27 June the MHAA vice president Gini Manuel convened a general body meeting in which a state-wide boycott of courts was resolved.

A self-described apolitical lawyer in the Madras HC, whom Legally India spoke to yesterday said that despite that boycott call it is business as usual at the high court. The source said that ever since the Madras HC agreed last year to deploy CISF security personnel on the court premises, advocates who do not wish to join boycott calls are not forced to join them and the general atmosphere of the court is peaceful. The situation was a little different in 2014, as reported then by Legally India.

Prabhakaran also told us today that it is business as usual at the court and those joining the boycotts – “Since boycott was prohibited in [the case of] Harish Uppal they call it ‘abstaining’ [from courts]” – are doing so based on their individual decision. “The situation is now completely out of the hands of bar leaders and it is up to the individual lawyers,” he remarked.

Stricter disciplinary rules sounds good. What’s wrong with them?

Madras high court senior advocate P Wilson told Bar & Bench, that the lack of definition of “abuse” or “browbeating” of judges, and the absence of a standard of proof to mark allegations against judges as “unsubstantiated”, in the new rules is problematic.

He commented: “In any grounds of appeal or revision before the High Court challenging the lower courts order the usual attack on the impugned judgment or order is that that the lower court has not applied its mind or finding of the lower court is perverse etc. Can these grounds be termed as abuse or browbeating a judge?”

“More so, any judge while hearing a case he may be unaware of a settled law or obsessed with a proposition which may not be correct. While arguing a case before such judge a lawyer has to explain to him that the judge views may not be correct. Will it amount to browbeating or abusing a judge?,” he asked.

He added on “unsubstantiated allegations against judges”: “If an advocate wants to make a genuine complaint against the judge, who is going to take it up? What sort of proof is required to show that the complaint is not unfounded? How will the investigation be carried out? The investigation has to be done by the vigilance department. If the department fails to investigate properly should a lawyer suffer? Therefore, unsubstantiated complaint cannot be put against a lawyer to an extent of debarring him from practise. The punishment is also disproportionate.”

Can the high court extend Section 34 to debar advocates?

BCI member from Tamil Nadu S Prabhakaran told Legally India that the high court was not just empowered but obligated to pass the disciplinary rules which it has notified now.

This was because of the RK Anand judgment, and the judgment of the Supreme Court in Ex Capt Harish Uppal, in which the court said that advocates should not call boycott of courts until such boycotts are unavoidable, he said.

In his column in The Hindu he argued that the need for strict disciplinary rules in the Madras high court arose through incidents such as:

“(i) when rallies and processions were taken out inside court halls obstructing the proceedings,

(ii) when courts were boycotted for all and sundry reasons in violation of the law laid down by the Supreme Court in Ex-Capt. Harish Uppal,

(iii) when two instances of murder of very notorious lawyers inside the Egmore court complex took place on the eve of elections to the Bar Associations,

(iv) when a lady litigant who came to the Family Court in Chennai was physically assaulted by a group of lawyers who also coerced the police to register a complaint against the victim,

(v) when a group of lawyers barged into the chamber of a magistrate in Puducherry and wrongfully confined him till he released a lawyer on his own bond in a criminal complaint of sexual assault filed by a lady,

(vi) when a group of lawyers gheraoed a magistrate for not granting bail and one of them spat on his face, leading to strong protests by the Association of Judicial Officers, and

(vii) when very recently, a lady litigant was physically assaulted by a group of lawyers for sitting in the chair intended for lawyers inside the court hall”

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