Cover Story

Penalizing Delinquent Advocates

Whether the prevailing mechanism so as to take errant and rowdy ‘Men in Black’ to task has hitherto failed to act as a deterrent ? Are Bar Councils entrusted with such task truly discharging their role in letter and spirit?  Has the time really come for suitably over-hauling the statute governing legal profession so as to preserve its so-termed ‘noble character’?  Although there may be varying opinions within our legal and judicial fraternity over the same but there is no denying the fact that a thorough appraisal of over half a century old Advocates Act, 1961 is indeed the need of the hour.

On July 5, 2016 a Three-Judge Bench of the Supreme Court comprising Justices AR Dave, Kurian Joseph and AK Goel in Mahipal Singh Rana v. State of Uttar Pradesh,   while upholding the conviction of a delinquent advocate from Uttar Pradesh requested the Law Commission of India  (LCI) to go into all relevant aspects relating to regulation of legal profession in consultation with all concerned. Hoping that the Government of India would take appropriate steps post submission of such report, it even directed that an affidavit be filed by the Government in this regard after a year.

Just  over a fortnight thereafter, the LCI  on July  22 issued a Press Note signalling  that it has undertaken the study while requesting the Bar Council of India (BCI) and all State Bar Councils (SBCs), Bar Associations as well as AoR Association of the Supreme Court  and similar Associations  in all the High Courts and their respective Benches so as to send their comments in this regard within a month which would be scrutinized by the Commission before it adopts further course of action.

Pertinent to mention that in the above cited Mahipal Singh Rana’s case, the Apex Court also laid down a new proposition of law with respect to Section 24A(1) of the Advocates Act, 1961 which hitherto only dealt with the stage of pre-enrolment  by providing that the disqualification for enrolment as an advocate shall cease to have effect after a period of two years has elapsed since such potential person’s release or dismissal, or as the case may be, removal.

The Supreme Court questioned why such bar as applicable at the entry level is wiped out after the enrolment.  Having regard to the object of the provision, the Court ruled that the said bar certainly operates post-enrolment also. Hence it has been now laid down that the ibid Secton 24A which debars a convicted person from being enrolled also applies to an advocate on the rolls of the Bar Council for a period of two years, if convicted for contempt. By ruling so, the Court suspended the enrolment of Mahipal Singh Rana for two years from the date of its order.

Here it also merits due reference that in the aforesaid judgment the Supreme Court apart from deprecating the failure of the statutory obligation of the Bar Council of Uttar Pradesh as well as the BCI which prompted the Court to assume appellate jurisdiction under the Advocates Act warranting disciplinary action for proved misconduct  also expressed serious concern that even the Gujarat High Court’s over more than two-decades old verdict exhorting all concerned has fallen on deaf years.

Just close on the heels of these developments, in July this year, the BCI also took an unprecedented action by suspending 126 advocates from Tamil Nadu for their aggravating protest against the new disciplinary rules as framed by the Madras High Court  in May 2016. On July 25, the agitating lawyers also laid siege to the High Court premises notwithstanding stern warning by the Madras High Court as well as the BCI in this regard.

The BCI Chairman, Manan Kumar Mishra while justifying the action also hinted at the hidden agenda behind the same as to scuttle the BCI’s Certificate and Place of Practice (Verification) Rules, 2015 which are being strictly enforced so as to weed out fake and non-serious advocates from the Bar. (See Box)

The warring advocates have been so vociferous in their demand regarding complete withdrawal of such Rules that they could not be mollified by the action of the Chief Justice of the High Court in constituting a Five-Judge Committee to look into the issue while also assuring the protesting lawyers that until the deliberations are concluded by the Commission, no action would be initiated under the new Rules. In fact, by a judicial order dated 26th July, the Chief Justice ordered such Rules to be kept in abeyance for the time being.

The   Full Court of the Madras High Court has since asserted that the recent Amendment to the Rules has been done in pursuance of the directions of the Supreme Court in RK Anand  v. Registrar, Delhi High Court (2009) which are to the effect  that there is no conflict between the disciplinary jurisdiction of the Bar Council and the Rules framed under Section 34(1) of the Advocates Act as the Court does not suspend the licence of the advocate but would rather be concerned with the dignity and orderly functioning of the Court.

The Madras High Court also affirmed that the extant Rules thus framed are only  in reference to the acts of omission and commission in the Court and within its precincts and that this Section can be invoked by the High Court even without framing of the Rules. It was also revealed that a Writ Petition came to be filed before the Court in 2011 seeking to formulate such Rules in compliance with the 2009 decision of the Apex Court.

Of course in the Supreme Court Bar Association (SCBA) v. Union of India (April 1998), the Apex Court ruled that the power available to a High Court or Supreme Court for inflicting punishment on account of criminal contempt cannot be stretched to such an extent as to usurp the statutory powers of the Bar Councils which have been delegated the power under the Advocates Act, 1961 to cancel or suspend an advocate’s license. One may also argue that even while the courts exercise contempt jurisdiction, the punishment can only be awarded as explicitly provided under Section 12 of the Contempt of Courts Act, 1971.

But one must keep in mind that while pronouncing the RK Anand’s judgment in July 2009, the Supreme Court had taken the ibid 1998 ruling into consideration as well as it also referred another verdict in Ex-Capt Harish Uppal v. Union of India (December 2002) which held that the right to appearance in courts is within the court’s control. It had then also ruled that Section 30 of the Advocates Act has not been enforced till date although the same had been brought into force five years back in June 2011.

Though it sounds logical that the Supreme Court/High Courts while exercising contempt jurisdiction need to stick to the Contempt of Court law and it shall not be open for them to devise any new kind of punishment even in the exercise of their constitutional powers under Article(s) 129 and 215 of the Constitution, it sounds convincing that the exercise of the contempt power is an inherent power available to a court and as such it cannot be confined or clipped down due to the enactment of a statute by the Parliament.

The aforesaid proposition of law surely needs a more detailed adjudication preferably by a larger than 5-Judge Constitution Bench of the Supreme Court as the two (SCBA and Harish Uppal) judgments tend to take differing views regarding the courts’ power to debar advocates from appearing before them for a specified period.

According to Section 34 of the Advocates Act, a High Court can make rules laying down the conditions subject to which an advocate shall be permitted to practice in the High Court and the subordinate courts but the fact is that many High Courts have not framed such rules. This has resulted in confusion over the legitimacy of punishing errant advocates.

Here the author of the cover story also wants to recall that more than a decade back in July 2004, the Madras High Court had then enacted a 25-point code of conduct for advocates in pursuance of Section 34, Advocates Act, which inter alia empowered the Court to prevent an erring advocate from entering the court premises for one year. But this evoked protests by the legal fraternity and ultimately, the code was repealed.

The moot point is that even if an aggrieved court refers a case of advocate’s misconduct to the concerned Bar Council for adjudication, what would happen if such Council does not conduct the same in time or else rules in favour of the erring advocate and thus does not inflict any punishment on him? In such a scenario, if the BCI abdicates its responsibility, the Supreme Court and the High Courts will have to step in by nailing the delinquent and unscrupulous elements from the Bar.

The Advocates Act, 1961 or the Bar Council Rules ought to be suitably amended to provide that if an advocate is debarred from practising for a certain period for criminal contempt, it would be deemed to be an action inflicted by the Bar Council which would not be normally interfered with.

There is no second opinion that a constructive dialogue and deliberations between the Bench and the Bar is a pre-requisite for framing disciplinary rules on the lawyers’ misconduct. The Bar Councils are often reluctant to take drastic action against advocates.

One would recall that when the National Consumer Disputes Redressal Commission in 2007 ruled that advocates should come within the Consumer Protection Act’s purview on account of “deficiency in service” to their clients, the Bar Councils and the aggrieved advocates moved before the Supreme Court by pleading that no consumer panel can be moved in case of any complaint against an erring advocate and the Bar Council alone could take stock of the matter. The Apex Court still continues to be seized of this vexed issue (Bar of Indian Lawyers v. DK Gandhi).

Then comes the question of immediate framing  coupled with strict enforcement  of the ‘Code of Ethics’  for the legal fraternity as mooted by the BCI  more than five years back in March 2011.  The Code also ought to be revised periodically as per contemporary needs and requirements. A stringent mechanism for ensuring strict compliance with the aforesaid Code needs to be put in place by the Bar Panels with the constitution of specialized Vigilance Wings so as to keep a check on the activities of corrupt and notorious advocates in the Bar.

A proposal is also mulled for inclusion of retired members from the higher judiciary as well as other distinguished members from the civil society in composition of Bar Councils, which in addition to the in role of regulator and watchdog over legal profession, also discharge the functions of quasi-judicial bodies deciding complaints of (gross) misconduct against erring and rapacious members of the legal fraternity.

The Bar Councils need to overhaul and expedite their decision making process to take instantaneous action in such incidents which lower the dignity and integrity of the Bar. The verdicts ought to be publicized widely so as to serve as deterrent to others. The noble profession of an advocate should not be allowed to be eroded further owing to the acts of omission and commission by a breed of vested interest advocates.

Also of late and particularly in recent time, instances have become quite common when Bar Associations across any State or district resort to agitations, boycotting of courts, suspension of work after getting involved in stiff confrontation with members of the judiciary or men in khaki, media-persons or allied trivial matters.

The recent news reports from the states of Kerala, Telangana and even in the National Capital of Delhi substantiate this fact.  The ultimate sufferers are the hapless litigants. Although the Supreme Court has in Harish Uppal’s case (2002) ruled that advocates have no right to go on strike but despite this the Apex Court directions are violated with impunity.

The Supreme Court directives in the ibid judgment for constitution of district/state/national level redressal committees comprising members from both the Bar and the Bench to sort out possible disputes/conflicts whenever they arise are either yet to see the light of the day or else wherever constituted, have proved to be ineffective. This aspect warrants immediate attention by both the Bar and the Bench.

The BCI on its own ought to introspect that as the ‘Millennium Pledge’ as envisaged by itself endeavours to strive for maintenance of highest standards of professional ethics, advancement of legal profession and service to humanity, it is high time for initiating reforms in the legal profession and it would not be possible without the active and whole-hearted support of the Indian Bar.

Finally, it can be concluded that with the Law Commission of India being already seized of the issue regarding appraisal /revisiting the regulation of legal profession in pursuance of exhortation of the Apex Court, it is highly expected that the needful would be done at the earliest. That apart, even the incumbent ‘Modi Sarkar’, provided it wisely desires so, can mull over the idea to constitute an All-India Bar Committee on the lines of one constituted in the early 1950s prior to the enactment of the Advocates Act.

Last but not the least,  with the Union Law Ministry recently witnessing a comeback of Ravi Shankar Prasad at its helm of affairs, one highly hopes that at least the long-overdue and much-awaited reforms in, if not complete overhauling of, our legal profession would be just on the anvil.

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