New Madras High Court rules framing the conduct of lawyers can have chilling consequences for the independence of the legal profession
As though the unprecedented heatwave was not searing enough, the Madras High Court has set the advocate community afire with crucial changes to Section 34 of the Advocates Act introducing new conduct rules and punishments. The High Court has arrogated to itself powers of the Bar Council penalising lawyers for attempting to ‘browbeat’ judges or giving complaints to superiors about judges, leading to lifelong debarment from legal practice. As an interim measure courts can debar lawyers even before an inquiry.
Missing the context
The High Court clarified that the rules framed are in compliance with the Supreme Court directions in the R.K. Anand case (2009) to “maintain the dignity and the orderly functioning” of the courts. In that case known as the BMW hit-and-run case, the prosecutor and defence counsels were caught on camera colluding to influence a key witness; illustrations were cited by the court where advocates were said to have taken money in the name of judges, fabricated records and made it a practice to browbeat and abuse judges and on that basis tried to get a case transferred from an inconvenient judge; the court noted an increase in instances of advocates sending unfounded and unsubstantiated allegation petitions against a judge to superiors.
In this context the Supreme Court held that in situations where actions posed an immediate and imminent threat to the purity of court proceedings, the courts were not helpless and could debar a lawyer from appearing before it in order to protect itself.
The Madras High Court has taken the cue from the examples. 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.
However, what is missing is the context of causing an “immediate and imminent threat to the purity of proceedings” which was the basis of the directions in the R.K. Anand case. Dehors the context, these rules can have very alarming consequences for the independence of the legal profession.
For instance, let’s take the first misconduct of a lawyer accepting money in the name of the judge. Many practising lawyers will vouch that most often, it is the client who is better informed about the ways of reaching or fixing judges! It is not uncommon to hear middlemen (mind you, not lawyers) who boast “tell me the judge, I will get you the order”. Thus the misconduct does not address the real issue of the deeper malaise of entrenched corruption in the judiciary. At any rate, clients who bribe a judge are partners in crime and deserve no protection. Their words can have no credibility. Ultimately this will only serve to harass or intimidate lawyers by a disgruntled client.
The second misconduct of “browbeating” is tailor-made to silence lawyers. Lawyers will no longer feel safe to speak up in court lest the judge feels he is being browbeaten. Further, this misconduct may not affect all lawyers equally. A judge may be more accommodative of a high-paid, English-speaking, glib-talking senior lawyer than of an ill-paid, mofussil lawyer, who lacks the language, style, sophistication or so-called decorum but who nevertheless may have a worthy cause to plead.
The third misconduct of sending or spreading unsubstantiated complaints against judges to a superior officer appears to be more a clause to protect the judges rather than discipline lawyers. If a lawyer forwards a WhatsApp message about alleged corruption by a judicial officer to a senior judge he can be debarred! Moreover, this runs against all established tenets of duty of lawyers to bring to the notice of superior courts and the public of this country anything unsavoury about a judicial officer or the judiciary as a whole.
Going against existing rules
The new provisions go against the ‘Standards of Professional Conduct and Etiquette’ provided in the Rules under Section 49(1)(c) of the Advocates Act which stipulates that: “An advocate… shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities”. In effect, not reporting is a misconduct! It is the lawyers alone who are privy to the happenings and intrigues within the courts and silencing them would effectively pre-empt all public debate, dialogue and attempts at correcting the justice system.
Moreover, this clause goes against the law laid down in C. Ravichandran Iyer case, [1995 (5) SCC 457] where the Supreme Court took note of the ineffectiveness of the impeachment process and formulated an alternative in-house mechanism where complaints could be given to the high court or Supreme Court and matters could be investigated discreetly. They did not discourage complaints being given as the present amendments do, under the threat of debarment. It is true that a false complaint may affect 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 foisted.
These draconian rules also fly in the face of the United Nations ‘Basic Principles on the Role of Lawyers’ which stipulate certain minimum “guarantees for the functioning of lawyers”. They also provide that lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.
Today, there is a crisis of credibility of both Bar and Bench. Recent months have also witnessed a growing and deepening distrust of judges by lawyers and a vehement resolve of the judges to ‘show the advocates their place’. This restiveness is on account of falling standards, failing ethics, and growing corruption — both amongst lawyers as also the judiciary. There is a lot that is to be done to bring reforms within the legal profession itself. But this requires a more holistic and imaginative approach. Emasculating the legal profession alone, in the name of regulating courts, will not just cripple lawyers but affect the democratic fabric of our country.
N.G.R. Prasad, D. Nagasaila and V. Suresh are advocates practising at the Madras High Court.
Source: The Hindu