About delayed justice, judicial nepotism and lawyers’ rights

India’s lawyers and the Ministry of Law and Justice are at loggerheads over the proposed amendments to Advocates Act 1961 by the chairman of the Bar Council of India (BCI) to the Law Commission of India (LCI). The LCI had sought suggestions from BCI on advice from the Supreme Court of India. The lawyer community and all bar councils are of the view that the BCI chairman has proposed “sweeping, arbitrary and outright illegal” amendments which, if brought in force, will curtail democratic rights of lawyers. Advocates all over the country believe that this amendment is an unjust crackdown against their fundamental rights and functionalities as officers of the court. They strongly believe that under the garb of addressing the disease of enormity of pending cases in Indian courts, the Law ministry, LCI and BCI chairman have formed an illicit nexus for personal ulterior motives to suppress lawyers, i.e. the foundation of the third pillar of democracy and the only fearless body to fight for truth, justice and the rights of the citizens in a corruption-ridden country like ours.

While Thursday, 23rd March witnessed a strike and a massive demonstration by Delhi-NCR advocates called on by the co-ordination committee of All District Court Bar Association of Delhi at the BCI office, the second major country-wide strike is being organised on 31st March, 2017. Lawyers at District and High Courts will completely abstain from appearances in the court or any kind of work and senior advocates from the Supreme Court of India will show support by wearing white arm-bands. Taking into account predictions of the State and District Bar representatives, the agitation will only intensify against this proposed draconian law, if an immediate solution is not arrived at.

In view of huge demonstration and a scathing attack on his integrity, the BCI chairman, Manan Kumar Mishra, on 23rd March, recalled his suggestions to the Law Commission and showing solidarity to the cause of lawyers promised that BCI and all the Bar Councils are together in this fight. According to newspaper reports, Mishra has called for a meeting of representatives of State High courts and District Bar Councils to decide the future course of action. He has been quoted saying that, he will personally meet the Prime Minister, central cabinet Law Minister and Finance Minister to request cancellation of this proposition by the Law commission.

Despite being the core representing body of lawyer fraternity, BCI formulated and forwarded the proposal to the Law Commission without consultation with any Bar Council representatives or Coordination Committees, which formed the reason of the strike on the 23rd. When BCI chairman swore to recall his proposal, the LCI had already made its decision and the proposal had landed at the Ministry of Law and Justice for further preparation of a bill. This makes any recalling by BCI chairman redundant and agitating lawyers were not informed about this progress. This shows that suggested meeting with the Prime Minister, Central Law and Finance Minister are a mere sham to save his own skin. Co-ordination committee of all Delhi Bar Council claimed that this action indicates a vicious play between BCI and the Central Government and accused Mr. Mishra of grinding his own axe against the interest of lawyers.

Recommendations by the BCI chairman are based on the idea that high frequency of strikes by advocates are a prime reason for pendency of cases in Indian courts because it leads to stalling of crucial legal procedures. The proposal by BCI chairman suggests ban on strikes by lawyers and that participants would be booked and punished for misconduct.

Advocates of northern Uttar Pradesh have been demanding and organising strikes for establishment of a separate High Court bench in the area for physical, monetary and mental ease of litigants. While there is a bench in Lucknow which is only about 200 kms from Allahabad High Court, parties from the northern region have to travel about 700 kms to Allahabad for case hearings. It also becomes very tough for the litigating parties to whet and engage a lawyer from the unknown side of the state. While district courts have been bifurcated in Delhi having a much smaller radius, the biggest state of India has only one extra bench. Since the ministry of law is committed to providing justice at the doorstep, why the a step motherly attitude is being shown towards UP.

Peaceful protest is a fundamental right of lawyers as a social workers. Lawyer fraternity uses it as a tool to highlight the inefficiency of the judicial delivery system. It requires some serious deliberation before this right is taken away.

The proposal also suggests that any advocate found involved in ‘contempt of the court’ will be punished severely. The action against such a lawyer will be taken directly by the judge and can range from a fine to temporary or permanent suspension of license. ”Contempt” as a word had wide interpretations hence prone to be misused by judges. This clause will render the lawyer completely helpless with his right to fearlessly debate his stand while under scanner at all times. This move will make bar and consequently advocates a subordinate body to the bench, while they should work as a team to achieve justice.

The misconduct clause suggestions include that if an advocate is found guilty of bad performance in a complaint filed by a litigant party, then the advocate has to pay back the fees and give a compensation of upto 5 lakh rupees to his client. If he fails to do so his license could be suspended temporarily or permanently. This would lead to a situation where any losing party could sue the lawyer and demand compensation because any case will surely be decided against one of the parties. This doesn’t make much sense, does it? Also the recommended lawyer fee is much lesser than the compensation suggested in this amendment.

Misconduct means intentional negligence of interest of the party one is representing and not a mere misjudgment of a crucial deciding issue in a case. Why would any sensible advocate would want to support such a clause.

According to the suggested amendments, if a lawyer declines to work on the case and appear in the court if he hasn’t been paid by the client, he will be booked under misconduct. If an advocate fails to appear for any other personal reason, it would come under the preview of misconduct. This means that once a lawyer has been signed for a case by a client he has to keep working, even in the wake of any unprofessional attitude by the client.

This clause could actually make life tougher for litigants because the lawyers would prefer to charge the entire fee in one go before beginning to work on the case, while right now most of the lawyers and clients base their monetary dealings on installments method.

There are numerous cases of misconducting judges like accepting favours or bribes to deliver orders in favour or against a party, which hints towards wide-spread corruption amongst judiciary. Judges, as noted by numerous people and advocates, to take many leaves and retire early from their benches. The number of actions taken against misconducting lawyers by Bar councils are much higher than action taken against a judge. Lawyer bodies demand that if stringent methods are being adopted against misconducting lawyers then the same should be applicable to the bench too, including intervention by lawyer bodies, time bound trials and permanent cancellation of position.

Disciplinary Committees of the Bar Councils make a very important part in trials regarding misconducting lawyers. One of the amendments proposed to the act is about appointments of representatives of these Disciplinary Committees. Every Bar Council Disciplinary Committee should comprise of three members. One of them should be either a retired High Court or District Court judge in the position of the chairperson, one should be a senior advocated appointed by council members and one should be a Bar Council member nominated by council members.

All the disciplinary committees to tackle misconducting judges comprise only of judges while advocates are being forced to accept this blatant intervention by the bench in the matters of the bar. This will only support further subordination of lawyers to the judges and lead to more unnecessary tussles between lawyers and judges leading adding to the plight of the general masses involved in the case.

The proposal also says that bar councils should also include representatives from bodies other than legal community, such as Medical Council of India, Association of Chartered Accountants, Chambers of Commerce and other such national associations. The repulsion to this clause is stated in the very words of the clause. If any association has nothing to do with legal matters then how can it be party to such crucial decisions of the bar councils.

A recent judgment by the apex court contemporary to these proposed amendments raises a lot more questions than it answers. In a Supreme Court judgment on 27th March rejected government’s veto power to appoint judges. SC asked for elucidation of of such a plea and asked the government to submit reasons in writing. If judges shouldn’t be controlled by the government then why should such laws be forced down throats of advocates.

Lawyers are the only individuals that fight for welfare of masses through Public Interest Litigations and Writ Petitions. And in lot of these cases government bodies and sometimes judiciary and the other non-legal associations are a party. Do you think that the recent celebrated judgement, a result of PIL by an individual fight of lawyer, to reduce the cost of cardiac stents would’ve come into force if Medical Council of India comprising of doctors and researchers from private hospitals were part of the judicial process? Filing and fighting for PIL’s will become next to impossible if these suggested amendments are brought into force.

Yes, misconduct should be dealt with stringently but it should be applied throughout all the levels of government and legal bodies. This proposal showcases lawyers as the only reason for ever-increasing pending cases in the courts of India, whereas in reality the corruption, mismanagement and nepotism within the judiciary is the main reason for hurdles in the system of judicial delivery. Weeding out fake lawyers and expediting the procedures in the pending cases is rather in interest of the lawyers. However, if done at the cost of freedom of lawyers, it will only weaken the whole legal system of the country.

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