Madras HC's new rules for lawyers' conduct signal no confidence in TN & Puducherry Bar Council

A battle is brewing in the Madras High Court. Relations between the Bar and the Bench have taken a steady turn for the worse, especially in light of the repeated disruptions and instances of indiscipline by lawyers that judges presiding over the courts have been subjected to. Matters have now come to a head as the Madras High Court has promulgated amendments to Rules framed under Section 34 of the Advocates Act, 1961 giving itself (or the Principal District Judge) the power to debar advocates from appearing before the High Court. Some of the new grounds on the basis of which an advocate may be debarred are quite illuminative of the kinds of indiscipline that judges of the High Court have possibly faced. Those who maybe debarred include: “An Advocate who is found to have tampered with the Court record or Court order;” “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 Court “An Advocate who actively participates in a procession inside the Court campus and/or involves in gherao inside the Court Hall or holds placard inside the Court Hall;” Before the reader concludes that these are peculiar to the Madras High Court or some other lower court, I can attest that I have witnessed this kind of misbehaviour myself in the halls of no less than the Supreme Court. In the one instance that such misbehaviour was brought to the notice of the Court (tampering of the Court order), it turned a blind eye and let off the advocate in question with just a warning. The Bar has of course protested. The Madras High Court Advocates Association has issued a statement that calls upon the Chief Justice to withdraw the Rules or else face rallies and agitations against it. A smaller minority of lawyers have welcomed the move pointing out that it is only in furtherance of the Supreme Court’s directions in Capt Harish Uppal and RK Anand cases, though they have expressed misgivings about some of the drafting in question. Do the advocates protest too much? Legal basis for the Rules Section 34 of the Advocates Act gives High Courts the power to frame Rules to determine who can practice before it and the lower courts under that High Court. In parallel, the power to lay down professional standards for practice and enforce such standards has been vested with the Bar Councils under Section 35 of the Advocates Act. On a first reading, it would seem that the Madras High Court’s rules have tried to take over the Bar Council’s power to discipline lawyers. [caption id=“attachment_2750398” align=“alignleft” width=“380”]  A file photo of madras High Court. Image credit: Wiki commons[/caption] This very argument was raised at the Supreme Court in an earlier tussle between the Kerala High Court and the Bar Council of India. The Kerala High Court had framed Rule 11 which prevented advocates who had been held in contempt of court from practising before it or lower courts in Kerala until the contempt was “purged”. This was irrespective of whether such advocate had been disbarred by the Bar Council. A three judge bench of the Supreme Court upheld the Kerala High Court’s Rule in its judgment in Bar Council of India v State of Kerala. The Court clarified that in debarring an advocate from appearing before the Court, the High Court was not trying to discipline the advocate but upholding the dignity of the court. It relied on an earlier decision which had pointed out that misbehaviour by an advocate can be both professional misconduct and contempt of court, and consequences for one (from the Court) need not necessarily prevent consequences for the other (from the Bar Council). While they don’t prescribe the content of the Rules, the directions of the Supreme Court in the Harish Uppal and RK Anand cases are clear in re-affirming the power of the court to discipline advocates in order that proceedings in court may be carried out and that the dignity of the court is maintained. All the kinds of behaviour which can get an advocate disbarred under the amended Madras High Court Rules relate directly to a lawyer’s behaviour in court or with judges, and don’t deal with say, lawyer-client relationships. The Madras High Court rules are thus entirely within the Court’s remit to manage court proceedings and don’t really impinge on the Bar Council’s power to discipline a lawyer for misconduct. Failure of the Bar Council Whatever be the legality of the Rules in question, the fact that the Madras High Court had to promulgate the same is a resounding vote of no-confidence in the capability of the Bar Council of Tamil Nadu & Pondicherry to rein in misbehaviour by lawyers. Lawyers have long argued that self-regulation (statutorily codified and enforced under the Advocates Act) is the best form of regulation for lawyers, like other professionals. The powers vested in the State Bar Councils and the Bar Council of India to frame standards for professional conduct and punish advocates who engage in professional misconduct has, relative to the problem at hand, been little used. The reason for this is structural – the members of the Bar Council are elected by lawyers themselves and have little incentive to go after instances of indiscipline when it affects their chances of re-election. This is especially true for those lawyers who have the backing of the local Bar Association (a private body of lawyers as opposed to the Bar Council which is a statutory body) which is usually more influential among lawyers. This also explains the proliferation of lawyer strikes and boycotts, and also the ugly violence in the Patiala House Court (under the very noses of Supreme Court observers) when Kanhaiya Kumar was produced. The Bar Councils have themselves been embroiled in controversies. Whether it is corruption in the approval for law colleges or the manner in which the All India Bar Exam has been conducted, the conduct of the Bar Council has been less than entirely above board, if not criminal. It is perhaps no surprise that a body with such little credibility can barely enforce standards of professional conduct for the lawyers it is supposed to discipline. The amended Rules of the Madras High Court are likely to be challenged shortly though the chances of success are dim. That will not however, put an end to the troubles. The real task before the Madras High Court will lie in enforcing the rules it has framed. The advocates it seeks to debar are not going to go quietly. As the resolutions passed by the Madras High Court Advocates Association suggest, they might even enjoy support for their antics – if not openly, then perhaps tacitly. Make no mistake though, this is not the situation in the Chennai or the Tamil Nadu Bar alone. Across the country, save for a thin crust at the top, the practice of law is in a deplorable state and enjoys little by way of respect or remuneration. If the best and the brightest who graduate from the top law schools and colleges are no longer choosing to practice in courts, it is because they are being driven away from it by what they see with their own eyes. The coming confrontation between the Bench and the Bar over the Madras High Court Rules may therefore be well worth it. The author is a resident fellow at Vidhi Centre for Legal Policy. Views are personal.