Uncomfortable Questions A look at the regulation of litigating lawyers in India

More than 10 years ago, the Supreme Court declared that lawyers should not boycott judicial proceedings. The Court relied on a resolution passed by the BCI; a resolution which has, for all practical purposes, been reduced to a blurred memory. Now, a petition before the Karnataka High Court has sought the implementation of this very resolution..More than ten years ago, the Supreme Court of India declared that lawyers should not boycott judicial proceedings. Interestingly the Apex Court relied on a resolution passed by the Bar Council of India in consultation with the State Bar Councils; a resolution which has, for all practical purposes, been reduced to a blurred memory. Now, a petition before the Karnataka High Court has sought the implementation of this very resolution, and in the process raised uncomfortable questions about the Bar and the Bench. .“While being carried to the ambulance, the Hon’ble Judge is heard, appealing not to the police, but to the lawyers, and saying: ‘Don’t throw stones at the police, they are our protectors”.– Justice Srikrishna’s Interim Report on the February 19, 2009 incident at the Madars High Court.THE ARMENIAN CHURCH, located a stones’ throw away from the Madras High Court is a singularly beautiful piece of architecture. Step inside and you can well imagine the city as it was hundreds of years ago, the firangipani trees soothing the eyes. Four years ago, to this very day, however, the lanes near the church were wracked by violence; a casualty of a horrific confrontation in the Madras High Court..ON FEBRUARY 19, 2009 the police station within the premises of the Madras High Court was vandalised and eventually set on fire. In the violence surrounding this incident, lawyers goaded and threatened the police, vehicles were damaged, innocent people were lathi charged and beaten up, and government property was recklessly destroyed. Information collected under the RTI revealed that the State government eventually spent more than Rs. 1 crore on repairing the damage. And yet, it would be because of the injuries he suffered on that very day, that one man would file a petition before the Karnataka High Court, a petition which may just spark a change in the Bar..THE FEBRUARY 19 incident was not a random, spontaneous act of mob violence. The one man Srikrishna Commission, constituted to look into the incident, would report that the incident was preceded by behaviour which may, at best, be described as un-Parliamentary. For example on January 30, 2009 a group of advocates entered the court of the then Acting Chief Justice, disrupted court proceedings, and “..shouted at the advocates sitting there to come out and join them.” The report goes on to describe how a group of lawyers sympathetic to the LTTE cause in Sri Lanka would regularly enter into altercations with the police. In the weeks preceding the incident, tensions between the police and lawyers had slowly built up to the point where some sort of violent clash seemed inevitable. When the police eventually retaliated, behaving “in the same fashion as the unruly mob of lawyers”, all hell broke loose..AS THE INTERIM report observes, victims of the police’s over zealousness included court staff, a canteen boy, and even a sitting judge of the High Court. An eye witness to the incident told me that the police even barged into shops situated near the High Court, beating up store owners who stocked gowns. Suffice to say that in the chaos and violence, there were those who suffered for no fault of their own. And this is where Vishawanath Swami comes in..VISHWANATH SWAMI ISN’T exactly a stranger to the world of litigation, although he started off as a teacher at the Rishi Valley School in Andhra Pradesh. A few years later, he began focusing on rural education and empowerment. While working with different NGOs Swami encountered several “god men” and decided to tackle this menace head on. He founded an NGO called “Forum Against Exploiting Godmen” and it was while investigating one particular “god man” that Swami approached the courts. Soon, the social activist found himself spending more and more time approaching courts in his battle against “godmen”. He filed his first PIL in 2002 and has not looked back since..SPEAKING IN THE canteen of the Karnataka High Court, Swami gives the impression of someone who has an immense amount of patience. He speaks in slow, calm tones; even references to nearly being kidnapped because of his litigation against “god men” are spoken of in the same, measured voice. Despite all his interactions with the Indian legal system (or perhaps because of it?), there is clearly some idealism in his eyes; a belief that change for the better is still possible..ON FEBRUARY 19, Swami was in the Madras High Court pursuing an RTI matter when he was caught in the middle of the clash between the lawyers and the police. He ended up with a broken hand and the determination to see that something is done about this. Swami approached the Supreme Court, and was represented by Senior Advocate Soli Sorabjee. Although notice was issued, the petition was eventually dismissed on May 3, 2010 with the then Chief Justice KG Balakrishnan directing Swami to approach the State Bar Councils for redressal. Swami returned back from Delhi, a dejected man. Two years later, he would get another chance..IN THE SECOND week of January, 2012 a thousand lawyers blocked the streets of Bangalore, protesting the alleged attack of a lawyer by a police constable. For nearly seven hours, traffic was held up in different parts of the city; the former Chairman of the Karnataka Bar Council, Sadashiva Reddy, went on record to say that the lawyers ought to have resolved the problem in a more considerate manner. While the matter was eventually sorted out, there were grumblings that the “media” had projected lawyers in a poor light. The police, for its part, was none too happy with the way things had panned out. On March 2, 2012 the three were involved in a brutal confrontation in the City Civil Court complex..MORE THAN THE violence, it was the subsequent strike issued by the advocates (through the Advocates Association of Bangalore) that pushed Swami towards approaching the Court. “I am simply representing the cause of the common man,” he told me, “where do we go when we seek justice?” But he did not file a petition immediately. Swami first approached Justice (Retd) Krishna Iyer at his home in Ernakulum and obtained a letter from Justice Iyer which requested members of the Bangalore Bar to “give full cooperation” to Swami. The letter was of little help and on March 7, 2012 he gave an ultimatum to the State Bar Council, requesting some action against the erring lawyers. And if not the State Bar Council, then at least the Bar Council of India (BCI) should step in. These requests were ignored, leaving Swami with little choice but to file the petition on March 13, 2012. Eight days later, the Karnataka High Court issued notice. At the time of publication of this piece, the matter remains pending..The beauty of Swami’s petition lies in its simplicity. Reduced of all its legal technicalities, the petition is merely asking the BCI to stick to a resolution it had arrived in September of 2002. What is this resolution? Well, one needs to step back a few decades for that..TO BE FAIR, Swami isn’t the first to ask questions about the regulation of the legal profession. Before the Advocates Act of 1961, lawyers were primarily governed by two enactments, the Legal Practitioners Act of 1879, and the Indian Bar Councils Act, 1926. Under both these laws, it was the respective High Court which could impose disciplinary measures on lawyers..In 1953, the All India Bar Committee (entrusted with examining the need for an All India Bar) recommended the grant of complete autonomy to the Bar. In its report, the Committee observed:.“It is desirable, as the Committee thinks it is, that the national Bar of India should be strong and independent body…….there should be some competent authority deriving its jurisdiction and power from itself and not subservient to any external authority howsoever high and eminent that might be.” (Emphasis supplied).In 1958, three years before the enactment of the Advocates Act, the Law Commission of India submitted its 14th Report. On page 576 of this Report, the Law Commission observes:.“48. We wish to emphasize the principle of autonomy thus sought to be given effect to by the [All India Bar] Committee…It would, therefore, appear that the time has arrived for making these professional bodies autonomous.”.THIS PRINCIPLE OF completely autonomous self regulation, this belief that it is the Bar alone which can and should regulate lawyers is one of the founding principles of the Advocates Act, 1961. Under this Act, it is the State Bar Council which is the disciplinary body in cases of misconduct by any advocate on its roll. The Act also provides a right to appeal from the State Bar Council’s Disciplinary Committee to that of the BCI’s, with a final right of appeal to the Supreme Court..In 1978, the 8th Law Commission of India, chaired by Justice (Retd) HR Khanna, examined a proposal to shift disciplinary powers from the Bar Councils to the High Courts, and to consider whether the judiciary should have a “greater say in the matter of disciplining Advocates”. The Report refers to a letter from the Department of Legal Affairs which stated:.“Suggestions have been made from time to time that…..the Bar Councils are taking too lenient a view and that it would be more appropriate if the jurisdiction of the High Courts is ‘restored’”.THE PROPOSAL WAS expressly rejected, reliance being placed on the legislative “trend” of granting more autonomy in cases of disciplinary proceedings. This principle of self-regulation continued to be a commonly accepted principle even as the number of strikes increased. ..FINALLY IN 2002, while hearing the Capt. Harish Uppal matter, the Supreme Court directed the BCI to examine the causes which “result in lawyers abstaining from work”. On September 28 and 29, 2002 the BCI met representatives of various State Bar Councils and came out with a three-page resolution. This resolution stated, among other things, that a Grievance Redressal would be formed at various levels (taluk, district etc) to allow lawyers to air their opinions and grievances. More importantly though, the Resolution stated that “abstentations” from work would only take place in “exceptional circumstances” and would never last for more than one day. In the Harish Uppal case, the Supreme Court reproduced the entire Resolution and concluded with the observation that Courts may very well step in and frame rules for the debarment of Advocates guilty of “unprofessional or unbecoming conduct”..IT WOULD THUS appear that, as far back as 2002, the Supreme Court was considering the possibility of imposing some sort of disciplinary control on the lawyers. This matter was brought to the Supreme Court once again in the Salem Advocate Bar Association Case. On December 9, 2004, the then Solicitor General of India, GE Vahanvati, wrote to the BCI, informing it that the Supreme Court had asked the BCI to consider the impact of strikes undertaken by lawyer. The letter states:.“One does not have to elaborate on how such strikes impacted [sic] on the image of the Judiciary and the legal system. Litigants are harassed. The system is disrupted, but more importantly, the image of the Bar and, with respect, the majesty of the law is seriously tarnished, particularly when it is realised that such strikes are in violation of the law laid down by the Apex Court…..” (Emphasis supplied).Clearly, the Bar Councils knew what they were doing was against the law. Yet the strikes continued (to get an idea of how frequent such strikes are, simply type in the word “strike” in the search box to your right) And no action was taken. Nothing happened. Absolutely nothing..IT IS NOT as if the State Bar Councils are unaware of this problem. A former State Bar Council Chairman privately admitted that there are some serious concerns about the manner in which the legal profession is being regulated. He blamed the overcrowding of the Bar as the primary problem; a situation where everyone is looking to make a quick buck..ANOTHER FACTOR IS the sheer number of Bar Associations. For example, in Swami’s petition, the High Court has issued notice to all District and Taluk Bar Associations in the State (numbering a hundred and eighty eight). It is difficult to imagine the State Bar Council having a say in the way these associations are run; in all probability the State Bar Council has little control over what these associations do. While sitting outside one of the courtrooms in the Madras High Court, one lawyer plainly told me, “What can [the Bar Councils] do? They are too sh*t scared to do anything.”.ANOTHER COMPLICATION IS the fact that not all lawyers are in support of the actions of the Bar Associations or even the State Bar Council. There are those who would support greater action against erring lawyers. Swami, for instance, says that a lot of lawyers support his petition; they are grateful that some steps are taken to remedy the situation..PERHAPS, SOME RECOURSE can be found in the way Bar Associations are managed. The Supreme Court Bar Association (SCBA) recently changed the criteria for those who are allowed to participate in the SCBA elections. So perhaps, just perhaps, the principle of self regulation might be an effective solution. If not, then the final recourse does lie with the judiciary. Or does it?.IN HIS INTERIM report on the Madras incident, Justice (Retd) Srikrishna writes,.“My view, albeit prima facie, is that the soft pedalling policy followed by the Madras High Court judges has led to the present piquant situation……..[the soft policy adopted] …clearly [sent out] a wrong message that encouraged and emboldened the lawyers into becoming law breakers.”.ON FEBRUARY 26, 2009, while hearing a writ petition [WP(C) No. 94 of 2009] relating to the Madras High Court incident, the Supreme Court expressed its “hope” that all the concerned Bar associations would “withdraw the strike at the earliest”. The lawyers in Tamil Nadu would only resume work on March 23. Two days ago, on February 17, 2013, the same lawyers declared that all courts in the State, including the High Court, would remain closed on February 19, 2013 in protest of the 2009 incident..EVEN SWAMI’S PETITION has not progressed as smoothly as one might have hoped. On January 29, 2013 the High Court directed that a copy of the petition be served to all the Taluk and District level Bar Associations, a move that may well hamper the early disposal of the petition. Furthermore, the Advocate Association of Bangalore, Respondent No.3 in the petition, has repeatedly sought adjournments for filing objections, leading to further delay. It may very well be that these proceedings are being deliberately delayed till a new Chief Justice is appointed; once that happens, the entire hearing will have to start afresh..SO WHERE DOES the solution lie? Perhaps it lies with the legislative. Ashwani Kumar, the Law Minister, has admitted that falling standards of the legal profession requires “remedial action”. In fact, the Law Commissions 135th Report had come to a similar conclusion way back in 1988. So should a law be passed to regulate the way lawyers conduct themselves? A code of conduct for lawyers embodied in a piece of legislation, a legislation which provides for the creation of a new disciplinary body? But then who will be a part of this disciplinary body? How will it function any differently from what has been prescribed in the Advocates Act?.IT IS MY personal opinion that change can only be brought in from the inside. Self-regulation, that oft-repeated tenet, has become so firmly entrenched in the legal profession that there may well be no other way out. The SCBA, may not be the ideal Bar Association, but it certainly points to a situation where change can be brought from within. Till then though, the legal professions needs people like Vishwanath Swami to ask questions. Those uncomfortable questions which no one wants to answer.