The Lakshadweep Bar Association has urged the Kerala High Court to abolish the Mukthiyar system prevalent in the Union Territory [In Re: lnfrastructural and Other lssues Relating to Administration of Justice in the Lakshadweep lslands].
The association made submissions to this effect in its counter affidavit in a suo motu case initiated by the High Court to address issues pertaining to judicial infrastructure in Lakshadweep.
Mukthiyars are pleaders who, owing to their experience with customary laws applicable to the islands, are permitted to participate in legal proceedings as power of attorney holders.
In Lakshadweep, Mukthiyars are usually retired government employees. They approach the litigants directly and get a mukhtyarnama executed in their favour even in criminal cases.
In its affidavit, the association contended that Mukthiyars function without any regulations, posing a threat to the administration of justice itself.
"The Mukthiyar system currently in operation in Lakshadweep continues to function in the absence of any prescribed rules, regulations, or institutional framework to govern its practice. There is also no established disciplinary authority to oversee or regulate the conduct of those operating under this system. This lack of regulation poses a potential threat to the fair and impartial administration of justice," the affifdavit stated.
With the presence of qualified lawyers practicing on the islands, litigants no longer require the services of mukthiyars.
"Therefore, the continuation of the Mukthiyar system, in the absence of legal oversight or regulation, may compromise the integrity of judicial proceedings and hinder the development of a robust, accountable legal system in Lakshadweep," the association argued.
The amicus curiae appointed by the Court to assist in this case, advocate Enoch David Simon Joel, also suggested that the Mukthiyar system be abolished, albeit in a phased manner.
In the amicus report, Joel raised concerns similar to those of the association regarding the lack of rules governing the operation of Mukthiyars.
"There is no prescribed standard qualification for a person to be a mukhtyar. There is no selection process, no instrument that refers to the powers/duties of mukhtyars and no authority to control or register the said class of mukhtyars. Anybody can appear in front of Court/legal authority claiming to be a mukhtyar and every Court/authority has to permit him to conduct or defend the case of his client," the amicis report stated.
Notably, Joel stated that Mukthiyars even wear black coats while appearing before the Court and produce a document referred to as a mukhtyanama, claiming they are authorised to represent the client.
He also submitted that Mukthiyars are often not well versed in the law. This is detrimental to the interests of litigants represented by them, especially in criminal cases.
"Mukhtyars being permitted to appear on behalf of accused in criminal cases is violative of the rights guaranteed to a citizen under Article 22( 1) of the Constitution of India as well as under Section 340 of the Bharatiya Nagarik Suraksha Sanhita, 2023," the amicus submitted.
Joel attributed the prevalence of the system to the fact that the Advocates Act, 1961 has not been made applicable to the islands as the statute bars anyone who is not an advocate from practicing law before any court.
Therefore, Joel called for abolishing the system in a phased manner and for raising awareness amongst islanders regarding the lack of statutory credibility of Mukthiyars.
The amicus, however, urged the Court to also ensure the welfare of existing Mukthiyars by enacting a welfare scheme for them and perhaps utilising their services in alternate dispute resolution proceedings such as mediation.
"The Lakshadweep Administration as well as the High Court of Kerala can think about framing of necessary Schemes under the Legal Services Authorities Act, 1987, wherein the service of such mukhtyars can be effectively utilised in alternate dispute resolution (ADR) proceedings" the amicus suggested.
The Lakshadweep Muktyar Association has since approached the High Court seeking to be impleaded in the suo motu case.
The Association has indicated in its application that it would press for recognising Mukthiyars with a certain number of years of practice under their belts, as advocates under Section 24(3) of the Advocates Act.