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Justice S Vaidyanathan of the Madras High Court has reiterated that it has become imperative to insist on verification measures at the time of filing applications with the Court, to guard against fraudulent elements in the legal profession.
Earlier this month, the judge had issued a host of directions in this regard. Specifically, Vaidyanathan J had framed certain mandatory procedures to be followed by advocates at the time of filing bail applications and vakalatnamas with the Court registry. Inter alia, the Court had directed that the bail application be presented as an affidavit with the signature of the concerned counsel on all pages.
With regard to filing vakalats, the Court ordered that the photograph of the Advocate-on-record be made part of the document, along with details concerning the Enrolment Certificate, Bar Council Identity Card, address proof etc. As per this order, the said procedures would become mandatory from January 2, 2018.
Subsequently, representatives of the Madras Bar Association and the Madras High Court Advocates Association made a representation praying that the Court’s aforementioned directions be recalled, or, in the alternative, that the Court only make a recommendation for amendment to the Appellate Side Rules.
It was brought to the notice of the Court that a Division Bench of the High Court had earlier overruled similar directions issued by another single judge with respect to filing of bail applications.
The Division Bench in the said case had opined that the Court had no powers to introduce such procedural rules on the judicial side. If at all the Court wanted to frame such rules, the Division Bench held that the same had to be introduced in exercise of its administrative powers, through appropriate amendment to the High Court’s Rules of Practice.
However, the Court declined to tamper with its earlier order, citing Section 362 of the CrPC, which bars the Court from altering its judgement. The Section lays down that,
“…no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”
It was further noted that due opportunity was available to make the said representation to the Court before it passed the impugned order. The judge observed that despite its request for suggestions on the matter, no such representation was made.
On the other hand, had the Court been informed of the Division Bench ruling at the appropriate stage, it may not have incorporated the impugned directions in its order. However, as it stood, the Court was prevented from altering its earlier order in view of Section 362.
Hence, the only remedy available to persons aggrieved by the said order is to approach the Supreme Court.
Justice Vaidyanathan, however, hinted that it is high time that appropriate verification measures be adopted to counter the rise of fraudulent advocates. It was observed that,
“If the Bar is going to stand on technicalities and protect the fraudulent Advocates, this Court cannot be a party to it, more particularly with regard to the fate of the litigants. Moreover, this Court is more concerned about the moral values in the Advocate profession, than the legality of any issue, particularly, in the context of the fraud played by the fraudulent Advocates.
It is to be remembered that law profession is already under severe criticism and due to the illegal activities of lawyers in this State, the reputation of lawyers is getting diminished among the public…
…Unless the photographs are affixed on the Vakalat/Memorandum of Appearance, it will be very difficult to ascertain the genuineness of the Advocate. The days are not far to link Aadhar details to verify the genuineness of the Advocates.”
The judge emphasised the importance of the legal profession in contrast to the steep fall of its standards as of late.
“Law profession is a service oriented profession, which lost its charm in the past decades due to enrolment of some black sheep in it…If a Doctor commits mistake, his patient will go 6 feet beneath the Earth, whereas if an Advocate commits mistake, his client will go 6 feet above the Earth (death sentence by hanging).”
He noted that the proposed guidelines would not find objection among upright legal practitioners.
“The Bar has made a mention only to please the Bar members. Certainly, the genuine legal practitioners will not object to the directions/suggestions made by this Court in the said paragraphs…as they were expecting someone to bell the cat.”
In conclusion, the Court opined that while it is open for the aggrieved persons to approach the Supreme Court against the impugned procedural directions,
“If the suggestions/directions are not going to be adhered to, even the God can’t save this profession and this institution.”
Read Order below.