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Justice S Vaidyanathan of the Madras High Court has laid down certain procedures to be complied with before filing cases, to guard against practice by fake advocates.
While passing the order, he has also recommended that the Advocates Act be appropriately amended to allow enrolment of advocates only after they have passed the All India Bar Examination (AIBE).
The directions were issued while disposing of a petition for anticipatory bail in a divorce case. While hearing the case, the judge noted that the respondents in the case had been able to suppress material facts concerning the pendency of multiple anticipatory bail applications by frequently changing counsels. It was further noted there were elements of fraud at play with respect to certain advocates who represented the respondents.
In this context, the judge referred to the statement reported to have been made by the Chairman of the Bar Council India that over 33% of lawyers in Tamil Nadu are fake. The judge observed.
“Undoubtedly, legal profession is deteriorating through persons, who are conducting Kangaroo Courts. To avoid malpractice, filing procedures shall be followed while executing the Vakalat in terms of Rule 8…”
Advocate General Vijay Narayan also recommended that guidelines be framed by the Court with respect to filing of documents, before the petition is numbered.
Therefore, Justice Vaidyanathan has proceeded to direct that the following procedures be followed at the time of filing Vakalatnamas:
“(i) Bail/anticipatory bail application should be in the form of an affidavit/petition duly signed by the petitioner/petitioner’s counsel concerned in all pages;
(ii) If the anticipatory bail application is filed in petition format, the Advocate-on-record should sign in all the pages of the petition and if the anticipatory bail petition is filed in the affidavit format, the person who is attesting the affidavit shall sign in all the pages;
(iii) In either case, the name of the Advocate/Attesting Person should be written/affixed in capital letters, mentioning his place of qualification, enrolment Number and Cell Phone Number;
(iv) The photograph of the Advocates-on-record and that of the Advocate, who attests the Vakalat shall form part of the Vakalat and Registry shall scan the Vakalat so filed;
(v) The Advocate-on-record and the Advocate, who attested the Vakalat shall produce copies of the Enrolment Certificate, Bar Council Identity Card and the present residential or official address as proof. The Vakalat shall contain address together with e-mail address and Cell number. This will reduce malpractice and eradicate fake Advocates.
(vi) For getting change of Vakalat, the consent of the counsel-on-record is duly required. Wherever the party is unable to get change of Vakalat, the new counsel should file Vakalat along with necessary documents, mentioned supra along with affidavit and petition of the party. The Courts below can accept it as a petition for changing the counsel and pass appropriate orders, immediately to avoid further sufferings to the litigants in criminal matters.”
The Court has directed that the procedure laid down above is applicable to all the courts/tribunals situated in Tamil Nadu and would be effective from January 2, 2018.
Further, the Court has also held:
“All Courts/Tribunals in Tamil Nadu shall have the power to demand the Identity Card/Enrolment Certificate/Address proof of an Advocate, if it has doubt and even direct them to produce photostat copies of the same and Courts can refer it to the respective Bar Council for verification and if required, for necessary action.”
Justice Vaidyanathan noted that in light of standards laid down by the BCI, only those advocates who clear the AIBE can be allowed to practice. The BCI had passed a resolution to this effect in 2010.
In addition, the Court also suggested that appropriate amendments be made to the AIBE Rules, 2010 and if required, to the Advocates Act, 1961,
“…to allow enrolment and practise of newly enrolled Advocates only after passing of the Bar Council exams, i.e. enrolment shall take place only after clearing of Bar Council exams.”
Recently, related issues concerning the verification of lawyers to ensure the integrity and quality of advocates in the Madras Bar was also taken up by Justice N Kirubakaran of the High Court.
Following various orders passed by Justice Kirubakaran, the Tamil Nadu Bar Council is in the midst of weeding out fake lawyers as well as lawyers found to be practicing sans prescribed educational qualifications.