By Sanjay Raman Sinha
In the recently convened special session of Parliament, the Women’s Reservation Bill was passed with much fanfare and fireworks. Amidst the drama, what failed to get tabled was the much awaited Advocates (Amendment) Bill, 2023.
The Bill to amend the Advocates Act, 1961, was earlier passed in the Rajya Sabha and was to be placed before the Lok Sabha. However, after the passage of the Women’s Reservation Bill, Parliament was adjourned sine die, and the Advocates (Amendment) Bill couldn’t be tabled.
However, the intent of the government was articulated by Minister of State for Law and Justice (Independent charge) Arjun Ram Meghwal who said that the main aim of the Bill was to control touting in the legal profession. The Bill seeks to repeal certain outdated provisions of the Legal Practitioners Act, 1879, and to make “touting” a criminal offense.
A tout has been defined as a person who tries to buy the employment of a legal practitioner in return for renumeration. In court-slang, he is often called a “court bird”.
Provisions in the Bill raise the bogey of executive control over the judiciary through the backdoor as it empowers a senior district administration official (not below the rank of district magistrate) to initiate an inquiry by the local judge. It also provides for every High Court and district judge to frame and publish a list of touts.
The Bill said: “45A. (1) Every High Court, District Judge, Sessions Judge, District Magistrate, and every Revenue-officer, not being below the rank of a Collector of a district (each as regards their or his own Court and the Courts, if any, subordinate thereto) may frame and publish lists of persons proved to their or his satisfaction, or to the satisfaction of any subordinate Court.”
A district official (in short, the government) can actually instruct the local judge to initiate an inquiry and publish a report on touts. The prime minister-chief minister-district magistrate (PM-CM-DM) chain of command is not lost on anyone and any lawyer who is not in the good books of the government or who has taken an anti-government stand can become a target.
Section 45 (3) of the Act specifies: “Any authority empowered under sub-section (1) to frame and publish a list of touts may send to any Court subordinate to such authority the names of any persons alleged or suspected to be touts, and order that Court to hold an inquiry in regard to such persons; and the subordinate Court shall thereupon hold an inquiry into the conduct of such persons.”
Inderjit Badhwar, editor-in-chief, India Legal, said: “Governments have always been greedy for power. This government wants to control the judiciary and the lawyers’ community. It is trying to do this now through this Act. The provision is that the district magistrate or the concerned officer can identify alleged touts and publish their names. This will make lawyers susceptible to government pressure. The advocate community will be under duress and under the control of the government.’’
Justice Bhanwar Singh, former judge of the Allahabad High Court, seconds the opinion and fears of Badhwar. “The reason for empowering the district official doesn’t seem to be there. A strong reason for this is that both the district magistrate and district judge have separate jurisdictions. The former has no control over the district judge and the High Court. The district magistrate has no right to interfere in the jurisdiction of the district judge. If someone’s name is wrongly published as a tout, a writ petition can be filed in the High Court and no one can interfere in this. The Supreme Court has also said that the writ in itself is a very powerful mechanism of the High Court.”
Another cause for concern is that it is the first time that lawyers are being brought under the criminal action jurisdiction of the police. Section 45 (6) of the Bill proposes: “Any person who acts as a tout whilst his name is included in any such list shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both.”
Justice Singh admits that touts are a nuisance and should be strictly dealt with. “There is no denying that there are touts in the legal system. They keep the advocate as a client and provide him business or cases. This is a serious problem. My experience is that in Allahabad almost all clients are approached by touts, especially those coming from remote areas to fight a case. In this context, the punishment and fine should be increased—to one year and Rs 10,000 respectively.”
The fear of being picked up by district officials and branded a tout can’t be discounted. It is lawyers who take on the might of the police and the administration and fight the injustices suffered by their clients. So clearly, there is a conflict of interest.
So what are the safeguards available to advocates or people mentioned in the tout roster? The Bill apparently has a provision which gives a fair hearing to the accused. Section 45 (3) states: “…and the subordinate Court shall thereupon hold an inquiry into the conduct of such persons and, after giving each such person an opportunity of showing cause as provided…”
Kumar Ramesh, Honorary Secretary of the Delhi Bar Council, allays fears of wrongful prosecution and intentional targeting of individuals. He said: “Before the person is declared a tout, he will be given a chance to clarify his position. Till the time the evidence is placed before the probe committee, the person can’t be declared as a tout.”
The question that arises next is whether the Bar Council has been sidelined. Hitherto, it was the Bar Council that was authorised to take action against erring lawyers or those indulging in professional impropriety.
Murari Tiwary, Chairman, Disciplinary Committee, Delhi Bar Council, explained: “Any person who is not enrolled in the Bar Council and who doesn’t have an advocate’s license comes under the scanner of the Council. If a person is committing a fraud, that too in the court premises, then penal action will be taken and that comes under the jurisdiction of the police. You will find at least one police post or police station in the court because the offences committed there come under the police jurisdiction and not the Bar Council’s. The Bar Council will only try those offences where an advocate who has a genuine license has committed any misconduct with the client.”
How does the system work in foreign countries? There also the problem of “court birds” is rampant. Does the Bar Council have a say in curbing the activity of touts or is it dealt purely as a criminal matter? Badhwar, who had a long career in journalism in the US, explains: “In foreign countries, the role of the Bar Council is most important. It is not a rubber stamp. Before anyone is declared persona non grata in court or forbidden to enter its premises, the local bar council gives him a fair hearing.”
Nonetheless, there is an apprehension in India that the role of the Bar Council is being diluted in the Bill and that it is being sidelined by the government. Former Law Secretary PK Malhotra said: “The Bar Council is not being sidelined because two lines of action are possible for advocates acting as touts. The police can take criminal action as per the Indian Penal Code, and the Council can revoke his license. If a person is a non-advocate, then he faces criminal proceedings by the police and the Bar can prevent his entry in the court premises.”
Concerns over the Bill are widespread. Vivek Subbareddy, president, Karnataka Bar Association, said: “I think the judiciary and the advocate community should carefully mull over the Bill. It is essential that a Laxman Rekha be drawn and executive interference in the judiciary be dissuaded. Judicial functions of an advocate are clearly beyond the interference of the executive. These issues have to be carefully addressed and it is essential that the Bill safeguards the interest of advocates and the administration of justice. There has to be a reform for protecting advocates’ freedom and also for giving them more freedom to argue their cases.”
The judiciary, which means both the Bar and the Bench, should come together and examine the spinoffs from the proposed law. In the name of reigning in touts, is the judiciary being shortchanged? Is the freedom of advocates being compromised? These hard questions must be answered by a joint exercise and the government as a stakeholder in the judicial system should allay these fears.
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