Lawyers will be debarred from rolls, if they strike

Chennai: Advocates can no longer resort to strike as the Law Commission has recommended introducing an amendment to the Advocates Act, providing power for the state bar council to remove an advocate from the rolls for indulging in the strike, besides provision for claiming compensation from advocates, if a litigant suffers loss due to his/her participation in strike.

Last year, there has been a prolonged boycott of courts by lawyers since June 1, 2016, against the new disciplinary rules framed by the Madras high court against them (empowering the courts to debar an advocate from appearing in court for misconduct). It came to an end on July 26, 2016, after the high court had decided to keep in abeyance the new rules. Thereafter, the advocates in Tamil Nadu went on a one day boycott on January 20 over jallikattu issue. Since then, the courts have been functioning smoothly.

"The recommendations made by the law commission of India are totally against the advocates' "right to practice". More particularly, we are against the recommendations for providing power to remove advocates from rolls for abstaining from attending courts work and for bringing provision for claiming compensation against advocates for misconduct or participating in a strike", said G. Mohana Krishnan, president of MHAA.

But what made the law commission to make such recommendations and forward The Advocates (Amendment) Bill 2017 to the Union government for its consideration is the point to be noted.

Following a direction from the Supreme Court in Mahipal Singh Rana Vs State of UP case, the Law commission went into the aspect of regulating the legal profession and after considering the views and suggestions made by all stakeholders including Bar Council of India, has made the present recommendations.

In its report, the Law Commission noted that in recent years, the role of advocates, particularly in the dispensation of justice through courts of law has come under sharp criticism and was being viewed as an eyesore by the public.

The advocates' conduct in courts, behaviour with litigants and their unprofessional conduct, including the act of going on frequent strikes as a measure of protest for irrelevant issues have reached to terrifying proportions.

This has resulted in the loss of opportunity to litigants to get their grievances redressed, coupled with the introduction of greater violence, both in courts and outside, in various forms. In spite of repeated pronouncements of the Supreme Court and high courts declaring strikes and boycotts to be illegal, the same has continued unabated, coupled with violence and instances of misconduct, the law commission added.

While reviewing the Advocates Act, the Law Commission also collected the data on loss of working days by the call for strikes across the country during the last five years. The law commission was astonished on going through the data, as it was found that the strikes by the advocates were rampant throughout the length and breadth of the country with little variations in degree.

The commission noted that the strike by advocates or their abstinence from the court were hardly for any justifiable reasons. It could not find any convincing reasons for which the advocates resorted to strike or boycott of work in the courts.

Therefore, the law commission has recommended substitution of new section for section 26A of the Advocates Act to include removal of the name of advocate, who was found guilty of serious misconduct or abstaining from courts work or causing obstruction in court's functioning.

The Law commission also recommended a benevolent provision for the litigants. It recommended insertion of new section 45 A to claim compensation in certain cases. "If any person suffers loss due to the misconduct of the advocate or for his participation in a strike or otherwise, then, such person may make a claim for compensation against the advocate in the appropriate forum established under any law for the time being in force. The non-payment of fees, either in full or part, by a person to his advocate, shall not be a defence available for the advocate against whom such claim for compensation is made".

Senior counsel A. Sirajudeen says, "Bar council is a statutory body established for and mandated to regulate the legal profession and also set and enforce the professional standards. The relationship between the advocates and the clients are in the nature of contracts. Once a brief is accepted by an advocate, at any cost, he has to appear in the court when the case is taken up. Abstaining from appearing in the court when the case is taken up is highly unethical. "