Opinion Op Ed 23 Nov 2019 ‘Do it yoursel ...

‘Do it yourself’ litigants: Dovetail regulation with compassion

DECCAN CHRONICLE. | SANJAY PINTO
Published Nov 23, 2019, 3:09 am IST
Updated Nov 23, 2019, 3:09 am IST
All that the rules seek is a degree of regulation. Clause 5 stipulates that appearance is no longer automatic and requires an application.
Madras high court
 Madras high court

Think about it. Can a person who has not studied medicine be allowed to perform a surgery, or even prescribe drugs? Can a person who isn't qualified to be a pilot be permitted to fly a plane? Law seems to be the only profession that has been accommodating enough to give ordinary citizens the freedom to appear even before the Chief Justice and argue their own case, without necessarily having to engage an advocate.

The high court of Madras (Conduct  of  Proceedings by Party in Person) Rules, 2019, may cause some heartburn among  prolific and 'professional'  public interest litigants who appear in person. But it must be seen against the backdrop of instances of parties-in-person creating a nuisance, wasting time of the court and not maintaining decorum. Even advocates may find it challenging to follow the maze of  legal procedures. A lay person may be at sea.

 

All that the rules seek is a degree of regulation. Clause 5 stipulates that appearance is no longer automatic and requires an application. Clauses 6 to 8 lay down a procedure for scrutiny by a committee constituted by the Chief  Justice. The committee would ascertain if the party is competent to appear before the court and, inter alia, has complied with the Madras high court Original Side Rules, 1956 and the Madras high court Appellate Side Rules, 1965. In cases where they are not cleared by the Committee, they are to be referred to the Legal Aid Cell.

Far from being draconian, there is enough latitude provided for genuine cases. The court seems to have taken the cue from the Law Commission of India's caution that "to require a person to seek prior leave" in anticipatory bail or habeas corpus pleas, "would be violative of  basic right to liberty as guaranteed in Article 21 of the Constitution".  Clause 9 states that the rules do not apply to bail, parole or habeas corpus petitions. The Court has reserved its discretion under Clause 10 to permit any litigant to appear in person. The Rules are silent on whether they would apply to advocates who want to appear as party-in-person. Logically, no.

There are laws to rein in trouble makers. There is the Vexatious Litigation (Prevention) Act, 1949 in Tamil Nadu. And of course, the Contempt of  Courts Act. Section 250 of the Code of Criminal Procedure (CrPC) empowers a Magistrate to order a person who has made an accusation without a "reasonable ground" to payment of compensation, and on default, to  undergo simple imprisonment for a month. Similarly, under Order VII, Rule11 of the Civil Procedure Code (CPC) a plaint may be rejected if it does not disclose a cause of action. As per Order VI, Rule 16 of the CPC, pleadings that are "unnecessary, scandalous, frivolous or vexatious", which may "tend to prejudice, embarrass or delay a fair trial" or are "an abuse of the process of the court" can be struck out.

A few months ago, a private members bill was introduced to prevention vexatious litigation after futile attempts in the past, with the bill having lapsed. Viewed from the angle of a docket explosion and wastage of time, it may be pertinent to point out that the biggest litigant in the country is the government!
From an academic perspective, the Law Commission's 192nd report had referred to the Madras Vexatious Litigation  Prevention Act,  a Maharashtra enactment of  1971  and  identical laws of other countries. "In the Madras Act, 1949, it is stated in Section 3 that leave shall not be given in respect of any proceeding which may be filed by the vexatious litigant unless the court finds a'prima facie' ground for such proceedings. The Maharashtra Act, 1971 refers to two conditions. Section 2(2) states that leave shall not be given unless the court is satisfied that the proceedings are not an abuse of the process of the court, and there is prima facie ground for the proceedings. Section 42(3) of the UK Supreme Court Act, 1981 uses the words 'unless' the high court is satisfied that the proceedings or applications are not an abuse of the Court in question and that there are reasonable grounds. In  California, Section 391.7(b) uses the words 'only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay."

Amid all this legal hair splitting, we must  remember that the Supreme Court has, in the past, even treated ordinary post cards addressed to it as public interest litigation and issued notices to the authorities and ordered action, what to speak of appearance in person!

The  psychological condition of the little man  who has suffered injustice and knocks at the doors of the higher judiciary must never be lost sight of. He may need regulation, alright.  Show him some compassion too.

(The writer is an advocate at the Madras high court, columnist & author)

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