Pitch for just delivery system
The Chennai legal community has been plagued with the problem of unqualified persons pretending to be lawyers taking unsuspecting clients for a ride and sometimes literally taking law into their own hands. The High Court order issued by Justice S Vaidyanathan is perhaps the first step towards correcting this malaise
By : migrator
Update: 2017-12-18 19:06 GMT
Chennai
Come January 2, the process of filing ‘vakalats’- the power of attorney given to a lawyer to appear in your case to reply, plead and take necessary court orders on your behalf - will undergo a sea change. Vexed over the fact that over 33 per cent of the lawyers in Tamil Nadu are deemed as fake according to the Bar Council of India (BCI) estimates, the Madras High Court has laid down new procedures for filing vakalat, which includes affixing photographs of both the advocates-on-record and the advocate attesting the vakalat, among others.
The slew of guidelines mandates the advocates-on-record and the advocate who attests the vakalat, to produce copies of the enrolment certificate, BCI identity card and current residential or official address as proof. Along with this, the vakalat should also contain details of e-mail address and mobile phone number.
Taking law for a ride
Justice S Vaidyanathan had come forth with the guidelines while hearing a matrimonial dispute, wherein the process of law had been taken for a ride. The accused persons, besides filing multiple anticipatory bail applications concealing the pendency of previous applications, had also engaged new counsels at will.
Moreover, it was found that the advocate who attested the vakalat was fake, as varying enrolment numbers were provided. While one said that he had enrolled in 2004, another said he had done so in 2009. However, according to the BCI, there was no advocate by the name of Manivasagam, who had enrolled in both the said years.
With such rampant misuse turning out to be the last straw, Justice Vaidyanathan in his order held “All courts/tribunals in Tamil Nadu shall have the power to demand the identity card/ enrolment and certificate/ address proof of an advocate. If doubts exist, it can even direct him/her to produce copies of the same and refer it to the respective BCs for verification and if required, for necessary action.”
Checks and balances
The other procedures evolved include bail/ anticipatory bail application being in the form of an affidavit/petition duly signed by the petitioner/petitioner’s counsel concerned in all pages. Also, 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.
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 cellphone number, the order passed on November 6 said.
However, immediately thereafter, the Madras Bar Association and Madras High Court Advocates Association made a representation seeking to recall the guidelines issued. The plea wanted the Judge to make it as a suggestion for the amendment of the Appellate Side Rules of this court and there need not be any direction that the order shall take effect from January 2. MHAA, president G. Mohankrishnan who sought to modify the order contended that there should be amendment in the Rules framed under the Advocates Act, and until such time the direction to affix photos in vakalats cannot be accepted.
However, Justice Vaidyanathan, categorically holding that under the guise of saving the genuine advocates, protecting the fraudulent advocates cannot be accepted, said, “If anyone is aggrieved by the order of this court, the only remedy is to approach the apex court as section 362 CrPC is a bar for this Court to entertain any application either to review or recall the said order.”
Meanwhile, the order has been drawing mixed reactions. While a few advocates feel that the process would only add to the burden of genuine advocates, many are of the opinion that it would be worth the trouble, as it is bound to weed out the fake lawyers in the long run.
Advocate N Senthilkumar, who has been at the receiving end of certain rogue advocates indulging in kanagaroo court practices, resulting in him being provided with police protection, said, “The present mechanism available with the BCI in weeding out fake advocates is utterly toothless. The new guidelines are bound to be opposed by only a section of advocates who fail to practice at courts and instead, spend their time settling disputes by force. Hard measures usually spell hardships at the start. But in due course, it will be clear that it was for the larger interest of the legal fraternity.”
In fact, it is common knowledge that there exist advocates at the lower courts who randomly file vakalats and bail applications for clients without their knowledge or consent. The clients come to realise it only when their cases come up for hearing, resulting in them having to pay the said advocates to get them to withdraw their application. Such a practice came to the limelight when numerous vakalats were filed on behalf of Ramkumar, the person who allegedly murdered techie Swathi at the Nungambakkam Railway Station.
Counter point
Advocate M Radhakrishnan, who is planning to challenge the direction, said, “The execution of vakalat is governed by the rules framed by the High Court. If the vakalat filed is contrary to the rules, it should not be accepted by the registry. Even if there is an age-old convention regarding execution of vakalat, such convention can never be insisted upon. The High Court in 1989 took the view that no litigant should be compelled do which is not warranted by the rules framed by the High Court. In view of this ruling, the view that vakalat should be in a form not prescribed under the rules may not be right and this order should be reviewed suo motu by the judge.”
Interestingly, Justice Vaidyanathan, in his order, had held that if the Bar were to stand on technicalities and protect the fraudulent advocates, “this court cannot be a party to it, more particularly regarding 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 fake advocates.”
NOT AUTHORISED
Effective January 2, filing of vakalats has to follow the newly laid guidelines
NEW GUIDELINES FOR BAIL PLEAS
- Bail/anticipatory bail (AB) application to be in the form of an affidavit/petition.
- All pages to be duly signed by petitioner/ petitioner’s counsel.
- If AB is in petition format, advocate-on-record should sign in all pages.
- If AB is in affidavit format, attesting person shall sign in all pages.
- Name, enrolment and mobile number should be given in both cases.
NEW NORMS FOR FILING VAKALAT
- Photograph of advocates-on-record and attesting advocate to be affixed.
- Registry to scan the vakalat.
- Produce copies of enrolment certificate, BCI card.
- Proof of current residential or official address.
- Contain e-mail address and mobile phone number.
- Change of vakalat, consent of advocate-on-record duly required.
ONUS ON ADVOCATES TO PROVE GENUNINESS
- Courts/tribunals have power to demand ID card/ enrolment certificate.
- Courts/tribunals can refer cases to respective Bar Councils for verification.
- Initiate necessary action if required.
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