Who will bell the legal cat?3 min read . Updated: 06 Oct 2015, 12:33 AM IST
Perhaps the best hope for improvement is for non-bar association and non-bar council lawyers themselves to begin taking an interest in the profession
The old aphorism that managing lawyers is like herding cats was applied originally to managing partners of law firms trying to control their partnership.
However, it should more aptly apply to the Indian bar as a whole, because no one has managed to bell that particular cat.
In theory and under the Advocates Act, the Bar Council of India (BCI) has the responsibility and the power to control lawyers who step out of line.
The BCI tried to do so at the end of the last month when it suspended 15 lawyers for allegedly indulging in violence during protests at the Madras high court. It partly blamed the mushrooming number of law schools in India that it said produced farzi lawyers (fake), for which, ironically, no one but the BCI has responsibility (http://mintne.ws/1iZO9j6).
Despite the apparently sound intentions in this case, the Tamil Nadu and Puducherry bar council immediately pushed back, passing a resolution asking the BCI to reconsider its decision, while local bar associations ordered strikes over the suspensions (http://mintne.ws/1j9ddos)
The ground reality of power is such that outside of Delhi the BCI has been unable—or unwilling historically—to wield any real influence on lawyers.
And while the state bar councils could be nominally expected to regulate the behaviour of lawyers, it is very rare for them to intervene. All state bar council members are elected by local lawyers. If you start alienating the local bar by cracking down on strikes or protests, your chances of re-election will dwindle and you’re likely to lose the juicier executive positions on your state bar council as others move to fill the vacuum.
The real power over advocates lies with local bar associations, who are much more directly connected to the legal electorate, holding regular events, meetings, elections and calls for strikes, protests and other rallies.
However, elected bar association officials are usually not beholden to anyone other than themselves, except, like bar council members, being subject to re-election. But what gets you elected to either of these bodies is populism and making your voters feel powerful and important.
So, if not the bar itself, maybe the bench can bell the cat of the farzi lawyers and their representatives?
Privately, judges regularly complain that the lower judiciary in particular, but also some high courts, have no effective control over the bar either. Chief Justice of India H.L. Dattu said judges have a “fear psychosis" when it comes to lawyers in the Madras high court.
A judge has the power of contempt that they can throw against any lawyer, but that too needs to be enforced by the police or officers of the court.
When you’re faced with 20 lawyers turning up in your court room shouting slogans and threatening to boycott your court or riot or worse, what can a lower court judge reasonably do?
Even in the high court, it is rare for a judge to try and rein in lawyers. Allahabad high court chief justice D.Y. Chandrachud was an exception, but many more are forced to back down when faced with the final weapon: repeated and continuing strikes that wreck the pendency statistics by which even judges are ultimately judged.
Perhaps the best hope for improvement is for non-bar association and non-bar council lawyers themselves to begin taking an interest in the profession.
Two months ago two Guwahati lawyers filed a public interest litigation against a strike, and last month Tamil Nadu additional solicitor general G. Rajagopalan approached the Madras high court to order the BCI to dissolve the Tamil Nadu and Puducherry bar council for not taking any action against errant members.
The alternative—for good lawyers to stand by and do nothing—means surrendering the legal system to farzi lawyers.