OH MYLORD! I don’t have a Brow to Beat

In the Tamil movie “Ellam Avan Seyal”, playing the character of a dump lawyer named “Vandumurugan”, actor Vadivelu has well demonstrated the court room sycophancy of a lawyer towards a Judge: In the movie the lawyer pleads to the Judge ‘Thangalukkutheriyadha sattamontrumillai athilethu sirantha sattamoathai thertheduthu intha kuttravalikku thandanai kodukkaventrumentu thazhmaiyudan ketukolkiren your honour’ (“There is no law in the world which your honour is not aware of—hence please select the best law and apply to punish this offender”). The lawyers in Tamil Nadu would not have even dreamt of such a situation happening so soon in the state.

Interestingly, the recent amendments to sec.34 of the Advocates Act 1961 by the Madras High Court, introducing certain new rulesof conduct for advocates,have the effect of recreating the above said scene. The amendments empower a court to debar an advocate if in the opinion of the court the advocate: (a) accepts money in the name of the Judge (b) spreading unsubstantiated allegations against the Judges (c) browbeats a Judge (d) participates in a procession inside the court campus, (d) holds any placards inside the court hall, and (e) comes to court hall under the influence of alcohol. The amendments also empower a Judge to debar an advocate on-spot as an interim measure pending final decision.

The Paradox

It is obvious that the High Court made these amendments to regulatethe conduct of errant lawyers—there is nothing to doubt the noble intention of the Court. But when the amendmentswould take effect there will be less of regulating errant lawyersand more of a destruction of the basic concept of ‘access to justice’ to any ordinary person.Of all the amendments, the most serious one is the rule which empowers a Judge to disqualify a lawyer if the Judge feels that the lawyer ‘browbeats’ the Judge.

Let’s be reminded that ours is a judicial system which is English-modeledwhere the lawyers’ role is to bring out truth and assist the Judge in arriving at aright decision. All our laws are primarily drafted in English and it is virtually impossible for uninformed litigants to understand the complexities of law for which they depend on lawyer. In the words of the former Chief Minister of Tamilnadu Mr.C. N.Annadurai, ‘Sattamenbathu iruttaraiathilvakkilin vathamoru vilakku’ (Law is a dark room where the arguments of a lawyer is the light).

Further the Judge-advocate relationship is not akin toheadmaster-student. Advocatesare officers of the court. Their duty is to guide the Judge to deliver justice. However, the court is at the risk of delivering a wrong judgment if a lawyer misguides the Judge. The same will be the case with lawyers’ silence. Thus if advocates are robbed of their free speech inside court halls, the voice of any ordinary person will not reach the ears of a Judge. Browbeating invites such an unpleasant outcome for cases.

Rule on ‘Browbeating’ as Violation of Natural Justice

In Webster’s dictionary ‘Browbeating’ means “To depress or bear down with haughty, stern looks, or with arrogant speech and dogmatic assertions; to abash or disconcert by impudent or abusive words or looks; to bully; as, to browbeat witnesses”. The term is not legally defined, which means it gives unbridled discretion to a Judge to view and interpret an action of a lawyer as browbeating and could debar him from practice.

One of the cardinal principles of natural justice is Nemo Judex in causasua meaning “No man should be Judge of his own cause”. If a Judge is allowed to penalize a lawyer if the Judge feels that the lawyer is browbeating him, it is a violation of this principle. Moreover no appeal provision is provided for a debarred lawyer to challenge the decision of a Judge.

A Judge acting under the new amendment scan become a despot in a courtroom. This will have implication for the justice delivery system in the lower courts than in the High Court, as in a High Court, Judges are selected among competent lawyers with at least 15 years of active practice who are generally above the age of 40. There will be greater display of maturity and prudence by persons of that level which is in addition to their awareness of the nuances of the legal profession and hence the chances of them penalizing a lawyer under ‘Browbeating” will be limited except for any kind of willful victimization by a Judge. However, this need not in fact be the case in lower courts where Judges are appointed at the age of 23 or 24 right from the law school. They may not have the maturity and experience of a senior Judge to understand the fact that an advocate argues for a client and his argument need not be taken as a personal attack on a Judge. Further young lower court Judges may even feel offended if a lawyer files an appeal against their order and in the appeal memo if the lawyer makes any standard remarks like ‘the lower court Judge erred’the advocate may be victimized by the Judge when he appears in any other case before the same Judge.Needless to say, some of the Judges in the lower court have the credit of initiating action against their household employees for being unpromising in performing their tasks. If such is the rationality which these Judges employ in interpreting the term ‘Browbeating’, it is going to be counterproductive for the legal profession. However, be it a Judge of the High court or of the subordinate court, bestowing such an unbridled power without any accountability will be a threat to the very foundation of the justice delivery system.

Moreover, the legal education in Tamilnadu is predominantly in Tamil medium and many people from economically and socially lower strata of the societies become lawyers. Such lawyers might not have mastered English language. Even a lawyer studied in English medium schools may not have the perfect vocabulary to argue a case in a pleasing way. More often because of the language barrier the argument and usage of English words may likelyoffend a Judge eventhough it may not be the intention to do so. Thus these amendments impose a kind of fear in the minds of the lawyers who have handicap in English language and may even discourage them from appearing in courts which is nothing but a violation of the ‘Right to Equality’ under Art.14 and ‘Right to Life’ under Art.21 of the Constitution of India.

Not a Bar v. Bench Issue

When lawyers protest and boycott the courts, sometimes, the public opinion is against the lawyers, which may be due to the ill-reputation which we lawyers have acquired over the years because of the frequent boycotts on the drop of a hat. However theissue over ‘Browbeating’ has larger ramifications as mentioned above and is not confined to lawyers alone. Lawyers are the messengers of the general public to the Judges. If Judges start shooting the messengers, the message would not be conveyed to the Judges. It affects everyone in society. Even governments are not immune to it such that Governments cannot argue their case effectively as the Advocate Generals, Government Pleaders, and Public Prosecutors have to argue in a way suitable to the Judges, failing which they also risk their job-thanks to ‘Browbeating’.

The past conduct of a section of lawyers in Tamilnadu would have prompted our Hon’ble High Court to frame such rules. But in the name of regulating some errant lawyers the High Court framed these rules touching upon the rights of an individual to ‘Access to Justice’. Access to Justice is denied only in cases of declared emergencies and even our Parliament and Legislative assemblies donot have the mandate to debar the members at the instance of the Chairperson/Speaker if he/she findsa member browbeating the Chair.

The Hon’ble Chief Justice of Tamilnadu has constituted a high level committee of five Judges to look into the effect of these rules. Every social actor including political parties, NGO’s, civil society, media and general public should represent before this high level committee of Judges and negotiate with the Hon’ble High court and convince it to withdraw these amendments failing which every advocate in Tamilnadu will have a fear to discharge their duty towards the bench and to the general public and will turn out to be ‘Vandumurugans’ and can only plead“Oh My Lord! I don’t have a brow to beat”and that will seethe end of justice delivery system.

Puhazh Gandhi P. LLM. (NYU), LLM(NUS),M.Phil (JNU) is a lawyer based out of Chennai and is the Managing Partner of the law firm SPAB&Co., Advocates and Legal Consultants. He can be reached at Puhazh@spabandco.com

Views are personal of the author and does not reflect LiveLaw’s views.