Sunday, November 23, 2014

Unwelcome Lawyers -- Guest Post by Smaran Shetty

A natural assumption regarding any judicial system that seeks to resolve legal disputes, is that lawyers would be permitted to participate in the adjudicatory process, and assist the parties they represent. This assumption is largely codified in Section 30 of the Advocates Act, 1961, which empowers advocates who fulfill the requirements for enrollment under that Act, to appear before courts and tribunals in India. Despite this general authorization for lawyers to appear before judicial fora, there are numerous instances of statutory exclusion of legal practioners. This exclusion varies from a complete ban on advocates appearing in a forum, to a more conditional exclusion where lawyers may only represent parties to a dispute with the prior permission of the court and/or the opposing side.

In this post I seek to explore this curious exclusion, and demonstrate that such exclusions are interesting, in that they perceive lawyering as detrimental to the legal process, and thereby exclude a key element of the legal process. In understanding the nature and extent of this exclusion, I do not make any normative claims regarding the justification of such exclusion as apparently aiding in the speedy resolution of these disputes, or whether lawyers should be given a carte blanche to appear before all kinds of fora, despite the peculiar needs of sensitive legal disputes.

As previously stated, Section 30 of the Advocates Act authorizes lawyers who fulfill the requirements of enrollment, and whose names appears on state rolls, to appear and practice before courts and tribunals in India. Curiously, despite the Advocates Act being enacted in 1961, Section 30 was only notified in 2011, and formally took effect from 15 June 2011. The omission to notify Section 30 has been noted in a number of judicial decisions, and culminated in the Supreme Court’s decision in Aeltemesh Rein, Advocate, Supreme Court of India v. Union of India, where the court issued a writ of mandamus directing the Central Government to consider whether the said section should be brought into force within a period of six months from the date of the decision. A copy of the belated notification can be found here, and the relevant news reports here and here.

Exceptions to the general rule contained in Section 30 can be found in range of statutory enactments. For instance, Section 36(4) of the Industrial Disputes Act, 1947 allows lawyers to appear before Labour Courts, Labour Tribunal or the National Tribunal (as the case maybe), only when the prior consent of the opposing side as well as of the Court itself, is sought and granted. The apparent conflict between Section 30 and Section 36(4) was considered in Pradip Port Trust v. Their Workmen. Even though Section 30 had not been notified at the time of this decision, the court observed that Section 36(4) of the Industrial Disputes Act was enacted for the benefit of workmen, and to ensure the speedy resolution of labour and industrial disputes. It was also noted that since the Industrial Disputes Act was a specialized statute, intended to secure the rights of a determinate class, it could reasonably depart from the general rule contained in the Advocates Act. Importantly, the court noted that the scope of Section 36(4) and 30 should not be resolved bearing in mind the apparent rights of lawyers, but the interests of the actual parties to the labour dispute.

A similar exclusion is contained in the Family Courts Act, 1984, which creates specialized Courts for the resolution of family disputes. Section 13 only allows lawyers to appear before family courts, where leave of the court has been applied for and granted by the court. The proviso to Section 13 empowers the Family Court to appoint a lawyer as amicus curiae, where the court considers such an appointment as being necessary. Provisions of the Family Court Act, including Section 13, were the subject of an unsuccessful constitutional challenge before the Andhra Pradesh High Court in R. Durga Prasad v. Union of India. Section 13, was justified on the grounds that the bar on lawyers appearing in family disputes was not absolute, and where leave of the court was applied for and granted, lawyers could plead the case of their clients, and thereby assist in the resolution of the dispute. A subsequent decision of the Kerala High Court in C.P. Saji v. Union of India, observes that the exclusion in Section 13 has now become “redundant” in view of the recent notification of Section 30.

A more recent instance of exclusion of lawyers can be found in the Prevention of Sexual Harassment at Workplace Act. Rule 7(6) notified pursuant to Section 11, prohibits any party to a sexual harassment complaint to be assisted by a lawyer before the Internal Complaints Commission. This prohibition mirrors the exclusion of lawyers from attending and assisting in internal departmental enquires. It bears noting however, that the exclusion contained in Rule 7(6) is characteristically different from the exclusions under the Industrial Disputes Act and Family Courts Act respectively. In the latter, the exclusion of lawyers operates within judicial fora hearing a legal dispute, while in the case of the former, the exclusion operates at the stage of the Internal Complaints Committee or Local Complaints Committee. These internal committees although vested with the power of civil court for the purposes of their efficient functioning, are not strictly speaking judicial fora.

Although the rationale for these exclusions vary in their context, they are seemingly justified on the premise that certain forms of lawyering can be detrimental to, and impede, the speedy resolution of sensitive legal disputes. These provisions therefore serve to exclude a key actor in the legal process, in the hope that their absence, or in some cases, permissive presence, would assist the court in resolving a claim bought by the person preferring such a legal action. It should therefore serve as a reminder of the kind of lawyering, lawyers sometime adopt while assisting their clients. Dilatory tactics, unfair representation and a host of other questionable practices, may serve the immediate needs of their clients, but seriously attack the efficacy of any dispute resolution process. These exclusions then, must form part of an important consideration while contemplating ethical and just means of advocacy, and alert lawyers to realities of their own exclusion.



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