ANALYSIS OF REPORT NO. 266 OF LAW COMMISSION OF INDIA
The author of this blog is Aadya Jaroliya, BA.LL.B. 4-th year student at Jagran Lakecity University.
INTRODUCTION
Saga
of Mahipal Singh Rana’s Case i.e, Mahipal Singh Rana vs. State of Uttar Pradesh
(AIR 2016 SC 3302)
Mahipal
Singh Rana vs State of UP case came into focus in the 266th law commission as
this case aroused a major issue of misconduct by a senior advocate not only
affecting the judge but also the Mwhole legal profession and judiciary. Facts
of the case illustrates that Advocate Mahipal Singh Rana who was enrolled as an
advocate in the UP-State Bar Council, during a hearing of the case, threatened a
presiding civil judge Shri Onkar Singh Yadav and literally challenged his
authority as a judicial officer and the authority of the court of law. He lost
his temperament when the said judgment was passed on order against him and hence,
threatened the Hon’ble Civil Judge stating that he will make sure that the
respective judge will no longer remain as a judge in the judiciary of Etah. He also
openly challenged the authority of the whole judiciary by disclosing the fact that
already 15-20 cases have been filed against him and thus, he is not afraid of
anyone! Such facts essentially construe as a case of serious professional
misconduct and thus such default on the part of advocate also directly lowers
the decorum of the judge, the dignity of the profession and adversely affects the functioning
of the judiciary. Such an incident did not happen for only once but again in
another case advocate Mahipal Singh Rana again showed such aggressive and
disrespectful attitude towards the sitting judge. Repeatedly, Mahipal Singh
hindered the court proceeding by his aggressive and hostile behaviors,
challenging the authority of the pressing judges and violating the basic
discipline of the judges of the profession. Aforestated facts and details
accounts of the alleged misconduct were included by the said Judge Shri Onkar
Singh Yadav in his compliant, being a witness himself he also represented
before the Hon’ble High Court, urging for a strict action against such
misconduct by an advocate is concerned.
In
the light of the above-stated facts, the question arises why the local UP state
bar council remained a silent spectator and allowed such an advocate to
continue to terrorize, browbeat and bully the judicial officers? It is
important to add here that under the Advocates Act,1961 section 6(c) commands
to every Bar Council itself having a primary authority to determine and dispose of all cases of misconduct against any advocates existing on its roll. Thus,
whenever any respective Bar Council fails to act or check the issues related to
the misconduct of Advocates on its role, they need to be made statutorily liable
for such grave substantive as well as procedural lapses. In its judgment the
local High court at Allahabad held the said advocate guilty and made the following observations;
"We thus punish him underSection12of the Contempt of Courts Act1971, with
two months ’imprisonment and also impose fine of Rs.2000/-on him. In case non-payment
offline he will undergo further a period of imprisonment of two weeks.
Verdict
Further,
the stubborn and habitually delinquent advocate Mahipal Singh filed as an
appeal challenging the authority of the local High Court. In its verdict, the
apex court upheld the conviction and the direction given by the Allahabad High
Court that the advocate shall not be permitted to appear in courts in District
Etah until he purges himself of contempt. The Court also held that under
Section 24A of the Advocates Act, the enrolment of the contemporary Advocate will
stand suspended for two years.[1] The Court also said that,
as a disciplinary measure for proved misconduct, the license of the contemnor
will remain suspended for further five years. The Court has however set aside
the imprisonment imposed on the Advocate keeping in mind his advanced age14.
Thus, this case stands as a glaring example of the existing professional
misconduct in the legal profession in India in recent times.
CHAPTER-
I
BACKGROUD[2]
The
dawn of the Legal Profession in our country could be seen in the Indian High Courts
Act, 1861 (commonly known as the Charter Act) which authorized the establishment of
the High Courts under the Letters Patent and those Letters Patent empowered the
High Courts to make rules for enrolment of Advocates and attorneys who were
also known as solicitors. In the early days three Acts, namely, the Legal
Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (17 of
1920) and the Indian Bar Councils Act, 1926 (38 of 1926) relating to legal
Practitioners were enacted.
CHAPTER-II
CONSTITUTIONAL
PERSPECTIVE
Our
judicial system is enshrined in the Constitution with powers to dispense
justice, including their constitution and jurisdictions, and with powers to
make their own rules. The Supreme Court has been described as a court of record
and conferred with all powers including the powers to punish for its contempt
under article 129 of the Constitution.
The power to frame rules, subject to the provisions of any law made by Parliament
and with the approval of the President, has been conferred on the Supreme Court
under article 145 of the Constitution.[3]
CHAPTER-III
JUDICIAL
PRONOUNCEMENTS
The
full bench judgment of the Jharkhand High Court in the case of KK Jha
“Kamal” & Anr. v. Pankaj Kumar & Anr[4], the full bench judgment
of the Allahabad High Court in the case of Sadhna Upadhyay v. State of U.P[5], and the recent judgment
of the Apex Court in the case of Mahipal Singh Rana v. State of UP[6], are pointers in relation
to professional misconduct of lawyers that ultimately resulted in a direction
by the Supreme Court asking the Law Commission of India to go into all relevant
aspects relating to the regulation of the legal profession in consultation with all
concerned at an early date.[7]
CHAPTER-IV
Law
Commission’s Initiative[8]
The Commission invited suggestions from all
stakeholders by putting on its website a notice dated 22nd July, 2016, as to
how the system could be improved. The
attention of the Bar Council of India was drawn to the said notice by writing a
letter on 3rd August, 2016.
Simultaneously, an email was sent to all the State Bar Councils, Supreme
Court Bar Association and Supreme Court Advocates on Record Association. On the same day, the Chairman addressed a
letter to the Chief Justices of all the High Courts, requesting them to use
their good offices to give wide publicity to the endeavor of the Commission
amongst the various associations of Advocates’ (in whatever name they exist),
with a request to send their response directly to the Commission by email at
the earliest.
CONCLUSION
Further,
in relation to a regulatory mechanism, it is necessary to address the mushrooming
of bar associations right from the Taluka level, up to the apex bodies also
requires a regulatory mechanism which includes their recognition and control by
the bar council. This is obviously
coupled with special emphasis of not only controlling the advocates but the
collective actions of bar associations that have a local and even a nationwide
implication on issues that are concerned with proceedings of the court and with
regard to the organization of lawyers entering into other fields of
activities. Towards this, the measures
of punishments, the inclusion of other types of misconducts and the disciplinary
control with its effective mechanism, both reformatory and deterrent, deserves
to be introduced. This has become
necessary as the present law is gradually losing its effectiveness due to lack
of appropriate empowerment. The
standards of professional ethics and behavior, the training of lawyers and
facets of continuing legal education are other areas as well that require a
passionate consideration.
ANNEXURE
1
Responses by Law Commission of India
Based
on the facts in the matter of Mahipal Singh Rana, the Apex Court highlighted
the dismal state of the regulatory mechanism governing lawyers with emphasis on
an urgent need to review the provisions of the Advocates Act dealing with the
regulatory mechanism for the legal profession and other incidental issues, in
consultation with all concerned.[9]
At the very inception, the general tenor of
the comments received to point out the lack of defined regulatory objectives and
principles in the Advocates Act itself. As the regulatory mechanism for legal
profession in India still abides by the principles of ‘self-regulation’, an overwhelming number of responses point out the failure of the existing
mechanism and hence have realized the need for urgent reform required. Regarding
specific provisions, a number of responses have been highlighted throwing light on the existence of
faulty/unsatisfactory definitions such as the definition of advocate (which
does not extend to the law firms, partnerships, body corporate etc.).
Additionally, the general tenor of the responses have highlighted that at
present, there exists no definition of professional or other misconduct which
has resulted in the arbitrary usage of Section 35 (Punishment of advocates for
misconduct).
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