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.
 

 

 

One comment

  1. Very informative piece. Closely related to exclusion of legal representation through counsel is the issue of `oral' hearing. Courts across common law jurisdictions seem to have adopted procedural rules giving judges the power to decide if a case ought to be heard orally or not. The level of discretion differs across jurisdictions, but the power is there. In the Indian context it seems that right to hearing is understood as right to 'oral' hearing. Wondering if you may have come across any Indian law/rule etc which limits oral hearing?

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