Wage Code Rules if Implemented -- Baby will be Washed Away with Bath Towel
By Thampan Thomas, Ex-M.P., Advocate.
09/09/2020
Wage Code Rules if Implemented --
Baby will be Washed Away with Bath Towel
(By Thampan Thomas, Former Member of Parliament, a Lawyer of Supreme Court,
National Secretary H.M.S., Advisor of Workers Group in ILO.)
The Wage Code is a part of proposed legislation to change the 41 Central Labour Laws in existence and to codify them into 4 Labour Codes namely The Code on Wages, The Code on Industrial Relation, Code on Social Security and Code on Safety. Out of which one code namely the Wage Code alone has been passed by the Parliament and given assent by the President. Now by the above notification and approval of the rules are in the process of implementation of Wage Code alone. This is not proper and is prejudicial to the interest of all concerned. As a part of the codification all the codes and its rules have to be adopted at one time, as it changes the approach, jurisprudence and aims and objectives of the fundamental nature of labour law. The thorough changes that have to be taken on one transaction with proper assessment of annulment of existing laws. Then only the right of the parties can be safe guarded in the light of judicial scrutiny, ILO Conventions, Parliament Debates and Legislations. Therefore, singling out one code alone and implementation of the same will have adverse effect on other codes and state laws.
The Labour Laws are on Concurrent List of the Constitution of India enabling Central and State to legislate on labour subject. On implementing the labour codes by the Central Government the federal nature of the Constitution will be subverted.
The proposed Rules and Code are ultra viresto the Constitution of India specifically on the question of socialism, equality and equity adopted in the preamble. As well as Article 14, 16, 19 in the Fundamental Rights, Article 39,42 in the Directive Principles and Article 309 and 311 of Part XIV of the Constitution of India.The arbitrary power for the Government to decide matters relating to wages of workers are negation of Multilateralism and Tripartism and Collective Bargaining.
Minimum wages are to be fixed basing on the constitutional commitment. Article 42 provides for wages basing on a living wage and decent standard of life and full enjoyment of leisure, social and cultural opportunities. Fixing up a minimum wage with a rider for floor wage will run against the constitutional directions. Though in the Chapter 2 Rule 3 in the Minimum Wages an endorsement is given referring to Workmen represented by Secretary v. Management of Reptakos Brett. And Co. Ltd. and Anr. (1992 (1) KLT OnLine 930 (SC) =
AIR 1992 SC 504) just opposite to that dictum is provided in the said rules. The dictum laid down in para 10,12, 13 and 14 of the judgment are not followed. It read as follows:
“The wage structure which approximately answers the above six components is nothing more than a minimum wage at subsistence level. The employees are entitled to the minimum wage at all times and under all circumstances. An employer who cannot pay the minimum wage has no right to engage labour and no justification to run the industry.
A living wage has been promised to the workers under the constitution. A ‘socialist’ framework to enable the working people a decent standard of life, has further been promised by the 42nd Amendment. The workers are hopefully looking forward to achieve the said ideal. The promises are pilling-up but the day of fulfilment is nowhere in sight. Industrial wage looking as a whole-has not yet risen higher than the level of minimum wage.”
The amendment in the Minimum Wages Act and putting in the Code and Rules as Chapter 3 is only annulling the present provisions. Of course it has annulled the schedule industry so as to make it universal. Yet it not made clear where it is applicable and how it implemented for unorganised worker in agricultural sector, domestic sector, forest workers and other daily waged contract employee. The implementation of hourly based wages, No Work No Pay and contract wages are permitted. All the safeguards of minimum wage or decent wage will be given a go by. When framing the wage code and its rules the decent work agenda is to be taken into account and rules and regulations are to be formed with that aim not by giving absolute powers to the employer to enter into contract with wage earners and exploit them.
The determination of minimum wages crucially depends on calorie requirement. The expenses on non-food essentials like education and healthcare are on the higher side. The rules are not taking care of the children and aged people. The dependent parents ought to have been considered in fixing minimum wage.
The proposed technical committee for categorization is not necessary. This will cause time delay and will deny the right of skill upgradation attained by the workers. The revision of dearness allowance should be based on consumer price index. Fixation of 12 hours at a stretch will cause difficulty for the workers. It should 10 hours 30 minutes only.
The rules are giving away the powers of collective bargaining on wages. The Tripartite mechanism will come to an end. Arbitrary power to government and employers right to fix up wages on hourly basis or on contract will take away the right of getting decent livelihood and improvement in the living condition of the workers. While abolishing the present Minimum Wages Act better provisions have to be there in the wage code and its rules enabling the workers to get their right as guaranteed. It is the accepted principle the wages that are been received shall by no way be reduced for worker.
The definition of wages does not include the actual payments which worker gets at present including that of deferred wages. The calculation of wages deleting other statutory payments and making it 50% will not make it sufficient to increase the wages in tune with the requirements of the worker and wages related to the price and production cost. India is one of the lowest wage paid countries in the world. Removing items from the wage component is not for the betterment of the workers but enables to fix a wage far below to living wages. The definition and approach to wages should be in accordance with the Hon’ble Supreme Court decision in State of Punjab v. Jagjit Singh (2016 (4) KLT SN 62 (C.No.72) (SC) as decided on 26th October 2016 and all other connected cases.
The worker and the employee two definitions given has to be put as one in the matter of Wage Code in the light of the decision of the Hon’ble Supreme Court in Bangalore Water Supplycase reported in (1978 KLT OnLine 1020 (SC) = AIR1978 SC 548) where it is held that
only persons who are having authority to appoint and dismiss like that of a Managing Director or the top personels alone can be differentiated from the worker. Therefore the two definitions given for worker and employee are to be changed.
Fixation of floor wage may become contrary to Minimum Wages Act and National Minimum Wages etc. The concept of floor wage will go against the guarantees given under the Minimum Wages Act and other protections by various statutes in existence. The consultation of an advisory committee will go against the factual positions. The period fixing for monthly wages should include 30 days of daily wage or hourly wage so as to enable the workers to get the right of paid weekly off.
The bonus paid customary or on production basis shall not be denied. Workers should be given opportunity to get higher bonus than that of maximum in case the employer can afford by way of settlements. The balance sheet should be capable for examination by the worker or workers association.
The constitution of Central Advisory Board provided in Chapter 6 is giving arbitrary powers to the Board. The Constitution is imbalanced. There is no proper representation for the workers. The Government being an employer of workers representatives of Government will have to be considered as representative of employers. The representation of the workers should be increased.
Clause 29 is annulling the constitution of a wage board for the working journalist and newspaper employees which is covered by Act 45 of 1955. The overlapping powers of the advisory board will take away the right of a wage board constituted under statutory provisions which is deciding the service conditions of the working journalist and other employees avoiding a strike or other forms of collective bargaining through properly constituted machinery. This is a power which is far in excess.
No heed is paid to Equal Remuneration Act in existence though it is abolished. There is no any provision to restore the right of equal remuneration. It is not explained in the code what will be the protection for equality and equity. It is the right of a worker to get equal wages for equal work which is guaranteed under Article 14 and 16 of the Constitution of India. The definition of contract and contract labour enables for further discrimination and providing opportunity for different pay for the same work.
The provisions provided in Chapter 7 are taking away the jurisdiction of labour courts and industrial tribunals in deciding claim petitions under S.33(c)(2). The rules in Chapter 8
give an opportunity to escape scrutiny of records by self certification. There should be safeguards to get true accounts and statements from the employers to the satisfaction of all concerned.
The miscellaneous provisions contained in Clause 57 and 58 of Chapter 9 of the rules are beyond its jurisdiction. The technical committee mentioned therein cannot be constituted disregarding the provisions of Working Journalist Act. By making the above rules the Acts in existence can never be repealed or denuded. It is beyond the competence of rule making authority and therefore lacks total jurisdiction.
It is the well established law that the principal employer is responsible for the contractor for any violation of the provisions of the labour law that shall not be diluted in any manner.
If the wage code alone is implemented by enacting the rules mentioned above and if the other codes are not enacted many of the provisions of this rules will encroach on the right of other codes yet to be passed. This is an illegal action and is capable of judicial interference.
Inspection and implementation of labour rights by Welfare Officers, Enforcement Officers are given a go by and self certification are provided. The Inspector Raj is a myth and the appointment of facilitator instead of inspection coupled with self certification will end in denial of labour rights.
The Multilateralism - Tripartism is changed to authoritarianism and arbitrariness for fixing wages. The State power which is imposed may be challenged before the Constitutional court under Article 226 of the Constitution instead of conciliation, mediation and adjudication.
The rule making authority has not considered the impact of recommendations of first national labour commissions under the leadership of eminent Judge Justice Gajendra Gadkar and also the various recommendations and decisions made by the Indian Labour Conferences.
The ILO Conventions ratified by Governments as like that of 81 with regard to inspection and other International covenants to which the Government of India is a party such as Global Job Pact, Decent Work Agenda and Millennium Goal etc., are also not taken into account while enacting these rules. The Core Conventions 87 and 98 of ILO are also violated by taking away collective bargaining right of the workers.
The poor state of affairs and lowest pay given to the workers of India had occasion to be discussed in the Standard Setting Committee of ILO. If the Act and Rules in the present nature is implemented that will result in international criticism of denial of workers right. Already such serious criticisms are raised in the International Forums.
If the wage code is implemented it will bring a new system introducing the theory of Master and Servant relationship, Divine Right Theory and Hire and Fire. This will lead to the formation of in-equal society and the living conditions of working class will be deteriorated. An opportunity for unbridled exploitation of the workers will arise. The process of Codification and Legislation shall not end in a situation where baby washed away with bath towel.
By Bhagyalakshmi R., Asst. Professor, Dept. of Law, School of Legal Studies TN
08/09/2020
Indigenous People Participation in Investment Negotiation :
A Case for Mitigating Rising ITA Claims in Resource Extraction
(By Bhagyalakshmi R., Assistant Professor, Department of Law,
School of Legal Studies, Central University of Tamil Nadu)
Abstract
The era of post neo liberalism has been structurally identified as a crucial period in the global regime in view of the fact that it encompasses significant developments in the economic landscape through rampant policies for industrial growth, market efficiency and attracting adequate investments. The investment paradigm in the Asian sphere is also advancing its roots by attracting potential investments in the domestic as well as International regime through bilateral or multilateral investment treaties. The investments channelled through the treaties are majorly used in resource extraction by contracting out essential utilities which may even extend to the lands inhabited by tribal population. There are specific instances of blatant violations of individual and collective rights of tribal people by expropriating their lands for facilitating resource extraction through forcible displacement without obtaining their free or informed consent. This runs in conflict with the International norms governing the protection of rights of tribal population which is inclusive of United Nations Declaration on the Rights of Indigenous People (UNDRIP), 2007 and International Labour Organisation Convention concerning Indigenous and Tribal Peoples, 1989. The State as guardian of the rights in such instances is equally tied by the obligations envisaged under the Investment treaties as the host State in an investment treaty is bound by obligations to ensure investment protection to the foreign investors in observance of fair and equitable treatment. However, at the same time the investment treaties, by and large are devoid of any provisions for protection of indigenous or tribal population rights and the specific enforcement of the treaty through Investment Treaty Arbitration eventually leads to exclusion of the merits of tribal people rights. The leading examples from the Asian Regime can be the Ras Al Khaimah Investment Authority (RAKIA) Investment Treaty Arbitration Claim against India as well as the Vedanta case. The United Nations Report of the Special Rapporteur on the Rights of Indigenous People, 2016 has highlighted the issues surrounding the conflict scenario and specifically enlisted the long term challenges of the host State. Hence the paper analyses and explores the idea of conjoining the host State’s obligation under Investment treaties and the Indigenous people’s rights, the International norms which are running parallel to each other. The study intends to map the possible inclusion of tribal rights protection provision in the Investment treaties and devising domestic legislation to enhance the development activities without any exclusion of rights of the indigenous inhabitants in the Asian Regime with a critical focus on India.
Keywords: UNDRIP, Investment Treaty, Resource Extraction, Tribal Rights, Investment Treaty Arbitration
I. RIGHTS AND OBLIGATIONS: AN INVERSE PARADOX IN INVESTMENT LAW AND
TRIBAL RIGHTS JURISPRUDENCE
The economic landscape of India has undergone significant changes post neo liberalism. The advent of liberalisation policies in 1990s has resulted in industrial growth by envisaging greater practise of liberalising the licensing procedure, market efficiency and external sector gaining potential investments from the global regime as foreign capital and other resources1. The investments in the regime are facilitated through bilateral, multilateral and free trade agreements (FTA), whereby treaty based protection are extended to investors of both the countries2. The common characteristic of the BIT is its functional regime of providing specific rights. India since its first Bilateral Investment Treaty (BIT) with UK in 1994 has successfully entered into more than 80 BITs3. The BIT relation of India in the initial years was specifically a primary engagement with European regime (Netherlands, Denmark, France, Germany, Poland, Switzerland, Belgium, Sweden and Italy). Later it has been extended to developing and least developed economies as well. The interesting point to note is that the larger engaging of BITs is due to the potential benefits it carries along. The specific chapter on investment protection in the bilateral investment treaty framework provides for fair and equitable treatment clauses to enhance full protection for investment and security.
The clauses encompassed in BITs are by and large designed to promote investment inflows, management skills and technology transfer4. However the larger internalising of Investment treaties is not always a pro revelation since the investment on land and resource extraction has long standing negative impact on human rights of the people inhabiting such lands, specifically the tribal population.
The blatant violations of human rights of the indigenous and tribal population in the context of Investment treaties are largely reflected in the global as well as Indian regime. The global outlook gives compelling truth of derogations of obligations along with violation of rights. For example, the investment dispute of Ecuador pertaining to the failure of State’s obligation to provide full protection and security to the Oil and Gas Company on ground of protest by indigenous people dragged the issue to Inter American Commission on Human Rights as well as the Inter American Court of Human Rights. The Court opined that the State’s failure in obtaining free, prior and informed consent of the indigenous people in the matter has put their rights at stake5. Similar instance can be noted in Bear Creek Mining Corporation v. Peru6, wherein there was violation of FTA between Peru and Canada due to indigenous people’s resistance for mining concession in their land and led to the withdrawal of operations. The Indian regime has equally undergone derogations of obligations. The prime example would be the Investment Treaty Arbitration (ITA) claim against India raised by the Ras Al Khaimah Investment Authority (RAKIA). The proceedings were initiated on the grounds of State’s failure to observe the obligations undertaken in the treaty due to resistance of tribal inhabitants in the land.
The instances of conflicting rights and obligations, forms a growing concern in the International law since these rights as well as the obligations are accorded protection through customary as well as treaty law in the international realm. Hence the paper analyses and explores the idea of conjoining the host State’s obligation under Investment treaties and the Indigenous people’s rights, the International norms which are running parallel to each other. The study also intends to map the possible inclusion of tribal rights protection provision in the Investment treaties and devising as well as revisiting domestic legislation to enhance the development activities without any exclusion of rights of the indigenous inhabitants in the Indian Regime. The first part of the paper tries to analyse the rights accorded to tribal inhabitants in the domestic regime of India through legislations as well as the International recognition of such rights. The second part is extensively engages with the regime of Investment treaties and its conflict with the tribal rights by evaluating the Investment treaties in the lights of tribal rights jurisprudence. The third part of the paper throws light on the case study of RAKIA ITA claim against India and the challenges it poses on the Indian Human Rights conundrum along with a critical reflection on the Vedanta case. The final part of the paper is an intensive effort to conjoin the parallel international norms to possibly avoid the conflicting scenario.
II. TRIBAL RIGHTS: GLOBAL AND INDIAN PERSPECTIVE
The theoretical analysis of tribal law through juristic lens reveals the distinct characteristics it holds. The classic context of human rights realm revolves around individual rights as the prime focus, whereas the tribal law lays emphasis on group life and communal living. The anthropological studies reveal that the tribal people are closely knit communities who pay homage to the past and can be accounted as a single social unit. These factors contribute to the recognition of tribal law as the law which regulates the individual and collective (community) rights. The hitherto individual rights are pre organised to be construed as the right which one possess and can be wielded on one’s own behalf whereas the collective right in contrast can be wielded non-individually through consensus or representations7. Though there is emerging confusions on demarcating the lines of individual and collective rights in its context8, the collective land rights are predominantly recognised in the tribal rights jurisprudence. The rights in its collective form are symbolising the objective of conferring self governance and autonomy through representation obtained through tribal consensus. The embodiment of these individual and collective rights in international agreements and domestic legislations holds relevance in the event of alleged violations. Hence this session essentially deals with the analysis of Global and Indian perspective on tribal law.
A. Recognition of Tribal Rights in the Global Regime
The statistics in the global regime reveals that five percentage of the world population is tribal inhabitants and 370 million indigenous inhabitants are recognised so far. They are squarely represented as forming fifteen percentage of the extremely poor and interestingly sixty five percentage of the land is under indigenous customary ownership9. The statistics reveal the undisputed existence of tribal inhabitants as a considerably relevant population. The human rights framework inherently encompasses protection and promotion of tribal people’s rights through specialised agencies as well as International instruments10. The specialised agencies or institutions are fundamentally engaged in protection and promotion of indigenous people’s rights and also envisages representation of their interests as well as situations at the international level. The major examples would be Permanent Forum on Indigenous Issues, Special Rapporteur on Indigenous Rights constituted under United Nations Framework. Apart from these institutions, there are various International instruments adopted for the development as well as protection on Indigenous People’s rights.
The development of specialised instruments in the International regime can be first traced back to the International Labour Organisation Convention Concerning Indigenous and Tribal People in Independent Countries of 198911. Currently, the number of State’s ratification and accession to the Convention is limited to twenty two in number. However, the Convention has gained the status of Customary International Law, since the States which has not even ratified the Convention is still referring to its provisions on issues related to tribal rights12. The provisions of the Convention specifically enforce the State’s to recognise the cultural and spiritual relationship of tribal people with the land they either occupy or use13. Further, Article 14 of the Convention also states the duty of the State to recognise the rights of ownership as well as possession of the indigenous people over their traditionally occupied land. Thus the Convention specifically accounts for protection of tribal land rights.
Added to this, a widely acclaimed special instrument for tribal rights protection under the United Nations Framework came into existence in 2007 which is prominently known as United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The declaration has been the result of General Assembly Resolution in the United Nations14. Despite the General Assembly Resolution being non binding, the declaration has firm grounding by its acceptance by majority of the nations and thereby gaining the status of Customary International Law15. The preamble of the UNDRIP specifically states that the rights of the Indigenous People with respect to their traditional homage (social structures, culture, political and economical system, traditions) has to be respected and promoted. This in context encompasses the indigenous people’s right to their resources, land and territory. The UNDRIP provision under Article 25 strengthens this vision and states that the inherent rights of the indigenous people with respect to their traditionally owned or used or occupied land has to be maintained and strengthened. Hence the UNDRIP provision is more clear in its context in comparison with the Article 13 of ILO Convention, 1989. UNDRIP envisages a generalisation clause which is even substantiated by its own Article which runs as:
“Indigenous people have the right to own, use, develop and control the lands, territories and resources they possess by reason of traditional ownership or other traditional occupation or use.”16
Apart from these specialised instruments, there are general human rights norms envisaged under International Covenant on Civil and Political Rights, (ICCPR) 1966, International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 and International Convention on Elimination of All Forms of Racial Discrimination (ICERD) 1966 which equally advocates for human rights of indigenous people. Similarly there are Regional agreement like African Charter on Human and People’s Rights, 1981 and American Convention on Human Rights which stands for human rights protection of Indigenous people.
B. Tribal Rights In India
The tribal population in India accounts for about 8.2 percentage of the total population17. The major tribal settlement in India is in the North-Eastern States as well as in the central and Southern regions18. India has extended its commitment to tribal rights protection in International sphere by its vote in favour of UNDRIP, 2007, however the State is not party to ILO Convention 198919. The idea of protecting the rights of indigenous people were primarily a specific concern and significant legislative and policy framework were developed in due course. The domestic landscape of tribal rights in India, firstly, draws our attention to fundamental law of the land, The Constitution of India, 1950. The indigenous people are primarily mapped within the administrative term Scheduled Tribes20. The Constitutional provisions and its applicability in matters concerning Scheduled Tribes can be extensively counted to 209 in number along with two Schedules21. The Part X of the Constitution under Article 244 and 244A deals with the administration of Schedule and tribal areas in accordance with Schedule V and VI. The power is extended to Governor of the State to make regulations governing Schedule and tribal areas. The Schedules draw its distinction on lines of governing jurisdictional areas. The fifth Schedule is inclusive of administration of Schedule Area in the peninsular region, towards the exclusion of north eastern States which are covered under sixth Schedule. Moreover fifth Schedule in the initial inception was administrated by provincial Governors with little authority for self governance whereas the sixth Schedule has given leverage for more autonomy through elected council for tribal people. The autonomy for self governance was decisive on factors viz. Ability to manage its own affairs and presence of non tribal population (which may directly or indirectly leads to subjugation of tribal inhabitants)22. Apart from this there has been adoption of various statutes internalising the Constitutional mandate governing tribal area.
Firstly, The Panchayat (Extension to the Schedule Areas) Act, 1966 has been adopted which pave way for decentralisation of tribal governance by extending the Part IX of the Constitution to the Schedule areas. The Act invigorated the ideal of setting up institutional self governance through democratic elections as contained in Part IX of the Constitution. It is functionally evident that the Act was devised in a manner to protect and safeguard the age old customs, cultural identity and resources of tribal inhabitants. The Act provides that before the initiation of acquisition of land for development projects or resettlement of inhabitants affected by such projects, there has to be consultation with the local bodies elected by the communities. The Act has been regarded a progressive development in favour of tribal rights, preservation of tribal culture and management of community resources23.
In the similar context, yet another legislation was enacted in 2006, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, which provides for measures related to ownership in forest land for the forest dwelling Scheduled tribes (STs) and Other Traditional Forest Dwellers(OFTDs). The individual States and Union Territories are vested with the implementation of the Act and the eviction of the STs and OFTDs from their respective land of occupation has to be made only after completion of administrative procedures governing recognition and verification in due course.
Though there are significant legal measures in the International and domestic regime for tribal rights and their protection, still on grounds of Investment treaties, resource extraction and development projects, there are crucial bypasses to the existing legal conundrum and blatant violations of rights which raises greater concern. The next part of the paper is dealing with the Investment Law paradigm and the bypasses on tribal rights.
III. INVESTMENT TREATIES AND TRIBAL RIGHTS : CONFLICTING REGIMES
The Indian advancement in Bilateral Investment Treaties (BITs) is considerably significant and biggest amongst developing economies24. BITs are enshrined to be the treaties made by countries for protecting investments made by investors of both the countries25. The economic liberalisation has boosted the country to enter into BITs and the primary objective was to attract potential foreign investments. The Model BITs was enunciated by India to allure the world by exhibiting the fact that the country offers treaty based protection both substantially and procedurally26. India has revised its Model BIT in 2015 on lieu of larger investment claims against the country and terminated a substantial number of its BITs. The key feature of the Investment Treaty of India is the incorporation of the clauses for Fair and Equitable Treatment (FET) as well as Full Protection and Security.
The fair and equitable treatment is largely a fluid concept and the interpretations vary from treaties to treaties27. Perhaps the clarity of the clause effectuates the host State to undertake obligations imparting active measures to protect the investment which may stem from private parties or action of host State or its organs28. The FET can be construed to be envisaging minimum standards of treatment under customary International Law which has to be taken into consideration by the host State. These necessarily advocates for predictable legal environment regulating investment which is the legitimate expectation of the investor. Over the period, the FET has been devolved to include (i) legitimate expectation of the investors (ii) transparency and stability (hi) non denial of justice and (iv) Prohibition of Coercion and harassment29. The BIT also encompasses Full protection and Security clauses. The Model BIT of India, 2015 advocates for full protection and security30. The clause inherently provides protection to the physical security of the investor’s assets. The rising investments disputes have put pleadings before the arbitrators and tribunal to construe the appropriate interpretation of full protection and security clause as a broader term or customary international norm or any other independent standard. However, the tribunal is decisive of the fact that the clause does not impose absolute liability on the State and only requires mere due diligence31.
It is undisputable that the FET clauses reinforces obligation on the host States which is equally tied by obligations for protecting the tribal rights. The functional similarity in both the regime is regarding the concept of right to protect the investor or the tribal inhabitant. The development projects are inherently tied with the resource extraction process on land that results in depriving the tribal people of their lands. The United Nations Report of the Special Rapporteur on the Rights of Indigenous People, 2016 has highlighted the issues surrounding the conflict scenario and specifically enlisted the long term challenges of the host State. The ILO Convention, 1989 under Article 16 stipulates that the eviction and resultant relocation of the indigenous people should be on exceptional circumstances and also specifically accompanied by their free or informed consent. The UNDRIP also advocates for the same and ensures that there is free, prior or informed consent32. The provision also envisages substantiation by agreement for just and fair compensation where return of tribal land is not possible. The leading cases in the International regime also evidence the same. In Mary and Carrie Dann v. United States33, the Inter American Court of Human Rights observed that aboriginal land rights could only be extinguished with free and informed consent. Similarly the African Commission on Human and People’s Rights (ACHPR) has stepped a foot further and states the eviction of the Indigenous people cannot be justified on the ground of general interest of the community or public need34.
The leading tribal rights jurisprudence in the Indian regime also reinforces the importance of tribal rights on land. The decision of Samatha v State of Andhra Pradesh and Ors.35ruled in favour of tribal inhabitants and held that forest and tribal lands in the Schedule cannot be leased out to non tribal inhabitants or private industries. The precedent has been bypassed in light of the Land Acquisition Act which gave leverage to the Government for acquiring land for development needs. Consequently land acquisition disputes has pitched in and the Supreme Court of India decided that the government is the best judge to determine if a public purpose is served by an acquisition36 and eased out the government from the obligation of looking into any other legislation for determining the propriety of their action37. The decision enlarges the discretion of government in acquiring land and eases the burden of government in acquiring lands of even tribal inhabitants in derogation of PESA and fifth Schedule of the Constitution. Hence these bypasses have significant impact on tribal rights and protection in lieu of economic development. The next session presents two such instances of blatant tribal right violations through the rough shade of investment treaties.
IV. VIOLATIONS IN CONTEXT: RAKIA INVESTMENT TREATY ARBITRATION CLAIM AND VEDANTA CASE
There is rising investment claims against the country on grounds of investment protection. The tribal protest against investment treaties and resource extraction has led to the non fulfilment of the contractual obligations and the investor resorting to claim for investment protection through arbitrations. Consequently the State has been criticised for giving primacy for economic advancement at the cost of the rights of indigenous people. The remarkable examples of violations of host States’ obligation to provide investment protection as well as protection of tribal rights in the Indian regime can be the RAKIA Investment Treaty Arbitration Claim and Vedanta Case.
A. RAKIA Investment Treaty Arbitration Claim
In 2007, the Andhra Pradesh Mineral Development Corporation under the State of Andhra Pradesh has entered into a Memorandum of Understanding (MoU) with the Ras Al-Khaimah Investment Authority (RAKIA), Government of Ras Al-Khaimah for the construction of an alumina refinery and thereby bauxite mining across 1,612 hectare of forest land (Jerrela block of Chintapalli Reserve Forest) and undertaking supply of 224 million tonnes of bauxite38. According to the MoU, the Andhra Pradesh Mineral Development Corporation was obliged to supply bauxite to ANRAK Aluminium (a joint venture formed by RAKIA holding 70% of the share and India’s Pennar group holding 30% of the share)39. However the rising environmental activism and tribal protest has stressed the project and the State could not fulfil the contractual obligations and the deal was structured in a way without any potential benefits to the tribal people. Consequently RAKIA has initiated Investment Treaty Arbitration claim against India on grounds of failure of providing investment protection under the Bilateral Investment treaty between India and UAE. The Claim raised by RAKIA accounts for about US$ 44.71 million. The matter is still pending and awaits decision. The case is significantly a backlash to the investment commitments as well tribal rights protection in India.
B. Vedanta Case
The case pertains to a project undertaken by the Odisha Mining Corporation and Vedanta Industries for mining bauxite, the raw material for producing aluminium, from the Niyamgiri Hills for the Vedanta Aluminium Refinery in Lanjgarh40. The inherent concern in lieu of environmental harm and disturbance of tribal life (Dongria Kondh Tribals) whose culture, beliefs and existences are deeply entrenched in Niyamgiri hills41 led to protest against the operation of the project. The matter was raised to the Supreme Court of India and the Court decided that the diversion of forest land for development project has to be accorded only with the consensus of local bodies (Gram Sabha) elected by the communities as per the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 200642. The Court observed that there was no such active consultation with the Gram Sabha on the matter and the issues were raised as individual and community claims. Hence the honourable Court has directed the State to obtain the Gram Sabha resolution on the matter which is decisive in granting clearance of project by the respondent and Vedanta Industries to envisage a new proposal for the project. The decision is a remarkable precedent in favour of tribal rights however the Court has not given substantial importance to the Central Empowered Committees Report43 which states that the mining operation is disastrous to Niyamgiri Tribals. Unfortunately the decision only demanded for a temporary suspension of the project. Added to this, The Odisha Mining Corporation in 2016, has filed an Interlocutory Application before the Supreme Court to review the 2013 Judgment on grounds stating that (the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and its rules does not mandate the requirement of obtaining Gram Sabha consent on matters pertaining to use of forest land, if the State Government deems fit that the rights of the tribal people has been settled and the practise of stoppage of mining cannot be perpetually in force44. The matter has been posted for three Judge Bench for hearing and is still sub judice.
The two Case Studies inherently pose probative questions over the implementation of the domestic and International Norms on protection of Tribal rights. Similarly the State’s obligation in lieu of Investment Treaties is also on derogation due to the lack of meaningful consultation before initiation of development projects in tribal land. The coexistence of rights and obligations deduced from tribal law and investment treaties are achievable through a functional incorporation of the tribal rights protection in the investment treaties. The next session is entailing a discussion over the scope of such a possibility
V. CONCLUSIONS AND SUGGESTIONS
It is quite undisputable that the nation’s advancement encompasses a twin regime. On one side, there is a rising need to steer economic development. The possible interventions could be attracting adequate foreign and domestic investment by regulating market and fostering competition. At the other side, the commitments for protecting human rights have to be strengthened. Over the years, the concept of development is squarely delimited to the extent of economic development and there is a substantial neglect of overall societal development which essentially encompasses human rights framework. The economic development which the State intends to achieve through resource management and extraction should not stunt the development rights of tribal inhabitants. The mitigation of rising conflict of tribal protection and host State’s obligation is only possible through the convergence of parallel international norms.
The inclusion of indigenous people’s provision in the investment treaties is beneficial on account of various reasons. It enhances the scope for more opportunities in the trade front for cross border transactions. Similarly meaningful consultation with the indigenous people during negotiation of investment treaties eases the tension of obtaining their consent for resource extraction. The added benefit in such instances is that the investors are assured of economic certainty and thus potentially leads to the attraction of more investors in the process. The leading example is Canada’s negotiating priority of including a specific chapter for the Indigenous people in the North American Free Trade Agreement (NAFTA). The Canadian Free Trade Agreements in its provisions has specifically enlisted a number of exceptions and reservations for aboriginal people which is predominantly known as ‘Carve Outs’. The intended objective was to protect the rights and prioritise trade that benefits aboriginal people. Similarly Canada has proposed sectoral reservation prioritising the rights and preferences of aboriginal people over the investor rights. Hence the Canadian practise can be adopted as a successful template for investment negotiations for Treaties protecting the rights of indigenous people. The probable suggestions for convergence of both the investment regime and protection of tribal rights are summarised as follows:
• The BITs should specifically incorporate provisions for tribal rights protections. Even the Model Bilateral Investment Treaty of 2015 lacks any specific
provision for tribal rights. The useful template for the purpose can be the practise of Canada.
• The negotiations of bilateral investment treaties should be in consultation with the tribal inhabitants, if at all, their lands are involved in the investment
regime as undertaken in Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006.
• There has to be measures developed for reaffirming clarity in the domestic
legal regime for tribal rights protection, since the legislative provisions of various
Statutes may conflict.
Foot Note:
1. Atul Kohli, “Politics of Economic Growth in India 1980-2005 Part II: The 1990s and Beyond” (2006), Economic And Political Weekly at 1361 See also OECD Background Paper, “Opportunities and Challenges for Investment in India” (2004) at 5.
2. For a general discussion see R DOLZER AND C SHREUER, PRINCIPLES OF INTERNATIONAL INVESTMENT LAW, (Oxford University Press, 2008).
3. Department of Economic Affairs, India, (1st February 2019) online: < https://dea.gov.in>
4. Supra Note 2.
5. Burlington Resources Inc. v. Republic of Ecuador (2010) ICSID Case No. ARB/08/5 See also Sarayaku v Ecuador, Inter American Court of Human Rights (2012).
6. ICSID Case No. ARB/14/21.
7. Allen Buchanan, “Role of Collective Rights in the Theory of Indigenous Peoples Rights” (1993) 3 Transnational Law and Contemporary Problems at 93.
8. Ibid at 91.
9. Indigenous Peoples Overview, World Bank Report (24th September,2018) online:
< www.worldbank.org> (accessed on 3rd February 2019).
10. Katja Gocke, “Protection and Realisation of Indigenous People’s Land Rights at the National and International Level” (2013) 5(1) Goettingen Journal of International Law at 124.
11. Hereinafter “The International Labour Organisation Convention Concerning Indi-genous and Tribal People in Independent Countries of 1989” is referred to as “ILO Convention,1989.”
12. S.J.Anaya, “International Human Rights and Indigenous Peoples: The Move Towards Multicultural State” (2004) 21 Arizona Journal of International Law at 13.
13. Article 13 of the International Labour Organisation Convention Concerning Indigenous and Tribal People in Independent Countries, 1989.
14. GA Resolution 61/295 Annex, UN Doc A/RES/61/295.
15. M Barelli, “The Role of Soft Law in the International Legal System: The Case of the United Nations Declaration on the Rights of Indigenous People” (2009) 58(4) International and Comparative Law Quarterly at 957.
16. Article 26 of United Nations Declaration on the Rights of Indigenous Peoples, 2007.
17. Census of India, 2011, Ministry of Home Affairs, Government of India online: < https://censusindia.gov.in> (accessed on 8th February, 2019).
18. W.V. Grigson, ‘The Aborginal in the Future India”, (1944) 74 Journal of Royal Anthropological Institute of Great Britain and Ireland at 33.
19. Pushkar Anand and Amit Kumar Sinha, Protecting the Rights of Tribals, The Hindu
(27th February, 2017).
20. Fifth and Sixth Schedule, The Constitution of India, 1950.
21. C.R.Bijoy et al, “India and the Right of Indigenous Peoples Constitutional, Legislative and Administrative Provisions Concerning Indigenous and Tribal Peoples in India and their Relation to International Law on Indigenous Peoples”, Asia Indigenous Peoples Pact (AIPP) Foundation (2010).
22. Apoorv Kurup, “Tribal Law in India: How Decentralised Administration is Extinguishing Tribal Rights and Why Autonomous Tribal Governments are Better”, (2008) 7(1) Indigenous Law Journal at 88.
23. Ibid at 96.
24. Prakash Ranjan, “India and Bilateral Investment Treaties- A Changing Landscape”
(2014) 29(2) ICSID Review- Foreign Investment Law Journal (Oxford University Press) at 491.
25. Supra Note 2.
26. Supra Note 24 at 504.
27. Karen Mills, “Fair and Equitable Treatment in Investment Agreement”, 1stt Annual Forum of Developing Country Investment Negotiation (Singapore, October 2017).
28. Christopher Schreuer, “Full Protection and Security” (2010)1(2) Journal of International Dispute Settlement at 353.
29. Supra Note 2.
30. Article 3, Model Bilateral Investment Treaty of India, 2015.
31. Supra note 28 at 353.
32. Article 10, United Nations Declaration on the Rights of Indigenous Peoples, 2007.
33. IACHR Case 11.140, 27th December, 2002.
34. Centre for Minority Rights Development (Kenya) and Minority Rights Group on behalf of Endorois Welfare Council v. Kenya, ACHPR Communication No.276/2003,
4th February 2010
35. 1997 (2) KLT OnLine 1137 (SC) = AIR 1997 SC 3297.
36. Daulat Singh Surana v First Land Acquisition Collector ((2006) 11 SCALE 482).
37. Hukumdev Narain Yadav v. Lalit Narain Mishra ((1974) 2 SCC 133).
38. Special Correspondent, A.P.Cancels Bauxite Supply Deal With Anrak, The Hindu
(23rd December, 2015).
39. Ibid.
40. G.Seetharaman, ‘The Story of One of the Biggest Land Conflicts: No Mines Now, Is It All fine in Niyamgiri?”, The Economic Times,(18thApril, 2018).
41. Geetanjali Sohu, “Mining in Niyamgiri Hills and Tribal Rights” (2008) 43(15) Economic And Political Weekly at 19.
42. Orissa Mining Corporation v. Ministry of Environment & Forest &Ors. (2013 (2) KLT Suppl.53 (SC) = (2013) 6 SCR 881).
43. Central Empowered Committee Report in I.A. No.1324 Regarding the Alumina Refinery Plant being set up by M/s Vedanta Alumina Limited at Lanjigarh in Kalahandi District, Orissa (2005).
44. Zubair Nazeer and Rahul Chirmurkar, “Supreme Court Must Safeguard Tribal Rights Over Niyamgiri Hills in Odisha”, The Wire (March 2016) online: <https://thewire.in/government/supreme-court-must-safeguard-tribal-rights-over-niyamgiri-hills-in-odisha>
Crippling the Right to Silence of an Accused
By S.K. Premraj Menon, Advocate, High Court
21/08/2020Crippling the Right to Silence of an Accused
(By S.K.Premraj Menon, Advocate, High Court of Kerala)
a. The three Judges’ Bench of the Supreme Court of India in Prahlad v. State of Rajasthan (2018 SCC OnLine SC 2548) seems to have significantly watered down the right of silence of an accused. The said case was one concerning the rape and murder of an eight year old girl child. The accused was the last person seen with her while purchasing sweets for her from a shop, after which she went missing. Her corpse was discovered the next morning. The Trial Court convicted the accused for offences under Section 302 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012 and passed the sentence of capital punishment. This was confirmed by the High Court of Rajasthan in the reference and the appeals filed by the accused were dismissed. The Supreme Court reversed the conviction under Section 4 of the Protection of Children from Sexual Offences Act, 2012 particularly due to lack of reliable material, anyhow, sustaining the conviction for murder, setting aside the capital punishment and sentenced the accused for life imprisonment. Para 9 of this judgment gives an interesting reading, which runs :
No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.
b. It is imperative to have a fleeting glance of Section 313(3) of the Code of Criminal Procedure, 1973, which reads :
313. Power to examine the accused
(3) The accused shall not render himself liable to punishment by refusing to answer such question, or by giving false answers to them.
Section 313(3) of the Code of Criminal Procedure, 1973 corresponds to Section 342(2)
of the Code of Criminal Procedure, 1898 which read :
342. Power to examine the accused
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court and the jury, if any may draw such inference from such refusal or answers as it thinks just.
The last portion of Section 342(2) of the Code of Criminal Procedure, 1898, viz., but the Court and the jury, if any may draw such inference from such refusal or answers as it thinks iust were consciously omitted in Section 313(3) of the Code of Criminal Procedure, 1973, based on Article 20(3) of the Constitution of India, which reads :
20. Protection in respect of conviction for offences
(3)No person accused of any offence shall be compelled to be a witness against himself.
c. The doctrine of the right of silence of an accused traces its origin in England, as a protest to the inquisitorial methods of the ecclesiastical Courts and is based on the Latin maxim nemo tenetur se ipsum accusaremeaning that no man is bound to accuse himself. The very principle of immunity from self-incriminating evidence is based on the ‘presumption of innocence’ and so long as the presumption remains as one of the fundamental canons of criminal jurisprudence, evidence against the accused should come from sources other than the accused. In England, the principle was first incorporated in the Criminal Evidence Act, 1898, which provides that though the accused is a competent witness on his own behalf, he cannot be compelled to give evidence against himself and his failure to give evidence in defence cannot be commented upon. The principle of protection against compulsion of self-incrimination was adopted in the Fifth Amendment to the Constitution of the United States of America as well, which contains, more or less, the same language as in Article 20 (3)
of our Constitution. The protection is afforded not only to an accused on trial but to all persons giving testimony. As accused may voluntarily elect to give evidence but if he elects not to give evidence in defence, this fact cannot be considered to his prejudice. As far as India is concerned, we have adopted the principle of ‘presumption of innocence of the accused’ as one of the cardinal principles of our criminal jurisprudence. The burden is on the prosecution to prove that a person is guilty of the offence with which he is charged. The accused need not make an admission or statement against his will or volition. He may stand to see what case has been made out against him and he is entitled to rely on the failure of the prosecution to establish the charge conclusively and beyond all reasonable doubts. This ‘presumption of innocence’ gave birth to the rule of immunity from self-incriminating evidence which is embodied in Article 20(3) of the Constitution of India, which enshrines the doctrine against self-incrimination. It is designed to protect the accused from being compelled by hope or fear to admit facts or deny them. No compulsion, either physical or moral could be used to extort any self-incriminating statement from an accused. The doctrine against self-incrimination in Article 20(3) should be construed with due regard for the inter-relationship between rights, since this approach has been recognized in the seven Judges’ Bench decision in Maneka Gandhi v. Union of India & Anr. (1978 KLT OnLine 1001 (SC)
= (1978) 1 SCC 248) wherein it was held that Article 21 of our Constitution requires afair, just and equitable procedure to be followed in criminal cases. Article 21 of our Constitution grants fundamental right to life and liberty and reads :
21. Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.
The extended prominence of Articles 20(3) and 21 of our Constitution after Maneka Gandhi v. Union of India & Anr. (supra) could be comprehended from a cursory glance of Article 359, which reads:
359. Suspension of the enforcement of the rights conferred by Part III during emergencies
(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of such of the rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any Court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
Some of the aspects relating to right to silence came to be included in the Universal Declaration of Human Rights, 1948. Article 11.1 thereof reads :
11.1 Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
Article 9.1 of the International Covenant on Civil and Political Rights, 1966 to which Indiais a party reads :
9.1 Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
Articles 14.2 of the International Covenant on Civil and Political Rights, 1966 reads :
14.2 Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
Articles 14.3(g) of the International Covenant on Civil and Political Rights, 1966 reads :
14.3 In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality :
(g) Not to be compelled to testify against himself or to confess guilt.
The right to silence has various facets. One is that the burden is on the State or rather the prosecution to prove that the accused is guilty. Another is that an accused is presumed to be innocent till he is proved to be guilty. The third is the right of the accused against self-incrimination, namely, the right to be silent and that he cannot be compelled to incriminate himself. There are also exceptions to this rule. For instance, the accused can be compelled to submit to investigation by allowing his photographs taken, voice recorded, his blood sample tested, his hair or other bodily material used for DNA testing, etc.
d. The doctrine against self-incrimination and how far it is embodied in Article 20(3) was considered by an eight Judges’ Bench of the Supreme Court in M.P.Sharma & Ors. v. Satish Chandra, District Magistrate, Delhi & Ors. (1954 KLT OnLine 1013 (SC) =
AIR 1954 SC 300) where the question which directly arose was whether a search and seizure of a document from a person against whom a First Information Report was lodged with the police amounted to compelling him to be a witness against himself within the meaning of Article 20(3) of the Constitution. The Apex Court considered the historical background of the doctrine and repelled the narrow interpretation that the doctrine against
testimonial compulsion was confined to the oral evidence of a person standing his trial for an offence when called to the witness stand, observing that there is no reason to confine the content of the constitutional guarantee to such a barely literal import and to limit it, would be to rob the guarantee of its substantial purpose and to miss the substance for the sound. The phrase used in Article 20(3) of our Constitution is ‘to be a witness’. A person can ‘be a witness’ not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness or the like. ‘To be a witness’ is nothing more than ‘to furnish evidence’, and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. After observing that Section 139 of the Indian Evidence Act, 1872 was not a guide to the meaning of the word ‘witness’, which must be understood in its natural sense as referring to a person who furnishes evidence, the Apex Court proceeded to hold that every positive volitional act which furnishes evidence is testimony and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part and that there is no reason to think that the protection in respect of the evidence so produced is confined to what transpires at the trial in the Court room. The Court went on to state that the phrase used in
Article 20(3) is ‘to be a witness’ and not to ‘appear as a witness’, which follows that the protection afforded to an accused in so far as it is related to the phrase ‘to be a witness’ is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. It is thus available to a person against whom a formal accusation relating to the commission of an offence has been levelled, which in the normal course may result in prosecution. Later, having felt that some of the propositions of law laid down in M.P.Sharma & Ors. v. Satish Chandra, District Magistrate, Delhi & Ors. (supra) have been too widely stated, an eleven Judges’ of the Supreme Court considered the scope of Article 20(3) of the Constitution in State of Bombay v. Kathi Kalu Ogad (1961 KLT 74 (SC) = AIR 1961 SC 1808) and dealing with the interpretation of the words ‘to be a witness’ the Court observed that ‘to be a witness’ may be equivalent to ‘furnishing evidence’ in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for the purpose of identification. ‘To be a witness’ means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a Court or to a person holding an enquiry or investigation. A person is said ‘to be a witness’ to a certain state of facts which has to be determined by a Court or authority authorized to come to a decision, by testifying to what he has seen, or something he has heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matter in controversy. The Court held that the observation in M.P.Sharma & Ors. v. Satish Chandra, District Magistrate, Delhi & Ors. (supra) that Section 139 of the Indian Evidence Act, 1872 had
no bearing on the connotation of the word ‘witness’ was not entirely well founded in law and observed that it is well established that Article 20(3) is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in Court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a ‘personal testimony’. The giving of a ‘personal testimony’ must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impression or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression ‘to be a witness’. Dealing with the question of compelled testimony the Supreme Court observed that ‘compulsion’ in the context, must mean what in law is called ‘duress’. The compulsion in this sense is a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and therefore, extorted. The right to silence was later considered by a three Judges’ Bench of the Supreme Court in Nandini Satpati v. P.L.Dani & Anr.
(1978 KLT OnLine 1017 (SC) = (1978) 2 SCC 424),where the Supreme Court followed the earlier English laws and the landmark judgment of the American Supreme Court in Miranda v. Arizona (1966 (384) US 436) holding that the accused was entitled to keep his mouth
shut and not answer any questions if the questions were likely to expose him to guilt. This protection was available before the trial and during the trial. Regarding the exception to the
rule of silence of an accused in a criminal case, in Ritesh Sinha v. State of Uttar Pradesh &
Anr. (2019 (3) KLT 709 (SC) = (2019) 8 SCC 1),a three Judges’ Bench of the Apex Court answering a reference went on to hold that furnishing of voice samples of the accused would not infringe Article 20(3) of the Constitution. The Court even went on to fill the yawning gap in the statute, making temporary patchworks, effective and workable and to sub-serve societal interests, considering the contemporaneous realities/existing ground realities, call of justice and principle of imminent necessity, stepping forward and directing that until explicit provisions are engrafted in the Code of Criminal Procedure, 1973 by the Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime.
e. Coming back to the case of Prahlad v. State of Rajasthan (supra), the conviction was solely based on an adverse inference drawn by the Apex Court from the failure of the accused to provide explanation for the subsequent events, after he bought the sweets for the victim. Apart from the fact that the accused was the last person seen with the girl, the Court drew an adverse inference from the silence of the accused to convict him for murder. As held in Kanhaiya Lal v. State of Rajasthan (2014 (2) KLT Suppl.88 (SC) =
(2014) 4 SCC 715), the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be
something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of an accused, by itself cannot lead to proof of guilt against the
accused. A three Judges’ Bench of the Apex Court in Digamber Vaishnav & Anr. v. State of Chhattisgarh (2019 (1) KLT OnLine 3251 (SC) = AIR 2019 SC 1367) held that it is settled that the circumstance of last seen together cannot by itself form the basis of holding an accused guilty of the offence. In Navaneethakrishnan v. State by Inspector of Police (2019 (2) KLT OnLine 3143 (SC) = (2018) 16 SCC 161) it was held that despite, the last seen theory undoubtedly being an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty, that evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration. As held in Reena Hazarika v. State of Assam
(2018 (4) KLT OnLine 3088 (SC) = AIR 2018 SC 5361), mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Indian Evidence Act, 1872 unless the prosecution first establishes a prima faciecase. As far as the laws prevailing in India, there is no express provision which mandates an explanation from the accused. Moreover, Section 313(3) of the Code of Criminal Procedure, 1973 embodies the right to silence of the accused. It can be safely inferred from the non-administration of oath to the accused before his examination under Section 313 of the Code of Criminal Procedure, 1973 that he is not under any compulsion to answer any questions made under the said Section. Section 313 of the Code of Criminal Procedure, 1973, in spirit, acts as an aid to the accused to explain or rebut any incriminating evidence against him if he deems fit. The Section also provides that answers given by the accused may be taken into consideration by the Court. This makes it even more important that the accused must answer only when he is certain that his answer could not be used as evidence against him and further displays the significance of his right to silence. Courts have interpreted Section 313 of the Code of Criminal Procedure, 1973 in line with the legislative intent and have even strengthened the rights of the accused under this provision. They have clarified that the statement under Section 313 of the Code of Criminal Procedure, 1973 is not substantive evidence and is merely an aid for the Court to examine the evidence on record. It can neither be made the sole basis for conviction, nor can it be used to complete the missing links in the prosecution’s evidence. A three Judges’ bench of the Apex Court in Selvi & Ors. v. State of Karnataka (2010 (2) KLT OnLine 1101
(SC) = (2010) 7 SCC 263),went on to hold that not only does an accused person has the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his silence. At the trial stage, Section 313(3) of the Code of Criminal Procedure, 1973 places a crucial limitation on the power of the Court
to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. Further, Proviso (b) to Section 315(1) of the Code of Criminal Procedure, 1973 mandates that even though an accused person can be a competent witness for the defence, his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the trial. It is evident that Section 161(2) of the Code of Criminal Procedure, 1973 enables a person to choose silence in response to questioning by a police officer during the stage of investigation and as per the scheme of Section 313(3) and Proviso (b)
to Section 315(1) of the Code of Criminal Procedure, 1973, adverse inferences cannot be drawn on account of the accused person’s silence during the trial stage. The classic decision in Woolmington v. DPP (1935 AC 462) which held that the ‘right to silence’ is a principle of common law and it means that normally Courts or Tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court was also referred to. In Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan (2013 (2) KLT SN 133 (C.No.169) SC = AIR 2013 SC 3150), it was held that an adverse inference can be taken against the accused only, and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself. Further, Courts have also read in the ‘rule against adverse inferences’ and stated that no adverse inferences can be drawn from the silence of the accused in the examination under Section 313 of the Code of Criminal Procedure, 1973. This has in fact been considered conjunctively with Article 20(3) of the Constitution of India and is, hence, a facet of the fundamental right against self-incrimination. It is thus evident that if even the answers of accused cannot be used as evidence against him, it is inconceivable that the silence of the accused, when he is constitutionally and statutorily guaranteed that right, can be relied on to concoct a narrative that convicts him. A conjoint reading of Sections 161(2), 313(3) and 315 raise a presumption against guilt and in favour of innocence, grant a right to silence both at the stage of investigation and at the trial and also preclude any party or the Court from commenting upon the silence. The issue that crops up from Prahlad v. State of Rajasthan (supra) is that it sets a precedent for conviction on criminal charges based on adverse inferences drawn from the silence of the accused under Section 313 of the Code of Criminal Procedure, 1973.
f. It has to be adverted to the fact that the question of drawing adverse inferences against the accused from his silence while being questioned under Section 313 of the Code of Criminal Procedure, 1973 was dealt with by the Supreme Court on numerous occasions. True, the Courts have vacillated on this issue and there have been judgments both prohibiting and allowing for the same. Some of the judgments permit such inferencesto
be drawn by the Court. In Ramnaresh & Ors. v. State of Chattisgarh (2012 (2) KLT SN 34(C.No.32) SC = (2012) 4 SCC 257) it was held that the Court would be entitled to draw an inference, including adverse inference, as may be acceptable to it in accordance with law. Referring to the said decision, which was to be pronounced on the same day, the Apex Court in Brajendra Singh v. State of Madhya Pradesh (2012 (2) KLT SN 37 (C.No.34) SC = AIR 2012 SC 1552) held that even though the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 cannot be solely relied upon to convict him but where such a statement is in line with the case of the prosecution, then the heavy onus of providing adequate proof on the prosecution, is to some extent, reduced. In Munish Mubar v. State of Haryana (AIR 2013 SC 912) it was held that it is obligatory for the accused to furnish an explanation with respect to implicating circumstances associated with him, the failure of which could lead to adverse inferences being drawn from his silence. The decision in Prahlad v. State of Rajasthan (supra) however, impliedly holds that reliance on such an adverse inference can be placed even to the extent of convicting the accused.
g. Obviously, the object of the examination under Section 313 of the Code of Criminal Procedure, 1973 is to benefit the accused by providing him an opportunity to defend himself. He has the right to remain silent and the only way in which the provision can be used against the accused is if he has made a statement supporting the prosecution which the Court may then use as aid while appreciating the evidence. Anyhow, the Apex Court in Prahlad v. State of Rajasthan (supra) has abridged the right to remain silent and reversed the burden of proof apart from overlooking the important fact that the accused is not put on oath when he is subjected to inquiry under Section 313 of the Code of Criminal Procedure, 1973. Under Indian law, the accused has a right to silence and can remain silent through the entire process and furnish no evidence of his own. It is the duty of the prosecution to discharge the burden of proving that the accused is guilty beyond reasonable doubt. The prosecution must ‘stand or fall on its own legs and cannot derive any strength from the weakness of the defence’ as settled in the three Judges’ Bench decision in Sharad Birdhichand Sardar v. State of Maharashtra (1984 KLT SN 59 (C.No.101) SC =
(1984) 4 SCC 116).This is the scheme of Section 101 of the Indian Evidence Act, 1872. Mere silence cannot shift the onus upon the accused even under Section 106 of the Indian Evidence Act, 1872 unless the prosecution has first established a case against him. If not, the benefit of doubt must be given to the accused due to the presumption of innocence. By drawing adverse inference from the silence during the examination under Section 313 of the Code of Criminal Procedure, 1973, it decreases the scope of the right against self-incrimination and in effect, requires the accused to prove his innocence. One cannot lose sight of the fact that how advantageously an accused uses the opportunity afforded to him under Section 313 of the Code of Criminal Procedure, 1973 and what statements he makes to point out his innocence depends on whether he has access to an erudite lawyer. Given the large number of cases in which accused with poor means have to rely on disinterested legal aid lawyers, more often than not, they squander away this right, either remaining silent where they have a cogent alternative explanation for the evidence on record or by making incriminatory statements when they should have exercised this right to silence. It is then incumbent upon the Court to beneficially interpret Section 313 of the Code of Criminal Procedure, 1973 so that the accused is ensured a fair trial instead of using it as a tool to implicate the potentially innocent.
h. Unfortunately, numerous cases which have safeguarded the rights of the accused are rendered by smaller benches and could stand to have been impliedly overruled by Prahlad v. State of Rajasthan (supra). Even Selvi v. State of Karnataka (supra), also by a three Judges’ Bench, does not come to rescue, given the lack of judicial clarity vis-a-viswhich is to be considered as binding, when there are conflicting decisions rendered by co-equal benches.
i. The right to silence is a fundamental human right recognized across the globe. The jurisprudence with regard to drawing adverse inferences from the silence of the accused during questioning under Section 313 of the Code of Criminal Procedure, 1973 seems to be flawed. Firstly, the provision itself, in spirit, was inserted to aid the accused in providing explanation for incriminating circumstances. It only allows the Court to draw inferences from the answers provided by the accused not from his silence. It expressly precludes the administration of oath to the accused so that the accused is not under any fear of punishment while making his statements. As held in Sujit Biswas v. State of Assam
(2013 (2) KLT SN 154 (C.No.194) SC = AIR 2013 SC 3817), it is a settled legal proposition that in a criminal trial, the purpose of examining the accused person under Section 313 of the Code of Criminal Procedure, 1973 is to meet the requirement of the principles of natural justice, i.e., audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the Court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the Court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The said statement cannot be treated as evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 as the accused cannot be cross-examined with reference to such statement. Thus, it would be logically impermissible to draw adverse inference from the silence of the accused under Section 313 of the Code of Criminal Procedure, 1973 and convict him, solely relying on such inference. The practice of drawing an adverse inference from the silence of the accused, in exercise of his said right would amount to testimonial compulsion and contravenes Article 20(3). The legislative intent of the framers of the Code of Criminal Procedure, 1973 in dropping the previous provision allowing adverse inferences to be drawn from the refusal of the accused to answer a question under Section 313 of the Code of Criminal Procedure, 1973
ipso factodemonstrates the same line of thought. Silence can always be consistent with the
innocence. An accused might remain silent because of shock, confusion, embarrassment, a desire to protect another person or to avoid reprisals, or in order to conceal some other improper conduct of some other person or it may be his personal trait to generally be silent or he may be having a low intelligence quotient or there may be a problem of language or literacy or there may be drug dependency. He may not have understood the caution administered by the police, he may not have realized that certain facts known to him would prove his innocence or as already stated, he may have remained silent because of a
bona fideadvice by a lawyer. Thus, it is imperative that the judiciary recognizes the right to silence as an unbridled right which forms an integral part of the right to fair trial under
Article 21 of our Constitution.
j. The ramifications that Prahlad v. State of Rajasthan (supra) could potentially have given its interpretation of Section 313 of the Code of Criminal Procedure, 1973 are enormously grave. Not only has the said decision shifted the burden of proof from the prosecution to the accused and violated the principle of presumption of innocence, but it has gone against the text of the provision concerned and abridged the right of an accused against self-incrimination guaranteed under Article 20(3) of the Constitution as also his right to fair trial embodied under Article 21. The million dollar question which vexes one’s mind is whether the Apex Court has really rewritten Section 313 (3) of the Code of Criminal Procedure, 1973 resurrecting the omitted provision of drawing adverse inference which existed in its corresponding old Section 342(2) of the Code of Criminal Procedure, 1898.
By O.V. Radhakrishnan, Senior Advocate, High Court of Kerala
17/08/2020
Advocates-on-Record in the High Courts --
Is AoR System Desirable in the High Court?
(By O.V. Radhakrishnan, Senior Advocate, High Court of Kerala)
In this Article the attempt is to demystify the intricate balance between the power of the Supreme Court and the High Courts in the institution of Advocates-on-Record system and offers insight into the working of the system in the Supreme Court in the wake of the proposal to introduce the system in the High Court of Kerala. The Advocates Act, 1961 is an Act to amend and consolidate the law relating to Legal Practioners and to provide for the constitution of Bar Councils and an All-India Bar as described in the Preamble to the Act. The Advocates Act itself was introduced to implement the recommendations of the All India Bar Committee made in 1953. It aimed at establishment of an All India Bar Council, a common roll for the advocates and integration of the Bar into a single class of practitioners known as ‘advocates’. It was also to create autonomous Bar Councils, one for the whole of India and one for each State. The professional function of advocate is, essentially, one of supreme, even sublime and the right to practice the profession of law is not only a statutory right but also is a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India subject to reasonable restrictions in the interest of the general public imposed by the State by any law.1
Advocates are the only recognized class of persons entitled to practise law as declared in Section 29 of the Advocates Act. A conjoint reading of Sections 24, 29 and 33 of the Advocates Act make it clear that once a person is found qualified to be admitted as an Advocate on the State Roll having satisfied the statutory conditions of eligibility laid down in sub-section (1) of Section 24, he becomes entitled to get enrolled as Advocate. Every enrolled advocate shall be entitled as of right to practise throughout the territories to which the Act extends under Section 30 of the Act. No overriding power is given either in the Bar Councils Act or in the Advocates Act to limit or in any manner affect the entitlement of the right to practise the profession of law. Bringing out a dual agency by setting up advocates-on-record system is outside the substantive scope of the Advocates Act, 1961 and beyond the powers of the High Court under the Advocates Act and is ultra vires. On creation of the Advocate-on-Record system the Advocate-on-Record alone would be entitled to file appearance or act for a party in the Court. Resultantly, the Advocates who are otherwise entitled to practise the profession of law would be replaced by advocates-on-record not contemplated by or permitted under the Advocates Act. Necessarily, introducing Advocate-on-Record system in the High Court would be violative of the entitlement of advocate as of right to practice under Section 30 of the Advocates Act and would tantamount to depriving the fundamental right to practise the profession of law guaranteed under Article 19(1)(g) of the Constitution.
The Advocates Act, 1961 entitles an advocate as ofright to practise which is the statutory prerogative subject to no restriction or interference. Section 30 of the Act entitles every advocate whose name is entered in the State roll as ofright to practise in all Courts. Section 30 of the said Act was brought into force with effect from 15th day of June, 2011 as per Notification S.O.1349 (E) dated 9th June, 2011 published in the Gazette of India Extraordinary. Section 30 of the Advocates Act is quoted below:
“30. Right of advocates to practise.-- Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends,-
(i) in all Courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise”.
The right conferred upon every advocate whose name is entered in the State Roll as ofright under Section 30 of the Advocates Act, 1961 is a complete right to appear and plead as well as to act in the High Court. His right once granted cannot be deprived of quahis acting in the Court while remaining enrolled as an advocate on the State Roll. Thus the entitlement as ofright to practise the profession of law jealously confined and unreservedly conferred upon the advocates under the Act cannot be rendered unavailing by the institution of Advocates-on-Record system in the High Courts.
In Aswini Kumar v. Arabinda Bose,2the Supreme Court held that an advocate of the Supreme Court becomes entitled as of right to appear and plead as well as to act in all the High Courts including the High Court in which he is already enrolled, without any differentiation being made for this purpose between the various jurisdictions exercised by those Courts. The word ‘practise’ as applied to an Advocate in India includes both the functions of acting and pleading, and there is nothing in the Supreme Court Advocates (Practise in High Courts) Act, 1951 to warrant the cutting down of that statutory right to pleading only. The Supreme Court further declared that the legislature used the word ‘practise’ both in the Bar Councils Act and in the Supreme Court Advocates (Practise in High Courts) Act in its full sense of acting and pleading. In the absence of any overriding power under the Act of 1951, any restrictive rule cutting down the statutory right would be repugnant to Section 2 of the said Act and therefore, void and inoperative.
Advocate-on-Record system is alien to the Advocates Act, 1961. The Advocate-on-Record system was devised by the Supreme Court in 1962 and has been there ever since. The Supreme Court Rules, 1950 were amended in exercise of the power under Article 145(1) of the Constitution by inserting Rules 16 and 17 under Order IV introducing Advocate-on-Record system which were challenged before the Supreme Court in In Re Lilly Isabel Thomas3. The impugned rules were found to be valid and within the rule making power of the Supreme Court under Article 145(1) of the Constitution read with Section 52 and Section 58(3) of the Advocates Act.
The Rule made by the Supreme Court under Article 145 of the Constitution of India is subject to the provisions of any law made by the Parliament. Legislative Entry to make law in respect of persons entitled to practise before the Supreme Court is Entry 77, List 1 of the Seventh Schedule of the Constitution. No law was made by the Parliament under Entry 77 List 1 of the Seventh Schedule of the Constitution of India and the Rules 16
and 17 of the Supreme Court Rules were found to be not in contravention of any provisions of law made by Parliament.
The Supreme Court Rules, 1950 were repealed by the Supreme Court Rules, 1966
which stood repealed by The Supreme Court Rules, 2013. The Supreme Court Rules, 2013 were made by the Supreme Court in exercise of the powers conferred by Article 145 of the Constitution and all other powers enabling it in that behalf with the approval of the President.
The salient features of AoR system are discernible in the Supreme Court Rules, 2013. According to Rule 5 no advocate shall be qualified to be registered as an Advocate-on-Record unless his name is or has been borne on the Roll of any State Bar Council for not less than four years on the date of commencement of his training and has undergone training for one year with an Advocate-on-Record by the court and thereafter, passes such tests as may be held by Court for advocates who apply to be registered as Advocate-on-Record. Rule 7 provides that an Advocate-on-Record shall, on his filing a memorandum of appearance on behalf of a party accompanied by a vakalatnama duly executed by the party be entitled to act as well as to plead for the party in the matter and to conduct and prosecute before the Court in all proceedings, that may be taken in respect of the said matter or any application connected with the same or any decree or order passed therein including proceedings on taxation and applications for review. Rule 7(c) provides that no advocate other than an Advocate-on-Record shall be entitled to file an appearance or act for a party in the Court. What follows is that on setting up the AoR system ‘advocate’ falling within the definition of ‘advocate’ in the Advocates Act and in the Bar Councils Act shall stand deprived of their right to appear for a party, plead and address the Courts in a matter. Once a person is found qualified to be admitted as an advocate on the State Roll having satisfied the statutory conditions of eligibility laid down in sub-section (1) of Section 24, he automatically becomes entitled to be enrolled as advocate and on enrolment the right to practise with all its vigour and force is available to those advocates whose names are entered in the State Roll as per Section 17 of the Act.
The Rules creating AoR system were framed by the Supreme Court under Article 145(1) of the Constitution have overriding operation in view of saving clause under
Section 52 and Section 58(3) of the Advocates Act. Under Section 52 of the Advocates Act the Supreme Court has been expressly authorised to make rules in exercise of the power under Article 145(1) of the Constitution untrammelled by the provisions in theAdvocates Act. Section 58(3) of the Advocates Act specifically provides that every person who, immediately before the first day of December 1961, was an Advocate on the roll of any High Court under the Indian Bar Councils Act, 1926 or who has been enrolled as an Advocate under the Act until Chapter IV comes into force, be entitled as of right to practise in the Supreme Court subject to the rule made by the Supreme Court in that behalf. In view of the specific provisions contained in the Constitution and Sections 52 and 58(3) of the Advocates Act, the entitlement as of right of an advocate to practise in the Supreme Court is subject to the Rule made by the Supreme Court in that behalf conveying the idea that the rules made by the Supreme Court shall prevail upon the provisions in the Advocates Act.
The power of the High Court to make rules is confined to lay down the conditions subject to which an Advocate shall be permitted to practise in the High Court and the Courts subordinate thereto under Section 34 of the Advocates Act. The Rules made by the High Court under the above provision can have only regulatory character and cannot be prohibitive or infringe the full-fledged right to practise the profession of law.
The Rules are delegated legislation and the delegated legislation cannot in any way change the provisions of enactment itself and must only be resorted to for the carrying out the purposes of the legislation itself. In Babaji Kondaji Garad etc. v. The Nasik Merchants Co-operative Bank Ltd., Nazik and others etc.4 the Supreme Court held that if there is any conflict between a statute and the subordinate legislation, it does not require elaborate reasoning to firmly state that the statute prevails over subordinate legislation and the bye-law, if not in conformity with the Statute in order to give effect to the statutory provision, the Rule or bye-law has to be ignored. That being the settled legal position, the High Court is not competent to bring out the Advocate-on-Record system which would be repugnant to the provisions of the Act and ultra viresthe power vested with it under Section 34(1) of the Advocates Act.
An advocate whose name is borne on the State Roll has a full-fledged right to practise throughout the territory of India. The right of Advocate to practise as of right is made subject to the Advocates Act and that general right to practise cannot in any manner be fettered or whittled down and the rules can be made only for regulating proceedings inside the Court which is distinct from the right to practise the profession of law. In Pravin C. Shah v. K.A.Mohammed Ali 5 the Supreme Court approvingly quoted the following observations made in the judgment by a Division Bench of the Allahabad High Court in Prayag Das v. Civil Judge, Bulandshahr and Others 6:
“The High Court has a power to regulate the appearance of advocate in courts. The right to practise and the right to appear in courts are not synonymous. An advocate may carry on chamber practice or even practise in courts in various other ways, eg., drafting and filing of pleadings and Vakalatnamafor performing those acts. For the purpose of regulating his appearance in courts, the High Court should be the appropriate authority to make rules and on a proper construction of S.34(1) of the Advocates Act it must be inferred that the High Court has the power to make rules for regulating the appearance of advocates and proceedings inside the courts. Obviously, the High Court is the only appropriate authority to be entrusted with this responsibility. However, so far as the basic qualifications of an Advocate entitling him to practise without physically appearing in Court, or disentitling him from doing so are concerned, the determination of such conditions must remain within the exclusive province of the Bar Council. The same division of functions is borne out by the difference of language of the two provisions. Whereas clause (ab) of Section 49 refers to the conditions subject to which an Advocate shall have the right to practice, Section 34(1) deals with the conditions subject to which an Advocate shall be “permitted to practise” in the context can have only one meaning i.e., the right of physical appearance in Court. The word “permitted’ refers to a particular occasion when an Advocate wants to appear in a Court and not to his general right to practise which is solely determined by the Bar Council. ................... The words “laying down the conditions subject to which an advocate shall be permitted to practise” must be given a restricted meaning of permitting physical appearance of the Advocate and not his general right to practise as an Advocate.”
The Supreme Court endorsed that the legal position has been correctly delineated in the above statement of the Allahabad High Court which was made in the context of questioning the powers of the High Court by an advocate in making dress regulation for the advocates while appearing in Courts. The Supreme Court drew a distinction between the power to formulate rules for regulating proceedings inside the Court and to regulate the general right to practise treating as different and distinct.
In Abhay Prakash Sahay Lalan v. High Court of Judicature at Patna7 a Division Bench reiterated that the Rules framed under Section 34(1) of the Advocates Act are regulatory in character, and are not prohibitory.
The High Court while making Rules under Section 34(1) of the Advocates Act cannot contravene substantive provisions in the Act and they may relate merely to the rules of practice or conditions of the right to practise. Section 34(1) of the Advocates Act does not empower the High Court to cut down the substantive right of an Advocate to practise, that is to say, the right to act and plead. The rules can provide fixing professional standards, ethics and duties of Advocates. The right to appear and conduct cases in the Court is a matter on which the Court must and does have major supervisory and controlling power. The High Court has power to formulate rules for regulating proceedings inside the Court. Such power should not be confused with the right to practise law. The High Court can regulate the appearance of the Advocates in Courts.8
Section 16(1) of the Advocates Act specifically provides that there shall be two classes of advocates, namely, Senior Advocates and other Advocates. Section 17(1) provides that every State Bar Council shall prepare and maintain a Roll of Advocates in which shall be entered the names and addresses of all persons entered as Advocates on the Roll of any High Court under the Indian Bar Councils Act and all other persons who are admitted to be Advocates on the Roll of the State Bar Council under the Act on or after the appointed day. Sub-section (2) thereof provides that each such Roll of Advocates shall consist of two parts, the first part containing the names of Senior Advocates and the second part, the names of other Advocates. Therefore, there are only two classes of Advocates under the Advocates Act, enacted by the Parliament and the classification of Advocates statutorily made cannot be multiplied by the High Court in exercise of the rule making power by introducing yet another class called ‘Advocate-on-Record’. It is a negation of equality falling within the mischief of Article 14 of the Constitution of India.
In the Supreme Court Rules an ‘advocate’ and ‘advocate-on-record’ are differently defined and are treated as different classes of advocates. ‘Advocate’ is defined to mean a person whose name is entered on the Roll of Advocates prepared and maintained by a State Bar Council under the Advocates Act whereas ‘Advocate-on-Record’ is defined to mean an advocate who is entitled under the Rules to act as well as to plead for a party in the Court. By the above definition of Advocate-on-Record, the entitlement to act as well as to plead for a party in the court is exclusively conferred on the Advocate-on-Record and an ‘advocate’ as defined in the Act is totally debarred from acting as well as pleading for a party in the Court. It also contains a provision that no advocate other than the Advocate-on-Record for a party shall appear, plead and address the court in a matter unless he is instructed by the Advocate-on-Record or permitted by the Court. Rule 7(a)(i) of the Rules provides that an Advocate-on-Record shall on his filing a memorandum of appearance on behalf of a party accompanied by a Vakalatnama duly executed by a party, be entitled to act as well as to plead for the party in the matter and to conduct and prosecute before the Court all proceedings that may be taken in respect of the said matter or any application connected with the same or any decree or order passed therein including proceedings in taxation and application for review and Rule 7(a)(c) directs that no advocate other than an Advocate-on-Record shall be entitled to file an appearance or act for a party in the Court. The Supreme Court Rules as amended in 1962 having been upheld In Re Lilly Isabel Thomas’ case, the legality of classification of advocates made in the Supreme Court Rules, 1962 which is not materially different in the new Rules, 2013 is not a surviving issue.
There is yet another aspect to be noticed. Advocates from various State Roll in the country may come and appear before the Supreme Court and their identity cannot be easily verified by the Supreme Court Registry. An advocate who is not on the Roll of the concerned State Bar Council and who is not ordinarily practicing in such Court, a regulatory measure that such advocate can file an appointment alongwith an advocate who is on the Roll of such Bar Council of the State and who is ordinarily practicing in such Court is necessitous. The object of the above regulatory condition is to ensure that the Advocates who can be easily located and accountable to the Courts are allowed to practise before the Court. Rule 3 of the Rules framed by the High Court of Kerala under Section 34(1) of the Advocates Act, 1961 Regarding Conditions of Practice of Advocates provides that an advocate who is not on the roll of the Bar Council of the State in which the Court is situate, shall not act in such Court, unless he files an appointment alongwith an advocate who is on the Roll of such State Bar Council and who is ordinarily practicing in such Court. Such a condition is intended for easy identification of the person who appears before the Court when he is an advocate enrolled in another Bar Council or is not on the Rolls of advocates of the High Court and is to ensure his presence whenever the cases are listed and to minimize dismissal of cases for default and waistage of judicial time. The objective is achieved when he is permitted to appear alongwith a local advocate of the High Court. Such regulation cannot be confused with the right to practise the profession of law. Infringement of the right to practise the profession of law would arise only if prohibition is imposed against filing appearance and acting for a party and vesting such power solely on the advocate-on-record.
On the institution of the Advocate-on-Record system no one can appear, plead and address the Court except by an authority of an AoR and instructed by an AoR. An AoR alone is entitled to act as well as to plead for the party in the matter and to conduct and prosecute before the Court. Thereby, the advocate on the State Roll is divested of the authority and power to act and plead for a party in a matter and to conduct and prosecute before the Court in all proceedings that may be taken in respect of the said matter. Resultantly, the statutory right of advocate to practiseas of rightconferred under Section 30 of the Advocates Act would be fettered or impaired under the guise of framing rules rendering the entitlement as of rightto practise the profession of law nugatory and illusory.
The institution of AoR system transgressing the Advocates Act is totally impermissible in the purported exercise of the rule making power under Section 34(1) of the Advocates Act. If any ban, partial or otherwise, is imposed on the right to practise the profession of law of the ‘advocates’ as defined in Section 2(a) of the Advocates Act from exercising the right to practise namely, to ‘act and plead’ in the High Court by bringing out the devise of AoR system, it is acting beyond its powers and is ultra vires.It is violative of the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India.
It may not go unnoticed that in R.K.Anand v. Delhi High Court 9, the Supreme Court in a matter arising out of conviction under the Contempt of Courts Act on a complaint of sting recordings noticing that all the High Courts have not framed Rules under Section 34 of the Advocates Act and while directing to frame rules without further delay, an observation has been made that the High Courts may also consider framing Rules for having Advocates-on-Record on the pattern of the Supreme Court of India which is one made without argument, without reference to the relevant provisions of the Act and totally outside the issues in
question in the case. The observation was unnecessary for the decision pronounced and not on an issue pleaded or in question before the Supreme Court or decided by it. It is a casual expression or passing expression which does not carry any weight and cannot be treated an ex-cathedra statement having weight of authority.
Before concluding, it is only appropriate to mention here that though the Supreme Court framed rules under which the institution of AoR is created in order to facilitate the working of the Court, instances converting the noble profession into a profession of cheating presenting a very sorry state of affairs are galore. The Supreme Court had occasion to deplore the conduct of AoR adopting the unbecoming and unethical practice of lending of signatures for a petty amount without any sense of responsibility and rendering no assistance to the Court. In Tahil Ram Issardas Sadarangani v. Ramchand Issardas Sadarangani10 the Supreme Court approvingly quoted the passage from the Order of the learned Judge of the Bombay High Court containing the sentiments expressed therein:
“It appears that there are certain firms of attorneys who enter into arrangements with advocates under which they file appearances for persons who are the direct clients of these advocates. In such cases, the entire carriage of the proceedings is left to the advocate, and he is briefed at the hearing by the attorney merely as a matter of form, even the fees being recovered directly by the advocate from his client. From the point of view of professional ethics, it is, in my opinion, not proper for an attorney to lend his name in that manner and such practices amount to an abuse of the dual system prevailing on the original side of this Court.”
The Supreme Court further observed “The legal profession must give an introspection to itself. The general impression which the profession gives today is that the element of service is disappearing and the profession is being commercialised. It is for the members of the Bar to act and take positive steps to remove this impression before it is too late.” In Vijay Dhanjai Chaudhary v. Suhas Jayant Natawadkar11 the Supreme Court noticed the unfortunate prevalence of the practice of filing Special Leave Petitions by Advocate-on-Record acting as mere name-lenders, without having or taking any responsibility for the case and as a result of prevalence of such a practice, in such cases, the Advocate-on-Record do not appear when the matters are listed either before the Registrars or before the Chamber Judge (CJ) or the Court nor they do take any interest or responsibility for processing and conducting the case. They also play no role in preparation of Special Leave Petitions, nor ensure that the requirements of the rules are fulfilled and defects are cured. If the role of an Advocate-on-Record is merely to lend his name for filing cases without being responsible for the conduct of the case, the very purpose of having the system of Advocates-on-Record would get defeated. Accordingly, the Supreme Court issued noticeto the Advocate-on-Record Association and the Supreme Court Bar Association to assist the Court to find appropriate solution and provide necessary checks and balances. In Rameshwar Prasad Goyal, In Re12 the Supreme Court again strongly deprecated the practice of lending signatures by the AoR for consideration. The Supreme Court noticed: “In a system, as revealed in the instant case, a half-baked lawyer accepts the brief from a client coming from a far distance prepares the petition and ask an AoR, having no liability towards the case, to lend his signatures for a petty amount. The AoR happily accepts this unholy advance and obliges the lawyer who has approached him without any further responsibility. The AoR does not know the client, has no attachment to the case and no emotional sentiments towards the poor cheated clients. Such an attitude tantamounts to cruelty in the most crude form towards the innocent litigant. In our humble opinion, the conduct of such AoR is certainly unbecoming of an AoR. Though the observations by this Court in Tahilram Issardas Sadaranganiwere made two decades ago, the same are apposite even today. The Bar failed to have an introspection and improve the situation.” The Supreme Court further observed that “ The facts of this case present a very sorry state of affair. A noble profession has been allowed to be converted by this AoR into a profession of cheating. An AoR, whom the litigant has never briefed or engaged, has lent his signature for a petty amount with a clear understanding that he would not take any responsibility for any act in any of the proceedings in the Registry or the Court in the matter. The advocate who has been obliged by such an AoR must be going inside the Registry in an unauthorised manner and must be appearing in the Court directly or engaging a Senior Advocate without any knowledge/authorisation of the AoR. It is beyond our imagination what could be more devastating and degrading for the institution of AoR’s. Even a few of them indulging in such an obnoxious practice spoils the working of this Court without realising that the Bench and the Bar, both have to give strict adherence to moral code.” The Supreme Court proceeded to observe: “Multi-tier operation of one lawyer hauling a client and then acting as a facilitator for some other lawyer to draw proceedings or engage another lawyer for arguing a case is definitely an unchartered and unofficial system which cannot be accepted as in essense, it tantamounts to a trap for litigants which is neither ethically nor professionally a sound practice. Such conduct is ridiculously low from what is expected of a lawyer. This kind of conduct directly affects the functioning of the Court and causes severe damage that at times becomes irreparable and incompensable. It is ironic that an AoR who has cleared an examination to get himself authorised lawfully for assisting the court becomes conspicuous by his absence though his presence is maintained on record. The defective psychology of not appearing in the court is contrary to the first principle of advocacy.”
The above quote at length has burning relevance now.
Nota bene, if Rules are framed by the High Court on similar pattern of the Supreme Court Rules to bring in AoR system in the High Court, it would no way facilitate the working of the Court any better but would result in doing positive disservice to the litigants. Theintroduction of AoR system in the High Court cannot by any stretch of logic said to be for the furtherance of the administration of justice and not at all help in regulating the orderly functioning of the Court. The role of middleman would place a big financial burden on the poor litigant and they would be on sufferance. Consequently, the rights of litigants who are before the Court seeking justice will be badly affected and people will lose confidence in the profession on account of deviant conduct of AoR by making his/her role as mere name lender. If anything has the effect of impairing or hampering the quality of the profession of law, it will surely affect the administration of justice.
This prefatory caveat is intended to serve a perspective to a critique of the expediency in adopting AoR system in the High Court.
A study of the AoR work in practice in the Supreme Court reveals the skullduggery of the Advocates-on-Record and the deleteriousness of the AoR system in relation to the administration of Justice. In the circumstances, to cut out the middleman and do away with the dual system in the Supreme Court is the only way to solve the serious problem created by deviant conduct of AoR in years past in the Supreme Court. If not, the right of the litigating public will remain truncated and trampled upon by the Advocates-on-Record leading to a travesty of justice.
Let me conclude with a sober quote:
“The wise know that foolish legislation is a rope of sand, which perishes in the twisting.”
-- Ralph Waldo Emerson
Foot Note
1. N.K.Bajpai v. Union of India (2012 (2) KLT SN 13 (C.No.12) SC = (2012) 4 SCC 653 para 21).
2.Aswini Kumar v. Arabinda Bose (1953 KLT OnLine 917 (SC) = AIR 1952 SC 369).
3. In Re Lilly Isabel Thomas (AIR 1964 SC 855).
4. Babaji Kondaji Garad etc v. The Nasik Merchants Co-operative Bank Ltd., Nasik and Ors.etc. (1984 KLT SN 7 (C.No.14) SC = 1983 (10) TMI 270 (SC).
5. Pravin C. Shah v. K.A.Mohammed Ali(2001 (3) KLT 820 (SC)).
6. Prayag Das v. Civil Judge, Bulandshahr & Ors. (AIR 1974 All.133).
7. Abhay Prakash Sahay Lalan v. High Court of Judicature at Patna (AIR 1998 Patna 75).
8. Jamshad Answari v. High Court of Judicature at Allahabad (2016 (4) KLT 1044 (SC) =
(2016) 10 SCC 554).
9. R.K. Anand v. Delhi High Court (2009) 8 SCC 106 at para 243.
10. Tahil Ram Issardas Sadarangani v. Ramchand Issardas Sadarangani (1993 Supp.(3) SCC 256).
11.Vijay Dhanjai Chaudhary v. Suhas Jayant Natawadkar(2010) 1 SCC 166 = 2010 (1) KLT Suppl.189 (SC).
12. Rameshwar Prasad Goyal, In Re (2014 (1) KLT Suppl.48 (SC) = (2014) 1 SCC 572.
Advocate on Record (AOR), A Thought !!
By Jamsheed Hafiz, Advocate, High Court of Kerala
08/08/2020Advocate on Record (AOR), A Thought !!
(By Jamsheed Hafiz, Advocate, High Court of Kerala)
Advocate On Record (AOR), is a system introduced in the Supreme Court in pursuance to the power conferred by the Constitution under Article 145 to regulating the rights of the Advocates to plead in Supreme Court of India. Incorporated in Part IV of the Supreme Court of India Rules, the regulation mandates, no advocate other than an Advocate on record shall be entitled to file an appearance, plead or act for a party in the Supreme Court of India. No advocate other than an AOR could hence appear and plead in the Supreme Court unless he is instructed by an AOR. This article enquires into the power of the High Courts in India to frame such rules of AOR and the reasonable classification among the advocates to achieve the objective.
AOR of Supreme Court
AOR of the Supreme Court is enacted based on the constitutional rights guaranteed to the Apex Court in the country as per the provisions of Art.145(1)(a), for regulating the “practice and procedure” of the court including the “rules as to the persons practicing before the court.” The right of an individual to practice any profession, or to carry on any occupation, trade or business is founded on Art.19(1)(g) incorporated in the Part III of the Constitution, which is a fundamental right of an individual. Certainly, the said fundamental right is not absolute but is subject to the restrictions stipulated in Art.19(6), which would permit the State to impose reasonable restrictions on the fundamental right guaranteed by operation of law. Further the power of the Supreme Court under Art.145 of the Constitution is subject to the provisions of law made by the Parliament. The Parliament then enacted the Advocates Act of 1961 imposing reasonable restrictions on Art.19(1)(g) on advocates. However, the Parliament ‘saved’ the Constitutional Right of the Supreme Court under Art.145, in the Advocates Act by incorporating Section 52, by which it expressly made clear that ‘No provisions of the Advocates Act will affect the powers of the Supreme Court for laying down the conditions subject to which a ‘senior advocate shall be entitled to practice’ and for determining the ‘persons who shall be entitled to act or plead in the Supreme Court. So Rules of the Supreme Court enacted grabbing powers under Art.145 for regulating the senior counsels and other advocates are outside the sphere or purview of Advocates Act and will be the exclusive prerogative of the Apex Court of the Country. It should also be understood that the framers of the Constitution was aware of the existence of High Courts within States of the country when Art.145 was incorporated but did not intended to reserve any such privilege to the High Courts under Constitution.
Why Advocate on Record in Supreme Court
The Constitution of India recognises and grants pyramidal structure of the court system in India where Supreme Court is the highest court of appeal and court of last resort in the country. The constitutional power guaranteed to the Supreme Court under Art.141 and 142 makes the court so special and privileged in the pyramidal structure of Judiciary. Further, Art.140 permits Parliament to confer such supplementary powers on Supreme Court which are not inconsistent with the Constitution for the purpose of enabling the court more effectively to exercise the jurisdiction conferred upon it by or under the Constitution. The above provisions of the Constitution makes the Supreme Court a special, highest and privileged institution in Pyramidal Structure of judiciary. To preserve, improve and regulate the standard of profession in the Apex Court of the country, the Supreme Court has enacted Advocate on Records Rules for designation to practice in Supreme Court based on knowledge and experience of an advocate. The intention of the introduced system of Advocate of Record hence is to maintain high quality in profession before the Apex Court of the country.
The constitutional validity of the Part IV of the Supreme Court Rules pertaining to the AOR was challenged before the Supreme Court in Lily Isabel Thomas (AIR 1964 SC 855). The Honourable Supreme Court held that the rules are valid since it framed rules based on the constitutional provision 145(1)(a) which is saved by the provision of the Advocates Act Section 52. Also few other provisions of the amended Rules of the Supreme Court Rules pertaining to the AOR was challenged again before the Delhi High Court in Balraj Singh Malik v. Supreme Court of India (2012 (2) KLT SN 141 (C.No.133) Del. = AIR 2012 Del.79 D.B.),
where the Supreme Court held that the rules pertaining to the AOR is constitutionally valid. The said decision of the Delhi High Court was quoted with approval by the Supreme Court in Arun Kumar and Ors. v. Supreme Court of India.(W.P.(Civil) No.371, 292 and 293 of 2015-
dated 14.09.2015).
Power of the High Court to Make Rules
The power of the High Court to make rules laying down the conditions subject to which an advocate shall be permitted to practice in the High Court and Subordinate Courts is governed by Section 34 of the Advocates Act. Though, Section 34 stipulates power of the High Court to frame rules laying down conditions subject to which an advocate may be “permitted to Practice” in High Court, the words “permitted to practice” is no absolute control over the advocates. The scope and ambit of the words “permitted to practice” under Section 34 was subjected to various judicial pronouncements which need to be analysed for understanding the power of the High Court under Section 34 to regulate “practice of advocates”.
Supreme Court Bar Association v. Union of India & Anr.
(1998 (1) KLT SN 84 (C.No. 85) SC = (1998) 4 SCC 409)
The constitutional Bench (Five Judge) of the Supreme Court was answering a reference to it by a Division Bench upon a question of limitation and powers of the Supreme Court to punish a Contemnor with punishments beyond the powers of the contempt of court in exercise of its jurisdiction under Art. 129 and 142 of the Constitution. A threeJudges Bench Decision of the Apex Court in Vinay Chandra Mishra (1995) 2 SCC 584, the Supreme Court invoked its jurisdiction under Art.129 and 142 and punished the contemnor with a suspended sentence of imprisonment together with suspension of his practice. The question before the 5 Judges bench was to decide whether the punishment for established contempt of court committed by an advocate can include punishment to debar the concerned advocate from practice by suspending his license (Sanad) for a specified period, in exercise of its power under Art.129 and 142 of the Constitution of India?. In deciding the above case, the Supreme Court has explained the scope and ambit of the powers of the court under Section 34 of the Advocates Act as under.
“ Para 57: In a given case, an advocate found guilty of committing contempt of court may also be guilty of committing “professional misconduct” depending upon the gravity or nature of his contumacious conduct, but the two jurisdictions are separate and distinct and exercisable by different forums by following separate and distinct procedures. The power to punish an Advocate, by suspending his licence or by removal of his name from the roll of the State Bar Council, for proven professional misconduct, vests exclusively in the statutory authorities created under the Advocates Act, 1961, while the jurisdiction to punish him for committing contempt of court vests exclusively in the courts.
Para 58: After the coming into force of the Advocates Act, 1961, exclusive power for punishing an advocate for “professional misconduct “ has been conferred on the concerned State Bar Council and the Bar Council of India. That Actcontains a detailed and complete mechanism for suspending or revoking the licence of an advocate for his “professional misconduct’. Since, the suspension or revocation of licence of an advocate has not only civil consequence but also penal consequence, the punishment being in the nature of penalty, the provisions have to be strictly construed. Punishment by way of suspending the licence of an advocate can only be imposed by the competent statutory body after the charge is established against the Advocate in a manner prescribed by the Act and the Rules framed thereunder.
Para 71: Thus, after the coming into force of the Advocates Act, 1961 with effect from 19th May 1961, matters connected with the enrolment of advocates as also their punishment for professional misconduct is governed by the provisions of that Act only. Since, the jurisdiction to grant licence to a law graduate to practice as an advocate vests exclusively in the Bar Councils of the concerned State, the jurisdiction to suspend his licence for a specified term or to revoke it also vests in the same body.
Para 72: The Letters Patent of the Chartered High Courts as well of the other High Courts to admit an advocate to practice. The power of suspending from practice being incidental to that of admitting to practice also vested in the High Courts. However, by virtue of Section 50 of the Advocates Act, with effect from the date when a State Bar Council is constituted under the Act, the provisions of the Letters Patent of any High Court and of any other law” in so far as they related to the admission and enrolment of a legal practitioner or confer on the legal practitioner the right to practice in any court or before any authority or a person as also the provisions relating to the “suspension or removal” of legal practitioners, whether under the Letters Patent of any High Court or of any other law, have been repealed. These powers now vest exclusively, under the Advocates Act, in the Bar Council of the concerned State.Even in England the Courts of Justice are now relieved from disbarring advocates from practice after the power of calling to the Bar has been delegated to the Inns of Court. The power to disbar the advocate also now vests exclusively in the Inns of Court and a detailed procedure has been laid therefore.”
The above judgment of the Honourable Supreme Court also relied on Bar Council of Maharashtra v. M.V. Dabholkar & Ors. ((1975) 2 SCC 702) a seven Judge Bench of the Supreme Court which held :
”The Scheme and the provisions of the Act indicate that the constitution of the State Bar Councils and Bar Council of India is for one of the principal purpose to see that the standard of professional conduct and etiquette laid down by the Bar Council of India are observed and preserved”.
In: Pravin C Shah v. Mohd. Ali and Anr. (2001 (3) KLT 820 (SC) = (2001) 1 SCC 650)
The question arose for consideration in the above case was Rule 11 of the Rules framed by the High Court of Kerala under Section 34(1)of the Advocates Act, 1961, regarding conditions and practice of Advocates (hereinafter referred to as the Rules).
Rule 11: No advocate who has been found guilty of contempt of Court shall be permitted to appear, act or plead in any Court unless he has purged himself of the contempt.
Bar Council of India challenged the above Rule 11 of the Kerala High Court contended that an advocate who had been found guilty of contempt of court shall not be permitted to appear, act or plead in a court unless he has purged himself of the contempt would amount to usurpation of powers of Bar Council. But the Supreme Court relying on Supreme Court Bar Association v. Union of India and Anr. (supra)held that the power under Rule 11 of the Kerala High Court stands on different footing and is upon the powers of the court in regulating the ‘appearance of the advocate in court’ and the court was not exercising the powers on ‘actual right of practice’. The Supreme Court held as follows:
“Rule 11 of the Rules is not a provision intended for the Disciplinary Committee of the Bar Council of the State or the Bar Council of India. It is a matter entirely concerning the dignity and the orderly functioning of the courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions etc. Rule 11 has nothing to do with all the acts done by an advocate during his practice except his performance inside the court. Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by Bar Council in exercise of its disciplinary powers. The right to practise, no doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court
must have the major supervisory power. Hence the court cannot be divested of the control or supervision of the court merely because it may involve the right of an advocate.
When the rules stipulate that a person who committed contempt of court cannot have the unreserved right to continue to appear and plead and conduct cases in the courts without any qualm or remorse, the Bar Council cannot overrule such a regulation concerning the orderly conduct of court proceedings. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the court. Proceedings inside the courts are always expected to be held in a dignified and orderly manner. The very sight of an advocate, who was found guilty of contempt of court on the previous hour, standing in the court and arguing a case or cross-examining a witness on the same day, unaffected by the contemptuous behaviour he hurled at the court, would erode the dignity of the court and even corrode the majesty of it besides impairing the confidence of the public in the efficacy of the institution of the courts. This necessitates vesting of power with the High Court to formulate rules for regulating the proceedings inside the court including the conduct of advocates during such proceedings. That power should not be confused with the right to practise law. While the Bar Council can exercise control over the latter, the High Court should be in control of the former.”
In Ex-Capt. Harish Uppal v. Union of India & Anr. (2003 (1) KLT 192 (SC) =
(2003) 2 SCC 45),another constitutional bench comprising 5 Judges considered the question whether lawyers have a right to strike or give call for boycotts of courts. The co-equal bench followed the earlier decision of the constitutional bench in Supreme Court Bar Association v. Union of India(supra) in para 25 of the judgment and held the position of law to be settled by the said decision. It further made highly illuminating observations in regard to lawyers right to appear before the court as :
“Para 34. One last thing which must be mentioned is that the right of appearance in Courtsis still within the control and jurisdiction of Courts.Section 30of the Advocates Act has not been brought into force and rightly so. Control of conduct in Court can only be within the domain of Courts. Thus Article 145of the Constitution of India gives to the Supreme Court and Section 34of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an Advocate) can practice in the Supreme Court and/or in the High Court and Courts subordinate thereto. Many Courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self-restraint is exercised, Courts may now have to consider framing specific rules debarring Advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the Courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of Bar Councils. It would be concerning the dignity and orderly functioning of the Courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file Vakalat on behalf of client even though his appearance inside the court is not permitted. Conduct in Court is a matter concerning the Court and hence the Bar Council cannot claim that what should happen inside the Court could also be regulated by them in exercise of their disciplinary powers. The right to practice, no doubt, is the genus of which the right to appear and conduct cases in the Court may be a specie. But the right to appear and conduct cases in the Court is a matter on which the Court must and does have major supervisory and controlling power. Hence Courts cannot be and are not divested of control or supervision of conduct in Court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed Contempt of Court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in Courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of Court proceedings. On the contrary it will be their duty to see that such a rule is strictly abided by.
InBar Council of India v. High Court of Kerala (2004 (2) KLT 485 (SC) =
(2004) 6 SCC 311),again the said conflict of Rule 11 of Kerala High Court Rules and Right to Practice was questioned before the Supreme Court by the Bar Council of India. The 3 Judge bench followed Pravin C. Shah v. Mohd. Ali & Anr. (supra).
Thus it can be seen that the Honourable Supreme Court drew a line of distinction between “actual practice” and “appearance/performance before the court” and held that the power to make rules regarding the “actual practice” is exercised by Bar Council and over “appearance/performance before the court” is exercised by the High Court.
Again in the case of R.K.Anand v. Registrar,Delhi High Court (2009 (4) KLT Suppl. 1
(SC) = (2009) 8 SCC 106), a three Judge bench of the Supreme Court again considered the question of powers of the court in inflicting punishments to the contemnor. In the above case, a prosecutor and the defence lawyer was charged with contempt after they were found negotiating with an important witness in the case, BMW case. The NDTV conducted a sting operation and telecasted in the incident in the television and a suo motucontempt was taken by the Delhi High Court which later ended up on conviction of the prosecutor and the defence lawyer under Contempt of Courts Act. The Delhi High Court prohibited them, by way of punishment, from appearing in the Delhi High Court and the courts subordinate to it for a period of four months from the date of the judgment but the court left them free to carry on their other professional work, e. g., ‘consultations, advises, conferences, opinion etc’. The said judgment was challenged before the Supreme Court. The main ground of challenge was that the Delhi High Court has not framed Rules under Section 34 of the Advocates Act to inflict other punishments on advocates, like barring his appearance before the court till the court purges the contempt and hence the punishments stipulated in Contempt of Courts Act could only be followed. The Honourable Supreme Court held that
Para.124:Ideally every High Court should have rules framed under Section 34of the Advocates Act in order to meet with such eventualities but even in the absence of the Rule the High Court cannot be held to be helpless against such threats. In a matter as fundamental and grave as preserving the purity of judicial proceedings, the High Court would be free to exercise the powers vested in it under Section 34of the Advocates Act notwithstanding the fact that Rules prescribing the manner of exercise of power have not been framed. But in the absence of statutory Rules providing for such a course an advocate facing the charge of contempt would normally think of only the punishments specified under Section 12of the Contempt of Courts Act. He may not even imagine that at the end of the proceeding he might end up being debarred from appearing before the court. The rules of natural justice, therefore, demand that before passing an order debarring an advocate from appearing in courts he must be clearly told that his alleged conduct or actions are such that if found guilty he might be debarred from appearing in courts for a specific period. The warning may be given in the initial notice of contempt issued under Section 14or Section 17
(as the case may be) of the Contempt of Courts Act. Or such a notice may be given after the proceeded is held guilty of criminal contempt before dealing with the question of punishment.
Further the court directed the High Courts to frame rules in this regard under Section 34 of the Advocates Act. The State of Kerala had already framed Rules in this regard which itself was the question decided in Pravin C. Shah’s case. The above direction to the High Courts in the country was only to protect the majesty of the courts in contempt of court jurisdiction and prevent advocates from appearing in court without admonishing the contempt.
Jamshed Ansari v. High Court of Judicature At Allahabad(2016 (4) KLT 1044 (SC) = (2016) 10 SCC 554)
The defeated petitioner, challenging the Constitutional validity of Rule 3 and 3.A of the Allahabad High Court Rules was the petitioner in the Supreme Court. Rule 3 of the Rules prohibited any lawyer who is not enrolled in the rolls of the State of Uttar Pradesh from appearing in the court without a joint Vakkalath of any lawyer enrolled in the State rolls of UP and ordinarily practicing in that court. Further Rule 3A of the Rules stipulated that without the leave of the court, no lawyer enrolled outside the State could appear in the court without the joint Vakkalath of a lawyer at Allahabad for Allahabad cases and at Lucknow for Lucknow cases. The court comprising of 2 Judges, held that :
“It is imperative for the smooth and effective functioning of the court that the court is able to fix responsibility on Advocates, which is not possible if Roll of Advocates is not maintained in the High Court. Moreover, an advocate is permitted to file vakalat on behalf of a client even though his appearance inside the court is not permitted. Conduct in court is a matter concerning the Court. But the ‘right to appear’ and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of ‘conduct in court’ merely because it may involve the right of an Advocate.
We have already pointed out above that the restriction stipulated in the impugned Rules is reasonable and in public interest. It would be necessary to clarify at this stage that the disciplinary jurisdiction conferred on the Bar Councils under Section 36of the Act for misconduct committed by the advocates stand on a different footing than the powers conferred on the High Courts to frame rules to practice before the High Court or subordinate Courts. It may be the intention of the Parliament to confer the jurisdiction on the lawyers’ body like Bar Councils regarding misconduct by advocates to maintain the independence of the Bar. However, again keeping in mind the administration of justice and regulating the Court proceedings and right to practice and right to appear before the High Courts and Subordinate Courts, power is conferred on the High Courts, to frame rules. If High Court keeping in mind, several relevant factors like the purity in a administration of justice, the interest of the litigant public and easy availability of the advocate to assist the court for proper adjudication of the dispute pending before it or expeditious disposal of such proceedings or for any other valid or good reasons which High Court considered just and proper frames such rules, we find no fault in Rule 3 or Rule 3A of the Rules.”
So the Honourable Supreme Court held that rule 3 or 3A of the Allahabad Rules does not restrict the ‘right of practice’ of an advocate but regulate, control or supervision of ‘conduct in court’ which is a part of major supervisory and controlling power of court; especially when advocate is given a right to appear in court and seek permission of the court under Rule 3A.
Mahipal Singh Rana v. State of U.P.(2016 (4) KLT 306 (SC) = (2016) 8 SCC 335)
In the above case a 3 Judges Bench of the Supreme Court was hearing an appeal under Section 19 of Contempt of Courts Act by a lawyer convicted for contempt of court. In the extra ordinary circumstances of repeating the contumacious act by the advocate, he was barred from appearing in the particular court till purges the contempt. In addition to the punishment given under the Contempt of Courts Act and due to the extra ordinary circumstances of inaction on the part of the Bar Council of Uttar Pradesh, the court exercised its appellate jurisdiction under Section 38 of the Advocates Act to render justice and suspended the practice of the advocate for 5 years.
R. Muthukrishnan v. The Registrar General Of The High Court of Judicature of Madras (2019 (2) KLT OnLine 2004 (SC) -(Writ Petition (C) No.612 of 2016) dated 28.01.2019
The Supreme Court was hearing a petition under Art.32 questioning the vires of amended Rules 14 A, 14B, 14C and 14D of the Rules of High Court of Madras, 1970 made by the High Court of Madras under Section 34(1)of the Advocates’ Act. The Rule 14 A of the Madras Rules empowered the High Court to ‘Debar’ a lawyer from appearing in the court and 14D empowered court to pass interim order pending enquiry to restrain a lawyer from practicing in the courts. The 2 Judges of the Honourable Supreme Court held that the rules are unconstitutional and set aside the same. In para 52, the court held:
“However, the High Court may punish advocate for contempt and then debar him from practicing for such specified period as may be permissible in accordance with law, but without exercising contempt jurisdiction by way of disciplinary control no punishment can be imposed. As such impugned rules could not have been framed within the purview of Section 34. Provisions clearly impinge upon the independence of the Bar and encroach upon the exclusive power conferred upon the Bar Council of the State and the Bar Council of India under the Advocates Act. The amendment made to the Rules 14(A) to 14(D) have to be held to be ultra vires of the power of the High Court.”
Power of Bar Council to Frame Rules on Practice of Advocates
It could be also be taken note that in case V. Sudeer v. Bar Council of India & Anr. (1999 (2) KLT 73 (SC),the Honourable Supreme Court struck down the amendment made by the Bar Council of India that advocates should undertake pre-enrolment training for a year before enrolment as unconstitutional. The right of an advocate to practice under the statute cannot be curtailed by such rules made by the Bar Council. Further an amended Bar Council Rules in the State of Kerala, incorporating ‘age limit’ for persons to learn law (joining five Years and Three Years LLB Course) was also set aside by the Honourable High Court of Kerala in a Batch of writ petitions permitting applicants to join the Law degree course without any age limit.
From the above Judicial precedents, we understand that the Right to Practice of an advocate include various rights from consulting clients, giving legal opinions to filing of pleadings before court and appearance before court. The right for filing of Vakkalath on behalf of client and filing pleading before the court even though his appearance inside the court is not permitted forms part of Right to practice of an advocate. Whereas Right to appear before the court is actual physical appearance before the court and the conduct to be followed in the court during such appearance. Hence the judicial precedents would render a principle that the words “right to practice” occurring in Section 34 of the Advocates Act is restricted only with respect to the “appearance of a lawyer or conduct before the court” and not the actual right to practice of an advocate which is the purely within the powers of the Bar Council. Hence incorporation of any rules by the High Court, restricting practice or prescribing qualification or disqualification for lawyers to actually practice before any court, would be in effect amending Sections 24, 24-A of the Act and would also be in contravention of Section 30 of the Advocates Act and would be held unconstitutional.
So formation of Advocates on Record by the High Court’s Rules Committee cannot in any way affect the actual right to practice of an advocate and he cannot be restrained from filing Vakkalath, application or petition in court without physically appearing in court. However, it would be open for the Rules Committee to frame any Rules without actually restraining any of his actual right to practice under Section 30 of the Advocates Act. So framing of any rules by the High Court’s Rules Committee like the one framed before Supreme Court, restricting the right to practice of an advocates only to those of AOR would certainly be unconstitutional. In short, even if any rules are framed by High Court in
pursuant to S.34 for AOR, the said rule cannot hold a provision that only lawyers qualifying AOR would alone be entitled to practice or file, plead and appear in the High Court.
If intention of AOR is improving standard in profession of Advocacy, adoption/absorption of any members of any particular association to the exclusion of lawyers fraternity in the ‘area where the Act extents’, could only be done in intelligible differencia. Gauging the standard of a lawyer either on his years of experience, number of cases filed, articulate skills are cumbersome process. Certainly, examination is the accepted democratic remedy. But any reservation to a class based on their area or practice, years of experience, cases filed or any other parameters and absorbing them as AOR along with the implementation of the system could only be done within reasonable classification, upon intelligible differencia. Definitely, an approach to AOR with an intention of claiming any exclusive right to practice by advocates of any association in High Court would end up in unreasonable classification without any intelligible differencia and finally unconstitutional. Undoubtedly, any such regulation would divide the lawyer’s fraternity to two different classes, elite and others.
Spread of Covid-19 in the world has seriously affected the economy of world in all its spheres including the lawyer’s fraternity. The change of physical filing to online filing has opened a new area of practice to Indian lawyers, to file cases from any part of the country or world without having any affinity to the High Court or High Court Advocates Association. It’s true that such a new area of practice is a hard blow to the lawyers practicing before the High Courts but it’s time we understand that the competition in the field of advocacy has raised itself to another higher level, may be by a natural cause of action. Rather draining thoughts to claim exclusivity or a status above the restricted class, it’s time to imbibe the primary lessons taught by the Pandemic, “the survival of the fittest” and work hard to achieve your goal.