CHENNAI: The Madras High Court has suggested to the Bar Council of India and the Centre to amend the All India Bar Examination (AIBE) Rules, 2010, and if necessary the Advocates Act, 1961, to allow enrolment of new aspiring advocates only after they pass the AIBE.
According to S Prabhakaran, co-chairman of Bar Council of India in New Delhi, the statutory body governing the legal profession, the existing system is that that law aspirants shall pass the exam only within two years from the date of their enrolment with the respective Bar Councils. It cannot be changed all of a sudden in view of the pendency of an appeal in Sudhir case before a Constitution bench of Supreme Court on this issue. Nearly 2,400 advocates, who did not pass the exam within the stipulated period of two years, had been suspended in Tamil Nadu, he added.
Justice S Vaidyanathan, who made the suggestion, also held that all courts/tribunals in the State shall have the power to demand the identity card/enrolment certificate/address proof of an advocate, if it has doubt and even direct him to produce photocopies of the same and the courts can refer it to the respective Bar Council for verification and if required, for action.
Irritated over the ‘mess’ caused by lawyers appearing in a case relating to grant of anticipatory bail to a person and his relatives in a matrimonial matter by suppressing the facts and duplication of lawyers representing them and filing the ‘vakalats’, Justice Vaidyanathan gave the directive, on Tuesday.
Earlier, Advocate-General Vijay Narayan submitted that to avoid fraud and filing of fake documents, the court could frame certain guidelines, so that it can be followed by the Registry before numbering the petition. The Appellate Side Rules need amendment for procedures. In this regard, he drew the attention of the judge to Rule 8 of the Appellate Side Rules, which clearly stated that the execution of a Vakalat has to be attested by a lawyer other than the one in whose favour the Vakalat is executed or an advocate who has appeared for the party in the proceedings.
The judge also referred to a statement issued by the Chairman of TN Bar Council that more than 33 per cent of lawyers in State are fake. Undoubtedly, the profession is deteriorating through persons, who are conducting ‘Kangaroo Courts’. To avoid malpractice, filing procedures shall be followed while executing Vakalat in terms of Rule 8, the judge said.
The judge said that to adhere to the rule, certain procedures have to be followed.
(i) Bail/anticipatory bail application should be in the form of an affidavit/petition duly signed by petitioner/petitioner’s counsel concerned in all pages;
(ii) If the anticipatory bail application is filed in petition format, the advocate-on-record should sign in all the pages of petition and if the anticipatory bail petition is filed in the affidavit format, the person who is attesting the affidavit shall sign in all pages;
(iii) In either case, the name of the advocate/attesting person should be written/affixed in capital letters, mentioning his place of qualification, enrolment no and cell phone no;
(iv) the photograph of the advocates-on-record and that of the lawyer who attests the Vakalat shall form part of the Vakalat and the Registry shall scan the Vakalat so filed;
(v) the advocate-on-record and the lawyer, who attested the Vakalat shall produce copies of the Enrollment Certificate, Bar Council Identity Card and the present residential or official address as proof. The Vakalat shall contain address together with e-mail address and cell number. This will reduce malpractice and eradicate fake advocates.
(vi) for getting change of Vakalat, the consent of the counsel-on-record is duly required. Wherever, the party is unable to get change of Vakalat, the new counsel should file Vakalat along with necessary documents, mentioned above along with affidavit and petition of the party. The courts below can accept it as a petition for changing the counsel and pass appropriate orders, immediately to avoid further sufferings to the litigants in criminal matters. This procedure for filing Vakalat applies to all the courts/tribunals situated in the State of Tamil Nadu and it shall take effect from January 2, 2018, the judge said.
Coming back to the case in hand, the judge disposed of the criminal original petition from a woman to cancel the advance bail granted to the accused — the husband and his relatives. As the accused had suppressed certain facts and changed the counsel very often, the relief granted to them is cancelled, the judge said.