Verification of Lawyers and filing of Vakalats; Madras HC to decide after December break

The uncertainty regarding how to definitively tackle the issue of fake lawyers continues as the Madras High Court is poised to reconsider the issuance of guidelines last month, for the verification of lawyers at the time of filing vakalats and like documents..Case background.Last month, Justice S Vaidyanathan had framed certain guidelines with the aim of weeding out fraudulent lawyers. Whereas the main matter concerned anticipatory bail in a divorce case, the Court noted that the respondents in the case had been able to suppress material facts concerning the pendency of multiple anticipatory bail applications by frequently changing counsel. It was further noted there were elements of fraud at play with respect to certain advocates who represented the respondents..Taking a serious view of this, the Court had laid down certain procedures to be complied with before filing cases, to guard against practice by fake advocates. These directions were set to take effect from January 2, 2018..Various lawyers’ representatives had requested the Court to consider recalling this order, contending that it was not appropriate to issue such guidelines on the judicial side. However, the Court declined to recall the order, primarily in view of the bar laid down in Section 362 of the Code of Criminal Procedure..Following this, a Circular was also issued by the Registry of the High Court on December 18, making similar procedures mandatory before vakalats and bail applications are allowed to be filed..Grievances presented by Stakeholders.However, before the Court closed for the December break, Justice Vaidyanathan agreed to hear representations made by various advocates associations. Therefore, on December 20th a number of stakeholders made detailed submissions before the Court asking it to reconsider the directions issued in the impugned order..The various grievances raised in this regard included the practical difficulties likely to be faced if the directions were stringently imposed. Certain discrepancies were also noted between the order of the Court and the mandatory criteria insisted in the Circular issued by the Registry..Among others, the Court heard the submissions made by advocates PVS Giridhar and G Mohanakrishnan, appearing for the Madras High Court Advocates Association, Advocate General Vijay Narayan for the State, advocate VR Kamalanathan on behalf of the Madras Bar Association, advocate Nalini on behalf of the Women Lawyers Association, Senior Advocates R Gandhi and M Venkatachalapathy and advocates VT Balaji and Dakshayini..Notably, advocate PVS Giridhar argued extensively on the power of the Court to recall its orders if it is found that the Court lacked inherent jurisdiction to pass the impugned order and, as a consequence, the order is a nullity. In such circumstances, it was contended, the Court must ideally recall its order..It was argued that these circumstances were applicable in the instant case, where the impugned guidelines ought to have been introduced on the legislative side by High Court bodies constituted for that purpose..Various arguing counsel assured the Court that it would have the full support of the Bar in weeding out fake lawyers. However, before deciding on the process of doing the same, various stakeholders from lawyers’ associations across the State have to be consulted and their representations considered. Suggestions in this regard could also be tendered by these stakeholders for the consideration of the Court..In light of these submissions, Justice Vaidyanathan had agreed to re-examine his orders and the circular and cited precedents to determine.whether he was within his powers to issue the said guidelineswhether clarifications were required in view of apparent discrepancies between the orders and the rules being insisted on by the Court Registry, relying on his order..He also agreed to consider suggestions that the lawyer stakeholders had to offer in order to aid the process of weeding out fake lawyers..On December 22, the last regular working day before the Court closed for the break, the Court stated that the impugned order would not be recalled for now and that the same would be examined when the matter is taken up for hearing on January 22, 2018. The order issued by Justice Vaidyanathan indicates as much:.“Whether the contention of Mr. PVS Giridhar, learned counsel for the petitioner with regard to recalling the order dated 21.11.2017 passed in Crl.O.P.No.21454 of 2016, is justified or not will be considered after Pongal Holidays.”.However, the Court has suspended its order passed in November, in which it had refused to re-open the matter in view of Section 362..“As members of various Bar Associations sought time to come up with suggestions to weed out fake practicing lawyers and that they have agreed to abide by the following conditions (which shall take effect from 02.01.2018) till the issue is resolved, without going into the aspect of 362 Cr.P.C. for the present, the order dated 21.11.2017 passed in Crl.O.P.No.21454 of 2016 is suspended till 22.01.2018.”.Verification Guidelines to come into effect from January 2, 2018.As of now, the order indicates that the following guidelines will apply with respect to filing of vakalats and bail applications..Vakalath/Memo of Appearance shall be filed along with clear photo Identity Cards of the Advocates-on-record; Advocates, who do not have photo Identity Cards, shall obtain the same from the Bar Council, without which, it shall not be entertained (This condition pertains only to those Vakalats filed from 02.01.2018)Attesting Advocates shall also file proof of Identity Card to enable the Advocate-on-record to file it along with their Vakalat/Memo of Appearance;In addition to the residential address, it is open to the Advocates-on-record as well as the Attesting Advocates to furnish their office address;Petitions in Criminal cases can be filed in the form of a petition;All the Petitions filed before the Criminal Court shall be duly signed by the Advocate-on-record, on all pages together with Enrolment Number; Courts below are entitled to cross-check the proof produced, if they suspect the same;Whenever the Identity Card is demanded for verification by any Court/Registry, the same shall be produced by the Advocates;.Addressing concerns raised that there were delays in the issuance of Bar Council Identity cards to lawyers, the order also directs that,.“…as and when Advocates request for issuance of fresh Identity Cards, the Bar Council shall verify their antecedents and issue the same within ten working days.”.Protection afforded to litigants who do not want to continue with their counsel will also remain. In this regard the order states,.“…It is clarified that if any litigant does not want to continue with the counsel, who has filed Memo of Appearance/Vakalat, the case bundle shall be immediately handed over to the client without insisting payment for return of bundle. It is needless to mention that the client is entitled to give a complaint to the Bar Council against the Advocate. If any fee is due from the client, the counsel is entitled to claim the same by approaching the appropriate Court.”.The Registrar General of the Court has also been directed to issue a fresh Circular to all the Advocate Associations in Tamil Nadu, in order to enable them to make their representations before the Court when the matter is taken up next on January 22, 2017..Importantly, the Court has noted that it cannot undo or modify the Circular issued based on another order of the Court passed in November 2016. This order had directed the Registry not to accept vakalats,.“…if it does not contain the Enrollment Number and complete residential address of the counsel on record as well as the Advocate, who attests the Vakalath and Affidavit. Registry is further directed not to accept any Vakalath, if it contains only the address mentioned as MHAA.”