Madras HC stays controversial Vakalat Verification Rules till March 1

A Division Bench of the Madras High Court has postponed the operation of recently issued directives mandating that advocates furnish copies of Bar Council ID/photo identity proof at the time of filing vakalat, until March 1..The issue has its genesis in orders passed by Justice S Vaidyanathan towards the end of last year, in which he had framed certain verification procedures to be complied with before the filing of vakalat. The same was done in an attempt to move towards weeding out fake lawyers. Circulars were also issued to this effect, along with allied mandatory procedures..Objections had been raised against the same by various lawyers’ associations and stakeholders, primarily on grounds of the Court’s incapacity to pass such directives on the judicial side and practical difficulties in their implementation..Shortly before the December break, Justice Vaidyanathan had agreed to re-consider the orders passed by him after the Pongal holidays. However, for the time being, he had laid down six guidelines for lawyer verification, including two conditions to be complied before filing the vakalat, which were set to be implemented this year..The following are the guidelines issued by him:.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 Advocate..A circular bringing these directions into effect was issued on December 29 last year..However, the Division Bench of Justices Huluvadi G Ramesh and RMT Teeka Raman on Wednesday effectively stayed the operation of the two conditions pertaining to the filing of vakalat until March 1. The order passed by the Bench states,.“There were no serious objections with regard to Clauses (iii), (iv) (vi), which are optional in nature. However, taking note of the practical difficulties expressed by the Advocates on record, it is made clear that Clauses (i) and (ii) of the impugned circular shall come into force on and with effect from 01.3.2018, instead of today. As far as Clause (iv) is concerned, in view of the judgment of the Division Bench of this Court cited above, it is stayed pending disposal of the writ petitions.”.The stay was granted after lawyers presented their grievances before the Bench on grounds similar to those raised before the Single Judge. Among those who appeared were Senior Advocate ARL Sundaresan as well as advocates NGR Prasad, PVS Giridhar, G Mohanakrishnan, V Raghavachari, VR Kamalanathan and V Nalini..Promulgation of Guidelines cannot be done on the Judicial side.Among other objections raised, it had been argued that the impugned guidelines ought to have been introduced on the legislative side by administrative bodies of the High Court constituted for that purpose..In particular, it had been contended before the Division Bench that the Circular had issued the impugned regulations in violation of Section 125 of the Civil Procedure Code. The rules so introduced were also not in consonance with Order III, Rule 8 of the High Court Appellate Side Rulesm which lays down the requirements for Execution and Attestation of Vakalatnamas..Speaking to Bar & Bench, Senior Advocate P Wilson voiced similar concerns..“We have a Rules Committee in the High Court that frames the rules regarding presentation of vakalats, pleadings etc and then places the same before the Full Court for approval. Once the Full Court approves it, the rules will be notified in the government gazette. Only then the rules will come in to force which will be binding on all concerned. .When the Rules committee is in place, and it is functioning, there was no need to issue such directions. The Court on its judicial side normally doesn’t transgress into legislative or rule-making functions. Striking or reading down of a statutory provision or rules is done only by the Writ court in exercise of its power under Article 226, when the rule is under challenge and not by a court exercising power under Section 482 of CrPC that too without hearing the necessary parties and stake holders. .When the Act and rules permit an advocate to practise, can non-compliance of these additional conditions prescribed in the judgement of Justice Vaidyanathan prevent a lawyer from filing cases and appearing before the Courts?”.Practical difficulties faced in obtaining Bar Council ID.On December 22 last year, while directing that vakalats should be accompanied by the Bar Council IDs, Justice Vaidyanathan had also ordered that following any request for the same, the Bar Council ID had to be issued to an applicant within ten working days..However, President of the Madras High Court Advocates Association, G Mohanakrishnan points out that the Bar Council ID may not be as readily available. Speaking to Bar & Bench, he remarked that lawyers practicing in more remote areas of the state may find it all the more difficult to obtain Bar Council IDs, compared to lawyers practicing in Chennai..The unrest among the lawyers had reportedly provoked several bar associations in Tamil Nadu, particularly those engaged in the lower courts and mofussil areas, to launch boycotts of court after the December break. On Wednesday, over 3000 lawyers called for an indefinite strike in Coimbatore, although it may be called off now that the controversial directions have been temporarily halted..Hardship imposed on Litigants and Lawyers.Various lawyers have asserted that the Court would have the full support of the Bar in its aim to weed out fake lawyers. However, the grievance lies in the imposition of such rules on short notice and without consultation..As a result, it has been pointed out that it is not only the lawyers, but also litigants who are being affected..Mohanakrishnan said that as result of the Circular’s directives, a large number of cases filed in the last two days were rejected by the Court Registry..“Who is affected?” remarked P Wilson, “It is ultimately the litigants who are affected. Access to courts is access to justice. It violates Article 21. Under the guise of following the order of the court, they cannot prevent the litigants from coming to the Court.”.These, among other issues, will now have to be examined by the Division Bench. The matter will be taken up next on February 1..Read Order below.