Thursday, October 16, 2014

What and whom the Bar should stand up for?

(As published in The Pioneer on 14th October 2014 available at-

Whom should the Bar stand up for? This question has once again come to the fore after former MP Kharabela Swain recently wrote a letter to the Chief Justice of India questioning the bona fides of the Odisha High Court Bar Association, the Odisha State Bar Council and other Bar associations across the State who went on a cease-work protest condemning the arrest of ex-Advocate General Asok Mohanty due to his alleged involvement in the chit fund scam.
Every lawyer in India is mandatorily taught in his law school about the importance about the ‘rule of law’ being treated as the ground norm, without which no democracy can thrive. But after witnessing the recent state-wide protest of lawyers that started on September 24 by boycotting court work, it appears to be ‘rule of lawyers’ instead! Or in better words, it can be termed as ‘rule of lawyers over law.’
It is an open secret that the surge in the desire of lawyers to abstain from court work for some reason or the other, often gets doubled when any vacation is nearing, as hardly any lawyer is in a mood to work that time. Such days of abstinence are very common in various courts of Odisha, and often serve as Sajabaja (a preparatory day) for the actual Raja, an Odia festival of rejoice and merrymaking. The reason for such Sajabaja (read abstinence from court work just before vacation) is mostly immaterial for such lawyers.
 This time, the Bar leaders took fullest advantage of the perfectly-timed arrest of ex-AG by citing as the reason of such Sajabaja that began on September 24 and lasted only till the ex-AG was granted bail by a District Court on September 26.
It was not for the lawyers but for the court to decide whether the grounds stated by the CBI are adequate to justify the manner of arrest or not. Nothing stopped the Bar from expressing its solidarity for the ex-AG by organising protests. However, protest by abstaining from court work was far from acceptable.
Several leaders of the Bar issued statements to the media condemning the arrest, terming it as illegal. But even if for the sake of argument it is assumed that the arrest was illegal, protesting against it by abstaining from court work was nothing but an illegality resorted-to protest against another illegality. There can probably be no greater illegality than such abstinence, that can be perpetrated by the members of the Bar damaging public interest at large when crores of cases are pending in courts all over the country.
Further, even if it is assumed that the arrest was illegal then several judicial remedies are available in courts of law. However, it is rather unfortunate that the leaders of the Bar additionally chose to avail an extra-judicial and illegal remedy like cease-work. The ex-AG’s bail plea was vigorously taken up by the Bar when no lawyer was available for rest of the litigants.
Bar leaders must introspect about what message they are sending to the lawyers of the future generations by resorting to such protests. The obvious message is that lawyers have lost faith in the legal system and are hence, preferring illegal methods of redressing their grievance. Wonder what they will do to redress their clients’ grievance!
It is disheartening but true that many lawyers who get elected as Bar office-bearers do it by various means to woo lawyer-voters. Lakhs are spent only in advertising by huge banners, lobbying, networking, etc. A poor lawyer coming from a lower-middleclass background can’t even dream of contesting for the post of president of any reputed Bar association, regardless of how deserving he is for the post. The performance of the products of such kind of elections is now here for us to see. The Bar election is nothing different from other elections in the country. The Bar leaders condemning the arrest of the ex-AG was obvious because how else would they garner more votes? Any such Bar leader daring to act contrarily by appearing in court instead of joining the protest would do so only if he is prepared to forsake his prized post in the association!
However innocent or guilty the ex-AG may be, the present system leaves the State Bar Council with no other option but to stand up him because the AG is an ex-officio member of the Bar Council of that State. And if the members of the Bar Council and Bar associations do not defend their own fellow member then the lawyer-voters who have elected them would treat them as inefficient. So after being in a catch-22 situation, the Bar leaders resorted to mass appeals to ensure more and more participation in the protests.
The handful of lawyers who personally dissent to the decision of the Bar to lodge protest have no option other than shutting their mouth as they belong to a segregated minority, howsoever right or justified they might be. The Bar leaders actually represent only 40-50% of the lawyers. A meek poor junior lawyer starting his new practice can never dare to even go against the Bar associations. Further, real issues of suffering by poor lawyers in nondescript parts of the State are hardly given attention to. Even if a handful of lawyers choose to take up the issue, they usually fail to enjoy the support of the Bar. It usually has to be a big man or a big post for the Bar to stand up for it, regardless of howsoever right or wrong the big man and his actions might be! A real issue can become a nonissue and a nonissue can become a big issue overnight by these Bar leaders, and anything and everything done by them under the sun is justified and claimed to be legal!
Some media house owners had also been summoned and appeared before the CBI and were subsequently arrested by the CBI, just like the ex-AG. But why did the Bar leaders choose to support the ex-AG alone? No one, howsoever high post he might have held, is above the rule of law. Besides, mediapersons never chose to abstain from their work even for a day.
Recent incidents like some handful of members of the Bhubaneswar Bar Association setting afire a police jeep parked near the court premises and blocking traffic on the adjacent road for hours together can be said by no means to be justified and legitimate. On the contrary, it speaks ill of the judiciary as an institution at large, that includes both the Bar and the Bench. And much worse than that, acts like these most definitely shake public confidence on the judiciary which is fatal to the working of a healthy democracy.
The ex-AG might have been released on bail and lawyers might have decided to resume work thereafter. But it must be remembered that if protests such as these continue to occur time and again, the Bar will soon lose the credibility, respect and faith of the public that it enjoys. Hence, it is high time that the Bar chose what and whom to stand up for, to save its failing image.

(The writer is an advocate in the Orissa High Court)

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