KEYWORDS :- APPEARANCE
The issues
The new regulation, called the “Rules for presentation and conduct of proceedings in-person by parties”, was inserted through an amendment in the Bombay High Court Appellate Side Rules, 1960. In case a party, who wishes to defend his matter/proceedings in person as respondent/opponent, the court may direct such party to appear before the above committee and the above committee shall ensure and certify that such person is ‘competent’ to assist the court in person.
The practice in India has been that where even an advocate is himself a litigant and appears as a litigant in person, he addressed from the same place and in the same way as any ordinary member of the public, i.e from the witness box and wearing ordinary clothes.
The use of Local language :-A case in which litigants insisted on arguing in Gujarati. He contended that Gujarati is their mother tongue and the laws are to get justice. Hence the court should permit use of Gujarati for those who do not have capacity to engage lawyer otherwise their access to justice is foreclosed. He cited governor’s orders in Rajasthan and Uttar Pradesh, where use of Hindi is permitted.
To this, advocate general Kamal Trivedi submitted that in absence of any express order from the governor or the president, Rule 31A of the Gujarat High Court Rules cannot be interpreted to mean that Gujarati and Hindi can be used in court proceedings.
The HC discussed the issue of understanding a language and a person’s competence to assist the court at length. “It can hardly be said that merely because one has the ability to understand and to express in English, he will be competent to assist the Court. He should also have clarity of thought in his mind and the clarity of the facts of his case,” the court said.
Advocate in Person -whether an Advocate is entitled to argue in a PIL with his robes on the ground that he being an advocate, is entitled to argue with his robes when he is a petitioner in person in a Public Interest Litigation?
Whilst a member of the Bar is entitled, like any other member of the public, to appear in person, it is improper for him whether instructed professionally or not to appear also as a counsel in a case in which he himself is a party, i.e., to wear robes or to sit in counsel’s seats. It was further observed that a Barrister appearing in person has no more rights than any other complainant and he only differs from any other member of the public, when he is instructed by a solicitor on behalf of a client. The Division Bench also placed reliance on the decision of the House of Lords in the case of New Brunswick and Canada Rly. and Land Co. Ltd. v. Conybeare, (1862) 31 LJ Ch 297, wherein the House of Lords did not accede to the request of a Barrister to permit him to appear as junior counsel and be heard in his own behalf by holding that the Barrister must argue his own case in person or appear by counsel.
The Hon’ble Supreme Court in the case of Vidya Verma v. Shiv Narain reported in AIR 1956 SC 108, which was a petition under Article 32 of the Constitution for issuance of a writ of “Habeas Corpus” filed by one Mr.R.V.S.Mani, an Advocate on behalf of Smt.Vidya Verma. Mr. Mani had no power of attorney from the lady and when the office pointed out that he could not present a petition without producing necessary authority, he amended the petition and described himself as the next friend of the lady. When Mr.Mani appeared before the Hon’ble Supreme Court, he was robed. He was asked to clarify his position and when he said that he had no power-of-attorney and he was appearing in a private capacity as a next friend, he was told to address the Court without his robes. On the adjourned hearing Mr.Mani appeared in person unrobed as directed, but with Advocate on record sitting by his side, he sought permission to address the Court himself. However, the Hon’ble Supreme Court declining to hear him, unless he discharged an Advocate on record. This decision of the Hon’ble Supreme Court was relied on by the Division Bench of the High Court of Mysore and it was held that it is clear that the practice in India has been that where an Advocate is himself a litigant and appeared as a litigant in person, he must not address the Court from the Advocates’ table or with robes on, but from the same place and in the same way as an ordinary member of the public. While considering the provisions of the Advocates Act, the Division Bench observed that Section 30 of the Advocates Act confers the right on every Advocate, whose name is entered in the common roll to practise throughout the territory to which the Act extends in all courts including the Supreme Court and the Rules framed by the Court under Section 34 of the Act prescribes the mode of dress for Advocates appearing before the Court. Thus, when an Advocate whose name is entered in the rolls of the Bar Council appears before the Court as a litigant in person, he is not exercising any right under Section 30 of the Act. Therefore, the Division Bench held that there is no question of the right of the petitioner under the Act arose; no right conferred under the Act has been denied to him. It was further pointed out that the word ‘practise’ means ‘the exercise of a profession’ and when an Advocate is a litigant in person, he does not practise his profession and therefore he cannot be permitted to argue with his robes on from the Advocates’ table and he can address the Court from the same place and in the same way as an ordinary member of the public.
In the case of Major K.Mathews (Retd.)., vs. Registrar General, High Court of Judicature at Madras & Ors., reported in AIR 2003 Madras 411, similar question arose for consideration. The petitioner therein was appearing party-in-person and he filed a writ petition to declare that an ordinary member of the public like him who is conducting a case, party-in-person, he is entitled to be seated in the Court and to make use of the table available in the Court room and such liberties should not be interfered with or questioned by the members of the Bar. His Lordship Mr.Justice P.Sathasivam, (as he then was) after taking into consideration the decision of the Division Bench of the Mysore High Court in the case of T.Venkanna, (supra) held that litigant/party appearing-in-person before the Court for their own causes cannot claim the same privileges/rights being given to the members of the Bar/Advocates, and they cannot occupy/use the chairs, tables provided for the Advocates, however, they (parties appearing in person) are entitled to be provided with a convenient place to address the Court and highlight their cause and with such observation, the writ petition was disposed of.
The High Court of Gujarat in the case of Vinayakrao S.Desai vs. Interlink Petroleum Ltd., & Ors., reported in MANU/GJ/0250/2001, took a similar view by placing reliance on the case of T.Venkanna (supra), and Vidya Verma vs. Shiv Narain, (supra), and held that a person cannot appear or plead before a court of law in dual capacity, one as party and other as an Advocate and if an Advocate is appearing as party-in-person, he should in order to maintain the norms and decorum of the legal profession, appear before the Court of law as party in person putting off the band and robes prescribed for legal practitioner.
The word “practise” connotes exercise of a profession and when the petitioner an Advocate is a litigant in person, he does not practise his profession and therefore, he is not entitled to argue his case with his robes[ Madras High Court R.Muthukrishnan vs Union Of India on 21 March, 2014]
In such circumstances, we hold that the respondent herein, who has been charged with criminal contempt of this court, is not entitled to appear in the robes of a lawyer. His refusal to remove the robes of a lawyer and address this court as a party in person, in our opinion, aggravates the contempt committed by him. [ Kerala High Court Suo Motu vs Adv.Sri. C.K.Mohanan on 1 November, 2016]
