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THE ADVOCATE (AMENDMENT) i found to be only in these two cities in BILL, 1980 occasioned a certain amount of controversy. Parliament finally considered it desirable to do THE MINISTER OF LAW, JUSTICE away with the institution of attorneys so that AND COMPANY AFFAIRS (SHRI SHIV there could be a unified bar and only one class SHANKAR): Mr. Deputy Chairman, Sir, I of legal practitioners, namely, advocates. In move: order to give effect to this object, the Advocates (Amendment) Act, 1976 was "That the Bill further to amend the passed which abolished the class of legal prac- Advocates Act, 1961, as passed by the Lok titioners known as attorneys and the pre- Sabha, be taken into consideration." existing attorneys became advocates. However, for the purpose of determining their Sir, this Bill is a very short one which seniority as advocates, their earlier experience seeks to make two small amendments to the and standing as attorney was not taken into account. This resulted in the anomaly of very Advocates Act, 1961. The other House found many senior attorneys, who had been it to be non-controversial and I hope that the practising as such for several years and were as position would not be different in this House. well qualified becoming junior to those advo- cates who joined the legal profession very The first of these amendments is designed much later and whose standing in the to do away with an anomaly which has come profession was less. The views of the Bar to light recently. As the House is aware, the Council of India were sought on this anomaly dual system was in force on the Original Side and the Bar Council agreed that it would only of the High Courts of Calcutta and Bombay be right to give the attorneys who became for several years. This meant that an advocate advocates an appropriate seniority having was required to be instructed by an attorney regard to their earlier standing in the legal who alone was entitled to appear on the profession. It is, therefore, proposed to amend Original Side. The attorney was, however, not sub-section (3) of section 17 to provide that the entitled to plead before the court. seniority of an atterney enrolled as an advocate (Interruptions). The attorneys were a class of shall be determined in accordance with the practitioners. (Interruptions) . date of his enrolment as an attorney. DR. RAFIQ ZAKARIA: ''Maharashtra)- The work of the Government of India in the Mi Bhupesh Gupta, your Special Mention is Supreme Court and the High Courts has gone. considerably increased. And in order to ensure that cases are properly defended, it had SHRI SHIV SHANKAR: The attorneys were become necessary to appoint a second Addi- a class of practitioners. (Interruptions) tional Solicitor-General. The terms and conditions of appointment of the second SHRI NAGESHWAR PRASAD SHAHI Additional Solicitor-General as well as his (): Mr. Deputy Chairman, sir, position in the warrant of precedence are the kindly ask Dr. Zakaria not to interrupt the same as that of the Additional Solicitor- proceedings. General. His functions are also the same. It is, therefore, both proper and necessary that MR. DEPUTY CHAIRMAN: Order, statutory recognition should be given to the please. office of the second Additional Solicitor- General so that he SHRI SHIV SHANKAR: The exis-tance of the dual system which was 263 Advocate (Amdt.) [] Bill, 1980 264

[Shri Shiv Shankar.] may have pre- idea of the role that the advocates could and audience immediately after the Attorney- should play so far as the poor litigants of this General, the Solicitor-General, and the country are con- If all these things together Additional Solicitor-General, It is, therefore, could have been brought about in a proposed to amend section 23 of the comprehensive amendment, then it would Advocates Act to give to the second have been much better. In any case, Sir, the Additional Solicitor General a right of pre. scope of this Bill is very limited, and that audience immediately after the Additional limited amendment is moved to achieve the Solicitor-General and before the Advocates- limited objective. And I support this limited General of the States. objective. And I also commend acceptance of the Bill by this House. Thank you. Sir. I would, therefore, commend this measure to the House. SHRI MAQSOOD ALI KHAN (Kar- nataka): Mr. Deputy Chairman, Sir, as has The question was proposed. been explained by the hon. Minister of Law, SHRI NARASINGHA PRASAD the Bill does not call for any elaborate NANDA (Orissa): Mr. Deputy Chairman, Sir, discussion. But I take this opportunity to the basic object of this Advocates express myseli upon certain points that (Amendment) Bill has been described by the usually agitate the minds of lawyers and the hon. Minister in details in its historical context general public. and I accept and support it. But what I would like to point out to the hon. Law Minister in Sir, the fundamental question that arises this connection is that this kind of piece-meal today is that after about 33 years of amendment to an important Act like the Independence, we have just now been Advocates Act should not have been there. criticising the judiciary or the lawyers, and The idea that was expressed at various stages that dispensation of jus, tice in the country is of the Consultative Committees and elsewhere very expensive and time-consuming. We have was to bring about a com. prehensive been making laws and I think, Sir, thousands amendment to this Advocates Act. There are and thousands of laws we have made, whether so many things to be done with regard to the it is in our Parliament in Delhi or in the provisions of the Advocates Act, and so many various State Capitals, but hundreds and suggestions have been made as, for example, thousands of laws have been made. The to do away with the classification between the question is who is there in the country who is attorneys and the advocates. And" that has getting benefited by such laws? We speak of been done now. Then there is the question of the common man. How far can the common juniority and seniority. The present man get a law to his benefit made or applied? amendment seeks to set right the problem of Law today, as the procedure stands, is a juniority and seniority, and to give recognition necessity for the rich man, for the rich; the to the second Additional Solicitor-General and poor cannot afford to go to courts. We have to give him the necessary legal sanction for spoken, Sir, so many times about aid to the getting his job done. It is all right so far as it poor, about legal aid to the poor; but hew far goes. But the main point that I would like to has it been effective? What about the court fee make is that there should be some serious itself? What about the other things that we thinking about the changes to be effected in have to pay in the courts? Have we ever the Advocates Act consonant with the change thought that this judicial system that we are in the times, consonant with the requirements now having in the country is not suited to our of the society, consonant with the desire for genius, that it does not conform to our bringing about socio economic traditions to all, though it is elaborate? It has transformation, consonant with the idea of been built up for over 100 years. I have seen giving legal aid to the poor, and consonant that even with the 265 Advocate (Amdt.) [ 18 NOV. 1980 ] Bill, 1980 266

in Canada and' America there have been many cases, the decisions have been reversed. references to Indian' precedents. They have This is the system we are having. Why to praised them. And it is said that the Indian blame anybody—whether the judges or the judicial system is the most elaborate system lawyers? We are here to make laws, make in the world. Not only it is the most elaborate laws simple. Even take the case of sales tax system, it is the most intricate system also Act. You ask a petty vendor what kind of and it is the most expensive system also. trouble he is put to. Take the income tax Act. You ask an assessee what trouble he is put to. You cannot understand these laws or the Now that the hon. Law Minister is there and intricacies of these laws. AIL these laws are he is thinking mostly in terms of the common so complicated; they are so intricate that a man 1 think a change, a complete change is special koowledege is required. So unless we required in this country. Sir, very long back in try to simplify these laws, unless we try to the days of Pandit Jawaharlal Nehru, when we simplify the procedures, we would not be able were thinking of Nyaya Pan-chayats, we to succeed. For a common man to get his due thought that justice should be dispensed at the or to get a relief, is a dream. I do not know level of villages itself and the people should when this dream is going to be fulfilled. I be taught how to dispense justice, how to would, therefore, stress—taking this make the panchayats hear their grievances, but opportunity—upon the Law Minister that we all that was kept" in a cold storage. Nothing must make a move in the right direction, try to was done. They say that law is nothing but simplify the laws, for which an overall change commonsense. But I can say that hardly any is required, and we must try to see that the man of common-sense can understand law as laws are simplified and the procedure is it is. It is such a technical subject that unless simplified. Thank you. you get assistance from experienced lawyers, you are not able to win your case in courts. And criticism is made against the lawyers. They say that this set of people or this class of people are responsible for lengthening the procedure, for seeing that justice is not made. But whose creation they are? They are the creation of the judicial system that we are having in this country. If you do not take the assi-tance of lawyers, what will happen? I know and the Law Minister knows it fully well Sir, in Karnataka, where under the ceiling laws we debarred the lawyers from appearing before tribunals, all the tribunals went on taking up the cases of these land 3-00 P.M, ceilings. They decide the cases. Ultimately when these cases go in appeal to the High Court under Article 226 of the Constitution, I must say that the High Court in very many cases has criticised the way in which these Tribunals proceed with the cases, and they said that the Tribunals had no legal competence; they do not have any legal acumen to go through these cases and in very

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"Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise at the territories to which this Act extends,—

(i) in all courts including the tie Court; (ii) before any tribunal or person legally autnorised to take evidence; a:;d

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(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise."

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ed the attack on Parliamentary democracy by the Maharashtra Chief Minister, Mr. A. R. Antulay, and urged the President to examine whether he should be asked to resign under article 355 of the Constitution for its defiance. The resolution adopted by voice vote at the meeting of the Bar Association in New Delhi said, Mr. Antulay was bound by the constitutional oath of his office to bear true faith and allegiance to the Constitution with parliamentary democracy as its basic structure. The President of India must take note of the defiance of the Constitution by the Chief Minister of Maharashtra and should examine whether under article 355 of the Constitution Mr. Antulay should not be asked to resign so that the Government of Maharashtra could be run in accordance with the Constitution, the resolution said."

Now, Sir, you will ask how the advocate issue SHRI BHUPESH GUPTA (West Bengal): comes in. It does come in because here our Sir, this is a simple Bill. But I begin by advocates are rendering a good service to the congratulating the Supreme Court Bar nation. The Supreme Court Bar Association, Association, an organisation of Advocates. It that body of advocates, I must say, has is only fit and proper that we express a word rendered an excellent service to the nation by of good cheer for our Advocates, when we are coming out in a forthright manner and I hope discussing problems relating to them. They that the other Bar Association in the country, are doing a very good job. We may have the High Court Bar Associations, the District some words of criticism also later. Bar Associations, etc. will follow suit.

Sir, I invite your attention to a news item It is a wonderful example of leadership that published almost in all the daily papers of they have given. I am not one of those who Delhi today. I have got one paper with me. only criticise our lawyers. When they do good Other papers are also here. This news item is things. I recognise them and I would expect under the caption "Defence of Constitution by them to follow them up. I only wonder Antulay alleged". That is the caption. Mr. whether the Bar Council should not consider Antulay himself is an Advocate. But he has the question of disqualifying Mr. Antulay now become an Advocate of the Presidential from the membership of the Bar. Well, if the system, having been, during the emergency, British, for their wicked imperialist cause an Advocate of the caucus. He has changed could disqualify even men like Mahat-ma his advocacy from the caucus to the Gandhi, for ignoble purposes, why should we Presidential system. 1 do not know, when this not, for the protection of democracy, for the is averted, v:hat he will advocate. But, here, I dignity and honour of our parliamentary may congratulate our Supreme Court Bar system, disqualify or why should not our Bars Association. The news item reads thus: disqualify men like Mr, Antulay?

"The Supreme Court Bar Association on Monday strongly disapprov- 287 Advocate (Amdt.) [RAJYA SABHA] Bill, 1980 288

SHRI SHIV SHANKAR: For your admiration for her. She has rendered a information, he is not a member of the Bar service, wittingly or unwittingly—that I do Council. (Interruptions). not know that you better find out—by exposing Mr. Antulay. And you read this DR. RAFIQ ZAKARIA: He is. thing, sir, such people are in the Bar; they become Ministers; they become Members of SHRI SHIV SHANKAR: He is not. Parliament. Sir, I think, you were in the (Interruptions) House during the emergency. Were you not in the House?

SHRI BHUPESH GUPTA: He is a SHRI KALPNATH RAI (Uttar Pradesh): barrister. I am only asking the Bar. I am also He was. a member of the Bar. (Inter, ruptions). Please understand this. I am only asking the Bar SHRI BHUPESH GUPTA: You know very Council. I cannot ask the Middle Temple or well, Sir, that we brought a charge that some Inns of Court to disqualify him. Now, Sir, I people in the Congress Government at that come to another thing. (Interrupt tions). time or around the caucus or inside the caucus had drafted a constitution for the Presidential MR. DEPUTY CHAIRMAN: Order, system and got it circulated. I even said that it please. Yes, Mr. Bhupesh Gupta, you please had been done in the Parliament House. continue . . . Everybody in those benches denied it.

SHRI BHUPESH GUPTA: It is not my SHRI KALPNATH RAI: It is not correct. habit to continue when the Minister is speaking. (Interruptions). Now, Sir, why had SHRI BHUPESH GUPTA: I am telling this Bar Council become agitated? They you, keep quiet. Mr. Kalpnath, why are you became agitated and rightly so. There we have getting up? You have become now the not the barrister, but a barrister's wife, an General Secretary. At that time you were not. advocate's wife, also coming from Bombay, Everybody said it. I said it and I wrote it in who had an interview with the mighty Chief the 'New Age' the journal I edit. I said in Minister of Maharashtra. Perhaps some day Parliament again and again. I wrote in the he will claim that he is a new version of pamphlets that our Party brought out. I something like Shivaji. Now, coming to Mr. charged the Government that some people Antulay: Mrs. Fatima Zakaria talks to Mr. A. around the throne preparing a draft R. Antulay, the Chief Minister of Maharashtra clandestinely and circulating it to prepare the It has appe- ground for a change over to the Presidential ared in the "Sunday Review" of the "Times of system, which was, of course, aborted. Mr. India", with a big portrait of Mr, Antulay, Antulay was sitting somewhere here. They Barrister, Chief Minister and formerly of the said, "No, no. We have not done it. We do not caucus. know anything about it," Now, what Smt. Fatima Zakaria inform us? A very clever lady. And I might take my hat off to that lady. Now, Sir, what does he say? I am grateful to that lady, cur friend's wife, Mr. Rafiq Here, the question from Smt. Fatima Zakaria Zakaria's wife, for enlightening us., I have no was, and I quote: "The recent lawyers' quarrel with her. meeting in Delhi has once again sparked of a controversy over what would be the best form DR. RAFIQ ZAKARIA: She is an editor of Government." I think you were one of the and a journalist in her own right. first in the Congress Party to

SHRI BHUPESH GUPTA: She is certainly not an editor in your right. Yes, I agree with you. I have great 289 Advocate (Amdt.) [ 18 NOV. 1980] Bill, 1980 290

have mooted the idea of the necessity for a please don't ring the bell. Now, I would not change in the system. Was that not during the say very much. 1 will be returning to this emergency when a draft of a new Constitution subject in some other form notice of which has was prepared and was circulated? It was then been given. Finally, what so-called rumoured that you were the author of the parliamentary system and did he say in the draft. Note the question. Wonderful lady I interview? He has said: "I am firmly of the must, say. opinion after studying the various Consti- tutions of the world and the functioning of our SHRI KALPNATH RAI: Do you also own Constitution in the last 30 years—when appreciate ladies? did he study all these things I do not know— that it is high time that we discarded the so- SHRI BHUPESH GUPTA: Do you think called parliamentary system and adopted a you only admire ladies? presidential form of Government, which is MR. DEPUTY CHAIRMAN: It is a news most suitable to our needs so as to bring about that you are also admiring ladies. rapidly the socio-economic changes that our country badly needs" Wonderful. In this SHRI BHUPESH GUPTA: Now, listen to connection advocates are being mobilised the reply. Here I am quoting Mr. Antulay. now. "That is true. I had prepared the draft. You Mr. Antulay on the 14th October address a note the first person singular. He said, "I had meeting of the Bombay lawyers where he prepared the draft" "You mentioned in 1976." spread the same idea. In reply to a question on Now, Bhupesh Gupta stands indicated in the the subject, the Law Minister said that he got House on the basis of the confession of the a message, something on the teleprinter, but real culprit. (Interruption) I am reading from the message did not say that he was pleading this for your benefit. He said, "That is true. I for a presidential system at that meeting. But had prepared the draft" "You mentioned In here he was pleading for it. Now, this is very 1976." But "I had proposed the Presidential serious matter. Advocates are being system of Government as it existed in the mobilised.... United States today with certain modifications. I had also to some extent MR. DEPUTY CHAIRMAN: A statement borrowed from the French system. I thought is to be made at 4 o' deck, so please conclude the proposal contained in my draft would be now. far more suited to our country than the present system. Now, here is an advocate. In the SHRI BHUPESH GUPTA: My House, when he was not the Chief Minister, statement is far more important than the he did not have the courage to get up and say, statements that they make. "Yes, Mr. Gupta, I had prepared the draft." MR. DEPUTY CHAIRMAN: Please Why not? At that time, the emergency was on conclude before 4 o'clock... their side, the caucus was having a roaring business, and Mr. Antulay was the staunch SHRI BHUPESH GUPTA: I am rendering supporter of the caucus. Why did he not have a service to the nation. Of the statements that the courage to own up? What is the point in the Ministers make, some of them can be put owning up four years after? Such a man you into the pipe and you can smoke. I am not have posted as the Chief Minister of one of the talking about them. greatest and noblest States of our Indian Now, last October, a meeting was Union. (Time bell rings). Sir, organised in New Delhi, a lawyers meeting, J195 RS—10. an All-India Lawyers Conference—a flamboyant title. 291 Advocate (Amdt.) [RAJYA SABHA] Bill, 1980 292

i THE MINISTER OF STATE IN THE 4 P.M. DEPARTMENT OF PARLIA- And Mr. Antulay had gone to MENTARY AFFAIRS (SHRI SITA- the National Integration Council RAM KESRI): Of eminent lawyers. Meeting as Maharashtra Chief SHRI BHUPESH GUPTA: Yes, one of Minister. We expected that he the sponsors of the conference was the would speak about the problems of leader of the Bar, but that is the Oberoi National unity and national integra Bar. He happens to be the Director of tion in Maharashtra. But that gentle the Oberoi Hotels, which runs so many man, my young friend Antulay, bars. He is a member of the bar all right supposed to be a go-getter, began his but he is the leader of the Oberoi bar. speech by saying—of course he paid Under the circumstances this conference tributes to Shrimati ; was organised to push the idea of the pre- that is a common way which every sidential system, perhaps. But there body does; I am therefore not bother was a fiasco. I am not bothered about ed—that the country should have pre these puppets, those who go in for sidential system, to make Shrimati command performance, nor these Cin- Indira Gandhi the President. I do not derellas or the cronies or the manipulated know how Shri Sanjiva Reddy was creatures. They are all around us feeling. But I do know in 1976 abounding in society. But I am deeply when the proposal was made for a distresed to find that the Prime Presidential system, I know it for a Minister of the country went to fact, Fakhruddin Ali Sahib, the then inaugurate that conference, indirectly President of India, nearly got a heart to bless it, if not inciting the lawyers attack___ to go ahead with it. Does she not have any other job? Is there no SHRI HARI SINGH NALWA (Har- other function for her to inaugurate? If yana): On a point of order, Sir, Ma>-I ask she says she has none, I will arrange some the hon. Member what is its relevance to for her. I would not use the words Oberoi the present Bill? Sir, Mrs. Gandhi has bar leaders and others. They have been become a phobia with these people. They brought together, packed in a body, in have fought against Mrs. Gandhi when order to indulge in that cacophony in she was out of power and they are support of the demand for the presidential fighting Mrs. Indira Gandhi now when system and the Prime Minister goes the whole country is behind her. They to open it, inaugurate it. Has the Prime could not do anything against her when Minister done any good thing for herself she was put in jail. . {Interruptions). I by doing any thing? She should ponder want to know what is the relevance of Ids over it. I think she disgraced herself. Site speech? He is such a seasoned and old has damaged herself. She has Parliamentarian and he is talking damaged our institutions. The Prime irrelevant things, wasting the time of the Minister is bound by the oath of office to nation. They should help the protect and preserve the Constitution Government. (Interruptions). just as Mr. Antulay. For the Prime MR. DEPUTY CHAIRMAN: Please Minister of the country—I do not take your seat. bother about Mr. Antulay—to go to such functions and do something SHRI HARI SINGH NALWA: They which contradicts the oath of office is should help the Government. I want to improper. Well, you do not preserve or know what benefit we are getting from protect the Constitution or defend the his speech. He is wasting the time of the Constitution by egging on people who House and of the nation. I would not subvert Parliamentary system and allow them to waste the time of the replace it by a Presidential system. I do nation. I have come to set them right, to not know what the lawyers will say. put them on the right path. They should help the poor, help the Government to remove 293 Statement by [ 18 NOV. 1980 ] Minister 294 poverty from the country, instead, they distress to India. From the very beginning are doing harm to the farmers, they are of the war, India has made it clear that it doing harm to the nation. I would request has not taken and will not take sides and him to speak to the point.. . has expressed its anguish at the loss of (Interruptions). life and property being suffered by both sides. India has consistently held that dis- MR. DEPUTY CHAIRMAN: Mr. putes* (between countries should be Bhupesh Gupta, please conclude now. settled bilaterally and by peaceful means SHRI BHUPESH GUPTA: The without recourse to war. We have also intervention has been well-made and I hope expressed our deep concern that Shrimati Indira Gandhi will make him if prolongation or escalation of the present not the Deputy Prime Minister, at least a conflict could have grave implications on Deputy Minister , I appreciate it. Sir,, I do both regional and global peace and not object to it beacuse if such security. interventions against Bhupesh Gupta help my friends here, why should I object? Sir. when the first news of the beginning of the war came on 22nd SHRIMATI USHA MALHOTRA: September 1980, I was in New York (Himachal Pradesh; But... (Interruptions) for the UN General Assembly which . had already been in session since 16th SHRI BHUPESH GUPTA: No, no, September 1980. I immediately held you are not doing. Sir, we had heard of consultations with several other the Charge of the Light Brigade. We had Foreign Ministers, including those of been accustomed to it. Now we are countries that are currently members having a charge of the ladies brigade. of the Security Council. The general MR. DEPUTY CHAIRMAN: Mr. feeling of concern voiced in these Bhupesh Gupta, you may now take your consultations resulted in the Security seat. Council meeting on 28th September 1980. The resolution adopted by the SHRI BHUPESH GUPTA: All right I Council, however, did not succeed in will sit down and after this, I will securing a cease fire. I also took the resume. farliest opportunity of meeting the Secretary-General of the United Statement by Minister Nations with whom my discussions centred around the manner in which the UN could act in resolving the Iran.Iraq conflict conflict. THE MINISTER OF EXTERNAL AFFAIRS (SHRI P. V. NARASIMHA I also met the Soviet Foreign Minister, RAO): Mr. Deputy Chairman, Sir the Mr. Gromyko, and the U.S. Secretary of House is aware that for the past few years State Mr. Muskie. I was assured that both strains have be|en evident in the relations the U.S. and the USSR would remain between countries in West Asia. This has neutral in the Iran-Iraq conflict. These caused us much anxiety and it has been decisions naturally helped in preventing India's endeavour to prevent any this conflict from the danger of destabilisa-tion 'of the entire region.. escalation and possible enlargement. Since Parliament rose in August, a Since the resolution of the Security further unfortunate development has Council could not bring about a cease taken place in the form of an open armed fire, the logical step was to find a conflict between Iran and Iraq. solution which included a cease fire The continuing war between Iran and coupled with a process of negotiation to Iraq, • two countries with whom India resolve the causes of the conflict. This. I has close and long-«tanding ties, is a regret to say, has eluded the international matter of deep concern and community so far. The