SENIOR ADVOCATE IN INDIA

CONFLICT OF INTEREST OF THE SENIOR ADVOCATES FUNCTIONING SIMULTANEOUSLY AS LEGISLATIVE MEMBERS

   The democracy in India is on cross roads today. The directional signs are confusing rather than challenging.

There is a glaring lacuna in our system, which I would like to share with you. Our democracy envisages for separation of powers, with mutual checks and balances. The judiciary, the executive, legislature and media are four pillars upon which the roof of democracy is raised and held.  Each organ is made accountable to other organs through constitutional mechanism. Such an accountability is founded upon the separation of powers between these organs. As these organs are independent of each others, each will be able to check the excesses or misadventure of each of other organs.

But the greatest concept of this mutual accountability will be at grave danger if all these organs are controlled by the same persons.  That’s what the grave danger faced by our democracy now. The constitutional makers had ensured that no bureaucrat enters into the legislature and function as an executive and legislature simultaneously. Whereas no such separation or restrictions are provided for the advocates! May be because, most of the constitutional makers themselves were advocates.

An advocate is an officer of the court. He is part and parcel of the judiciary, which is an independent body.

Now many advocates, especially senior advocates have taken political career and entered in to the parliament, and became part of executive also, by becoming ministers. The list is long. Now the same persons sit in parliament and pass laws, execute them as ministers and challenge it as advocates!!!!!! This is a butchering of democratic principle. They are clubbing together the pillars of democracy unto themselves, making the roof to fall. Apart from serving their self interests, such multiple roles do not serve any purpose for the nation and it's people. Even, when the parliament brought in the National Judicial Appointment Commission for fair and transparent selection of judges to higher judiciary, the advocates, especially senior advocates like Mr.Ravishankar Prasad, Mr. Kapil Sibal, Mr.Ramjetmalani, Mr.Arun Jetly, Mr.P.Chidambaram, Mr.A.M.Singhvi and many more like them had conflict of interest with such parliamentary action. Even the Attorney General, being duty bound to defend the Parliamentary Act in a judicial proceeding did not do it whole heartedly, as he had also a conflict of interest with the issue in hand.

Hence none of them came forward to support the will of the people. Their interests were best served by thwarting the people’s mandate, to vest the authorities away from the people. Even when they are members of the parliament, they continue to adorn the ‘senior advocate’ designation as a title to their names. Even though titles are abolished by our democratic constitution, it re-emerges in new forms and formats. All these so called senor advocates serves their vested interests by being part of power structure in all the organs simultaneously and serve each other!!!  No bureaucrat can be part of legislature or ministry. Before even contesting for that he has to resign, whereas these advocates do not surrender their legal practicing licence before entering into parliament or even by becoming minister. It is not understood, how a person who is not in full time professional practice can continue to hold the licence to practice... Some justification will surely be cooked out by these self serving holders of power, together with their close beneficiaries. They can make law for themselves, defend it for themselves before the judicial review and execute it as ministers. This is a pathetic situation for the people of India and it's democracy. The separation of power is demolished and decomposed, even though it is declared as the inalienable primordial and transcendental basic structure of the constitution by the Kehsavananda Bharati Judgment.

There are no checks and balances or accountability for their activities. Because, even if any of the organs take up any issue of corruption, or illegality at their parts, they are the part of the power structure in that organ. They are omnipresent and hence omnipotent too. This is totally against the constitutional mechanism of separation of powers.  Hence there is an urgent need to make these people accountable, by forcing them to choose any one of the profession/responsibility with only one organ of their choice and save the constitutional democracy.

If we do not force them to be part of only one power structure, they will continue to butcher the Indian democracy as they do now. So the need of the hour is to arise and awake on this aspect.

Adv.A.C.Philip,

Jt.Secretary(Litigation),

National Lawyers’ Campaign for Judicial Transparency and Reforms.