Dear Boycotting Lawyers of the Madras Bar,
Why am I not surprised that you are doing this? Why doesn't it shock my conscience? Why am I not appalled, distressed, angry? Wait. Why are you doing this?! Oh. There's an amendment to the Negotiable Instruments Act by which, in cheque bounce cases, the defaulter must, when he is summoned before the Magistrate, deposit 50% of the amount of the cheque.
Right. Lets give this some thought. An unwarranted law? Most definitely. Proceedings under the Negotiable Instruments Act are quasi-criminal in nature. This almost definitely amounts to presumption of guilt on the part of the defaulter. 50% of the amount of the cheque could amount to a fair sum in many circumstances and to make him deposit it even before trial is surely unconscionable. There are two more laws being opposed - first, is Service Tax on legal consultancy services; and second, the proposed amendment to section 377 of the IPC. Lesser said about these, the better.
But that is not the issue here. Often, as lawyers, we come across laws that we don't necessarily agree with. The Parliament's wisdom isn't infinite or infallible. The issue then is - what can we do as lawyers when we think a law is unfair?
First option: we make representations to the Government - tell them why, legally and practically, the law makes no sense. Why litigants, lawyers would be put to unreasonable hardship. Tell them why they should let things be the way they are. Mediate, negotiate. Generate public opinion on the issue through debate and discussion.Write in the newspapers. On blogs. The Government will not take the considered opinion of lawyers on a question of legal procedure lightly, would it? If there is any merit in our argument, they'll most definitely reflect on our view before they go ahead with their decision.
Second option: we challenge the validity of this law in court. We get our best representatives to make arguments on our behalf. We tell the judiciary why, legally or constitutionally, such a law is invalid. We argue on the Right to Equality, perhaps - on the inequality of treating one class of litigants differently from all others. We speak of the basic tenets of our criminal justice system. We hope the judiciary, belonging to our own ilk, will appreciate our concerns.
Third option: we boycott court for a day. We shout slogans, we destroy public property. We unleash mindless violence on our 'Learned Friends' who try attending court. We waste an entire day of precious judicial time (and further delay already delayed proceedings - for instance, our office has a 1996 revision coming up for final hearing tomorrow. After this boycott, no one can predict when it will come up for final hearing again.*). We put innumerable litigants, already burdened with an excruciating system, incomprehensible procedure and overworked courts to even more hardship. To what end? On Monday, we're working again - after that extended holiday we took earlier in the year with that boycott, we cannot afford to do this for very long, can we? The law doesn't necessarily change, the Government doesn't necessarily reconsider its stand. Do we even understand that at the end of this exercise, even if the Government reexamines this law, it will only be out of frustration and not because it wants to?
As a part of the judicial system, we are responsible for carrying out very important functions vital to the health of our democracy. Let us not make a mockery of these functions.
Yours,
Swaroop
* as it turned out, the matter has now been adjourned to 17th of August. Who knows if both lawyers will be free on that day? What if the judge is on leave? Or the matter is very low on the list and doesn't reach?
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