Having one of the largest advocate populations and perhaps the only country in the world to celebrate an ‘Advocate’s Day’, India does place a lot of prestige on the legal profession.
Section 30 of the Advocates Act, 1961 (“Advocates Act”) provides advocates/ legal practitioners the right to practice before any court/tribunal within the territory of India.
On the other side of the spectrum, the people also have a fundamental right to be represented by a legal counsel of their choice. Though it is within the right of a person to fight his own case, the philosophy for attributing the right of appearance to legal practitioners is due to the very nature of law itself; it is cryptic and technical- something that can seldom be understood by the layman without rigorous training. It is for this very reason that an individual, for most times, requires someone with the esoteric legal knowhow- someone on whom he can lay his trust upon blindly.
The story, however, is totally different when it comes to matters surrounding labour disputes.
Section 36(4) of the Industrial Disputes Act,1947(“ID Act”) puts a bar upon advocates on appearing before authorities (such as the Labour Courts and Tribunals) mentioned under the Act, without the consent of the opposite side and the permission of the authority(s) in consideration.
Clinically speaking, a bare reading of both these provisions seems to present a dilemma wherein S 30, Advocates Act allows a class of people in question (advocates) to appear before any kind of court/tribunal whereas S. 36(4), ID Act proscribes them from appearing before a specific type of court/tribunal.This contradistinction was addressed by the Supreme Court in Paradip Port Trust,Paradip and Ors. Vs Their Workmen AIR 1977 SC 36 (“Paradip Port Trust”), where it was held that The ID Act, being a special legislation, would override the Advocates Act which is a general law. With that said, nearly 45 years have passed since this judgement was delivered and the world has, to say the least, gone through a lot since then. Whether the philosophy adopted by the court in stating that either party in a labour dispute wouldn’t be benefitted by an advocate’s presence during the proceedings- stands the test of time, and whether it correctly identified the Advocates Act as a general piece of legislation – forms the basis of this article, which would be discussed in seriatim.
Presence Of Advocates In Labour Courts – A Hindrance To ‘Expeditious’ Proceedings?
In the exordium of Paradip Port Trust, the court begins by saying that legal practitioners should not be a part of conciliation proceedings because they may overcomplicate the colloquial setting of the dispute resolution mechanism
“It is reasonable to suppose that the presence of legal practitioners in conciliation may divert attention to technical pleas and will detract from the informality of the proceedings impeding smooth and expeditious settlement.” (Para 9)
Though this line of reasoning stands true with respect to conciliation, the problematic part comes in when the court uses the same explanation in elucidating the argument that the expertise of legal practitioners may expose the weaker party (the ‘workers’ or the ’employees’) to get pitted against the stronger one (the ’employers’) before the adjudicating authorities in a battle between the ‘unequals’.
The argument put forth by the court with regard to the derailment of ‘expeditious’ procedure seems to be a bit generalized and rather ad hominin towards legal practitioners on various grounds. A legal practitioner, who is well versed with the laws at hand, can not only efficiently focus the attention of the Labour Court/Tribunal to the important areas of the dispute, but also place the relevant precedents to dispose of the matter quickly. The a priori is something that cannot be effectively executed by the ‘office bearer’ or ‘officer’ as enumerated under S. 36(1) and 36(2) of the ID Act (the former provides the workman involved in a dispute to be represented by officers of the trade union and the latter provides the employer to be represented by officers of the employer’s association). A similar contention has been asserted by the Allahabad High Court in I.C.I.India Ltd. Vs. Presiding Officer, Labour Court (IV) and Ors. 1992 LLR 477 to the extent of it labeling S. 36(4) as “clearly arbitrary and violative of Article14 of the Indian Constitution.” (Para 4)
ID Act Vs Advocates Act- A Game Of ‘Special’ Vs ‘General’; Or ‘Special’ Vs ‘Special’?
The moot point involving the question of resolving the conflict b/w the incongruous provisions of the ID Act (S. 36) and The Advocates Act (S. 30) was addressed by the court in paragraph 29 of Paradip Port Trust. Here, it is important to note that one of the main factors considered by the court for assessing the aforesaid was the fact that Section 30 of the Advocates Act had not come into force during that point in time and was only bought into effect by the Government on 15th June, 2011. Anyhow, the court while deciding that S. 36(4) of the ID Act would prevail over S.30 of the Advocates Act made the following observation
The court’s stand that the ID Act is special piece of legislation is accurate. After all, The ID Act (in any context) is a beneficial legislation, enacted to provide peaceful settlement of disputes and measures for preserving harmonious relations between the employers and employees. Howbeit, concerns have been raised by experts in the past of whether The Advocates Act can be regarded as a general statute or not. In Thyssen Krupp Industries India Private Limited vs. Suresh Maruti Chougule and Ors. 2019 163 FLR 91, a two- judge bench of the Supreme Court raised its apprehension on the same and referred the matter of interpretation of Advocates Act to a three- judge bench. Though the construction of the Advocates Act as a general or special legislation completely depends upon the hermeneutics and circumstances of the situation, there are strong reasons to believe that regardless of how it’s interpreted, the Advocates Act would override the ID act in either situation:
Taking Advocates Act As A General Statute
When viewed from the perspective of taking the ID act in its entirety (i.e. in the sense of a broad but not selective interpretation) and the workers/employees as the focal point, the rule of beneficial construction would mandate the Advocates Act as a general act. The reason for this being that only a part/section of the ID act deals with the representation of advocates as against the Advocates Act, in which the community of advocates is in cynosure. The ID Act is the one whose provision is being challenged here (the primary statute in consideration), so the community that it deals with i.e. the working class should take the precedence and not the advocates.
“A later general law will override a prior special law if the two are so repugnant to each other that they cannot co-exist even though no express provision in that behalf is found in the general law.” (Para 113, point iii)
Taking Advocates Act As A Special Statute
As discussed previously, it is now clear that the inclusiveness of advocates in the industrial dispute setting would not only aid the parties, but also the court/tribunal. Then, even if a restrictive approach of viewing the legal practitioners as the principal community in question (under the Advocates Act) as against a certain section of practitioners engaged in labour disputes (as only a single section of the ID Act deals with representation/restriction of advocates as a proviso, which is not, ipso facto, the main aim of the act; it is only a subset of the statute) would not jeopardize the interests of employees/working class.
The test involved in resolving the conflict between two special statutes is somewhat more obscure as compared to the tests used for solving the general- special statute conflict. In Ashoka Marketing Ltd. AndOrs. Vs. Punjab National Bank and Ors. AIR 1991 SC 855 ,
Following this analogy, section 30 of the advocates act (the later law) serves as the non-obstante clause entitling advocates to appear before all courts/ tribunals of India as against S. 36(4) of the ID Act (the one having the inconsistent provision of barring advocates on appearing before the specialized courts/tribunals). The legislature also did not amend either of the laws, meaning thereby it had no intention of allowing the previous enactment to overshadow the later one. Hence, in this scenario also, S. 30, Advocates Act would override S. 36(4), ID Act.
Right to practice before the courts as advocates, though not a fundamental right, is in a way, a sacrosanct duty accorded to them by the society. It purports them to provide purposeful support to the individuals involved in legal trials, especially the downtrodden and the weak. Should then the bourn of this ideal be shirked in respect of some areas, where it is, especially in view of the contemporary socio-legal constructs, needed the most? Even when seen from the perspective of workers, the perpetual erosion of their right to meaningful representation before the court of law, to say the least, presents a sordid sight. It is disgraceful on the part of the law makers to still include the same archaic and age- old, unjust provisions in the new codes that they should have struck off at the first glance. By doing this, they have defeated the very purpose of enacting the new codes. Blindly imposing the same antiquated provisions in a slightly different verbatim will not magically transform a bad law into a good law. This arbitrary Lakshman Rekha of limiting advocates’ appearance before the labour authorities should be done away with. A Law cannot stand still; it must change with changing social concepts and values.