BAR BENCH RELATION

Sasi K.G.

01. Introduction

The whole purpose of adjudication in our adversary system is for a party to explicitly put his case across the table which will enable the opponent to respond appropriately to that case he has fielded, and then the Judge, as an impartial umpire will adjudicate on the issues in controversy. That and nothing more is the epitome of what justice or fair trial is all about. But the persons playing different roles in this due discharge of Justice is never regarded as equals in a judicial proceedings. The Judges shall always be superiormost, officers of the court such as persons appointed for examination, commission, receiver etc come next, the prosecutor and the advocates are the intermediary, the Police and other investigation and executing branch form the next group, the witnesses and those who give evidence are regarded next, the petitioner respondent complainant etc lower still, and the defendant respondent accused etc are the least regarded. Persons appointed for examination, commission, receiver etc are usually advocates. Thus Bar Bench Relations relate to the power equations between the top most layers of the functionaries of the judicial process.

02. Bar and Bench

The court hall where cases are conducted consists of two parts namely:

(i)                   The place where the judges sit is called as Bench

(ii)                  The place where the Advocate sit is called as Bar.

The term `Bench’ refers to the judges and the `Bar’ refers to the Advocates. Bar-Bench relation means the cordial relation between the judges and the Advocates.

The faith on the judiciary to the general public and the speedy justice mainly depends on the cordial relation between the judges and the Advocates and the role of Advocates are equally important to the judges in the Administration of justice. Rendering justice is their joint responsibility.

03. The Changing Bar and Bench

1. Broad purpose of Bench and Bar

The primary duty of Judges and the Advocates is to provide "Justice” according to the law which has to be administered in the existing society. Justice, as embodied in the law, has different contents and connotations. The functions of the Bench and Bar, due to the somewhat differing basic concepts of justice seems different in different States. These concepts have been produced and moulded by the operations of complex and interconnected, constantly acting and counter-acting, sets of factors in the course of our histories.

2. Shrunk and organically interlinked modern world

Distances have vanished in the various parts of the modern shrinking world. Space time relationships have altered vastly. Speedy and easy communication facilities have produced a uniformity in patterns of thinking, behaving, and living, cutting across all barriers of political organisation and ideology, culture, race, creed, and colour, resulting in a progressive development of uniform basic notions of justice as well as common patterns of law in various parts of the world. In this modern age of science, the problems of justice cannot be dogmatic.

3. Changing Concepts

Our concepts of Justice consist of the products of an interchange of shifting pulls and forces. New moral values, ultimately translated into law, emerge in the process. Our notions of Justice are relative and results of empirical knowledge of what satisfies certain needs believed to be basic.

4. Sense of Dedication

The spirit of consecration and dedication which impels human beings towards what they believe to be 'Justice' certainly appears to be a part of the eternal and the unchanging human nature. The urge to see justice done to others, viewed as reflections and even as parts of one's own self, is often submerged by other powerful drives and passions. The effort of the members of both the Bench and the Bar will be to overcome the passions and prejudices which interfere with such a disinterested pursuit of justice. Justice, in a sense, may be conceived of as an eternal quest of every being who deserves to be called human.

5. The Specialist's approach

The quest of the Judge and of the Advocate must be dedicated to the pursuit of justice and seeks it scientifically by employing ordered knowledge contained in the form of law and by scientific and legal tools.

6. The Judge's Persona

The persona of the Judge today in India is the ability to detach themselves from the pursuit of private gain and selfishness and rise above all pettiness, passions, prejudices, obsessions and complexes and preserve an unruffled temper even when faced with the most trying of situations. 7. What the Judge requires from the Advocate

What the Judge requires from an Advocate is assistance in the performance of his own role. The effectiveness and usefulness of an Advocate is determined by his capacity to satisfy the needs of the Judge. It is impossible for an Advocate to give that assistance unless he is equipped with required learning.

8. Power of Judge and Advocate over the Judicial Process

The power exercised by the Judge in India over the fate of a criminal or civil litigation is really enormous. The power of the advocate is rather prodigious in determining whether justice will hit or miss its mark. But Rules of professional ethics and etiquette can be violated both by advocates and judges in India without being properly punished.

9. A Source of Miscarriages of Justice

The best of institutions can be misused and human frailties cannot be entirely eliminated anywhere and judicial proceedings is no exception. Bar and Bench should be vigilant about that.

10. A Source of Legitimate Pride to Indian Citizens

Even though the present pronunciations of the Bench and the irresponsible behavior of the advocates are very often subjected to public criticism, the People of India have not started to disbelieve the judicial process in India. However Judiciary is now frequently using its contempt jurisdiction, as if fearing that it may happen in near future.

11. The responsibility of the Constitutional role

The Constitution places a very heavy responsibility on the part of the Judges as well as the Advocates who assist them, of propounding solutions which are in harmony with "Justice: social, economic, and political." The "Judicial Process" in our country includes the task of "Social Engineering too." Isolationism of Judges from the rest of society invites the criticism that they live in "ivory towers”.  As the officers of the Court, lawyers are expected to assist the Bench in administering justice. They are expected to maintain respectful attitude, towards the Bench keeping in mind that, the dignity of judicial office is essential for the survival of the society.

04.  Legacy of Bar and Bench Relationship

1. The power relation in Courts

The conflict-co-operation relationship in between Bar and Bench cannot be properly evaluated without going into its history. Before enactment of Advocates Act, 1961, it was the Court itself which was giving licence and taking it away under the Acts/Rules framed therefore.  The conduct and behaviour of lawyers were under direct supervision of the Court.  During the freedom struggle, lawyers played important part and they suffered much for their independent view against the government policy and even courts did not recognise their right to dissent with the government policy.  The colonial concept of the existence of lawyer is best described in Mahant Hakumat Rai v. Emperor, the Lahore High Court AIR 1943 Lahore 14 which reads:  “Without failing in respect to Bench, it is the duty of the members of the Bar to assert their just right to be heard by the Tribunal before which they practising.  They should be fearless and independent in the discharge of their duties, and would be perfectly right in protesting against irregular procedure on the part of any judge; and if the advocate is improperly checked or found fault with, he should vindicate the independence of the Bar.  He would be perfectly justified in insisting on getting a proper hearing and he would be perfectly right to object to any interruption with the course of his argument such as to disturb him in doing his duty to his client.  Plenary powers vested in the Presiding Officer of the Court, apart from the fact that they have rarely been used against members of the legal profession so far, should only be used to vindicate the honour of the court or to satisfy the necessities of public justice and not as a matter of course.”   The creation of courts and inner partitioning of the court’s room with high pedestal for the seat of judges, lower sitting arrangement of lawyers on chairs/benches, rear dock for the accused and similar small dock for witness smacks the colonial values and not the constitutional values of equality and human dignity.  

2. Strike by Lawyers

Strike by lawyers are normally not for gaining something for them from governments or courts, rather it aims at either for dignity of the lawyers as a class/individual or for some other cause deeply related to public justice, rule of law and factors affecting public justice.   In Harish Uppal Ex. Captain v. Union of India A.I.R. 2003 SC 739 Supreme Court held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike.  The protest if any is required, can only be by giving press statement.  T.V. interviews carrying out of Court premises banners or placards, wearing black or white or any colour arm bands, peaceful protest marches outside and away from the Court premises, going on dharnas or relay facts etc.

3. Mutuality of Bar and Bench

Division Bench of Allahabad High Court in Yash Pal Singh v. State of U.P. and Ors Writ Petition No. 1160 (S/B) of 2002 has held, “This institution can function best when both Bar and Bench respect each other’s purpose and responsibilities. A Bar functions best when its speech is untrammeled but guided by deep scholarship. A counsel serves the institution best when knows that it is not his job to win cases by all means but to assist the Court with all his mastery of facts and law. A Judge serves the institution best when he does not fear to hear but does not decide out of fear, when he fears with compassion, but does not decide out of favour.”

05. Role of the Bar to Strengthen Bar-Bench Relation

To strengthen the Bar-Bench relation, an Advocates must take the following steps.

1.         They should give  due respect to the judges and they must avoid speaking ill of the judges and the judiciary.

2.         They should help the judges in the trial of the cases by presenting the relevant law in the correct and clear manner. They should never act in such away to irritate the judges.

3.         If the judges pronounces a wrong order, they should not criticize the judges. They should try to set right the wrong order through appeal.

4.         For getting favourable order they should not give pressure or influence the judges.

5.         If the judges behavior is irritating and disrespect to the Advocates should not enter in to a direct confrontation with the judge. Through the Bar Association the matter should be discussed with the judge in his chamber and shall request to avoid such misbehavior.

06. Role of the Bench to Strengthen Bar –Bench Relation

To strengthen Bar-Bench relation the Judges should follow and practice the following.

1. Judicial Respect: Just like the Advocates are giving respect to the Judges the Judges should also give respect to the Advocates and the brethren Judges.

2. Patient Hearing: Judges should hear the case with open and respective mind without any prejudice or bias. They should act only to the interest of justice. They should give sufficient opportunity for the Advocates to present the case in full.

3. Impartiality: Judges should act impartially. They should not act in favour  of any Advocate or a party to the dispute.

4. Avoidance of Interruptions:  As far a possible, Judges must avoid interruptions while the Advocate is examining witnesses and arguing the case. Unwarranted interference and adverse comments by the Judges may upset the Advocates and thereby he may not be able to present the case properly. Interference of a Judge may be limited to the following circumstances

(i) to prevent repetition and waste of time

(ii) to check the relevancy

(iii) to get clarifications

(iv) to express courts view on a point and

(v) to promote speedy disposal of the case.

5. Proper Interpretation: During the process of administration of justice, often the courts have to interpret the Act, Rules, Codes, Regulations, Orders, Notifications, Circulars, Byelaws etc. in order to ascertain the actual meaning of the provisions or  to remove the ambiguity or inconsistency. In such cases proper interpretation should be given with the object of rendering complete justice to the parties.

6. Avoidance of Unreasonable Adjournments: Adjournments are given to afford reasonable opportunity to the parties to present the case. As far as possible cases shall not be adjourned without reasonable and sufficient grounds. Unreasonable adjournment is the main reason for the mounting arrears of cases causing hardship to the parties.

7. Speedy Disposal: `Justice delayed is justice denied’, hence cases should be disposed off as quickly as possible. When preference is given for disposal of old cases, new cases should not get into arrears.

8. Avoiding Unwarranted comments: Judges should not make any unwarranted comments in the open court about the Advocate’s lack of knowledge in the law. They should not ask any Advocate to leave the court, without sufficient reasons. Similarly, they should not ask any Advocate not to come to his court hereafter.

9. Knowing in Law: Judges should possess deep knowledge in law. They should have the ability to apply the proper law to the disputed facts and to take the right decision.

10. Independence: Judges have the primary responsibility to protect and preserve the independence of judiciary.

11. Integrity: A Judge should be honest and morally upright. He should have personal and intellectual integrity. His character and conduct should be praise worthy.

12. Industriousness: It means regular and systematic hard work and study. A Judge should get acquainted with the latest developments and changes in the law by regular updating of the knowledge.

13. Meeting of Judges and Lawyers: To strengthen Bar-Bench relation, at regular intervals meeting of judges and the Advocates shall be arranged. In such meetings the respective sides difficulties can be discussed and the differences can be sorted out.

07. Legal Duties of an advocate to the Court

Bar Council of India Rules, 1975 Part V, Chapter II Standards of Professional Conduct and Etiquette imposes many duties on the Advocates, a few among which are reproduced below.

Duty to the Court (Rule 1-10)

In the administration of the justice, the role of the advocate is to help the court to take a right decision in the dispute.

1. An Advocate shall show the due respect to the court and shall never act in any manner to undermine the confidence in the judiciary.

2. He shall not exert or attempt to exert any personal influence on the decision of the court, nor shall give any impression that he possesses personal influence with the judge before whom he normally practices.

3. He shall be always punctual in attending courts in the prescribed dress.

4. He shall be fair and frank in the court proceedings.

5. He shall not include any fact which he knows to be false in the pleadings, petitions or affidavits.

6. He shall not ask for any adjournment of a case without genuine reasons.

7. He shall not communicate privately with the judges to influence them relating to any pending case.

8. He shall not speak ill of judges or use abusive remarks about them. But, if the judge behaves improperly, it is not only the right but also his duty to report it to the proper authorities.

9. He shall not interrupt when the counsel for the otherside or the judge is speaking.

10. He shall appear in the court in the prescribed dress and his appearances shall always be presentable. He shall not wear bands or gown in the public places.

11. He shall not practice before a judge if he is related to him.

12. He shall not act or plead in any matter in which he has pecuniary (monetary) interest.

13. He shall not appear for any organization, institution, society or corporation if he is the member of the executive committee of such organization, institution, society or corporation.

08. Conclusion

The Colonial Institution of Judicial Courts have not completely evolved into a democratic constitutional set up. Thus it is evident that the values and thus relationships between the Bar and the Bench have not fully evolved as equally responsibly functionaries for the due discharge of legal justice. What the time being in force requires is a cordial and mutually respected Bar and Bench with the high aspirations of the welfare of the people and the furtherance of the statutory, fundamental and human rights of the aggrieved individuals, citizens and other persons.

During the course of the interaction between the Bar and the Bench, they should not forget their own long lasting dignity as well as the dignity of the least man whom you can imagine. Our Father of the Nation was also an advocate and his vision was so. He too was both respected and tried for contempt by the Judges of then Indian Judiciary.

xxxxx