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
Very well
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