Bench-Bar Relations
or
Relation between Advocates and Court
Bench and Bar are the two arms of the same machinery and unless
they work harmoniously, justice cannot be properly administered through the
courts of law. But lapses occur from both sides, which tend to stiffen their
relationship. The lawyers in the discharge of their duties have sometimes to
use expressions that may not be palatable to the court but they are never used
either with the intention of offering any insult or causing any interruption to
the proceedings of the court.
It may be noted that good behaviour of lawyers goes a long way in
their attempt to acquire justice from the court for their clients. Not only the
scholarship of a lawyer plays an important role in achieving success in the
court rather his good conduct also helps and plays effectively in this
direction. The statements of the lawyers influences the court, so they are
under moral and legal obligation to be sober, fair and cordial in their
dealings with the court. It does not mean that the lawyers have to surrender to
the improper behaviour of the judge. The lawyers have legal right to object the
improper behaviour of the judge and they are entitled to enlighten their
grievances to the higher authorities of the court. Thus, while the lawyers have
to maintain the dignity and decorum of the court, they have not to do or behave
as such, which may bring down the reputation of the court in the mind of the
litigants as well as general public of the society. In this context, the Bar
Council of India has framed certain rules for observance by the lawyers towards
the court, their colleagues and clients.
On the other hand, the behaviour of the judge towards the lawyers
also plays an important role in the due administration of justice. It is the
behaviour of the judge with the lawyers, which makes the atmosphere of the
court quite cordial and congenial. A judge has to be impartial in his dealings
with advocates. The judge should not only be free from bias or interest in any
case rather he should not be guided by the obstinacy and snobbery in his conduct
with advocates. It is so because the life, liberty, reputation and property of
the citizens are greatly influenced by the decision of the judge. The judge has
to play a very temperate and sober role in the dispensation of justice to the
society, which he can fulfil by observing sober, cordial and impartial
behaviour, towards the lawyers at large.
It is pertinent to note that the relationship between the advocate
and judge is quite delicate. On the one hand, it is important to allow an
advocate to be firm and resolute in the pursuance of his case while on the
other, the judge must maintain his authority in the court. Of course, an
advocate should avoid rule, insolent or insulting behaviour but a judge should
not be over-sensitive to the remarks made against him.
The second important duty of a judge towards the Bar, is to
respect and safeguard its privileges. The counsel has a right to insist for a
courteous and patient hearing from a judge till he is respectfully and
relevantly arguing his case before him. This right of the counsel deserves due
respect from the Judge.
The third important duty which a judge owes to the counsel is
patient hearing of the case. The judge has no business to form a forehand
opinion before the case is heard by him.
The last but not the least duty which a judge owes to the counsels
is to avoid confrontation with the lawyers in the process of argument and
examination of witnesses. The judge should not' interrupt the counsel till he
is arguing relevantly and purposefully. Till the lawyer is presenting his case
in an orderly way, there should be patient hearing and co-operation from the
side of the judge, as otherwise it would lead to miscarriage of justice.
Certain principles had been evolved by Lahore High Court in the
historic case Mahant Hukumat Rai v. Emperor, AIR 1943 Lahore 14, which were
approved even after thirty years by Bombay High Court in the Bar Council of
Maharashtra v. Shri MG. Deshpande, in 1973. These principles of law have not
been affected by any of the provisions of the Contempt of Courts Act, 1971. The
facts of these two cases were almost similar; some expression used by the
Magistrates were resented by the Advocates and those used by the Advocates were
misunderstood and taken exception to by the Magistrates.
The opinion of our Supreme Court in the context of Bench- Bar
Relations, has been clearly laid down in P.D. Gupta v. Ram Murti and others,
AIR 1998 SC 283, as follows:
“A lawyer owes a duty to be fair not only to his client but also
to the court as well as to the opposite party in the conduct of the case.
Administration of justice is a stream which has to be kept pure and clean. It
has to be kept unpolluted. Administration of justice is not something which
concerns the Bench only. It concerns the Bar as well. The Bar is the principal
ground for recruiting judges. No body should be able to raise a finger about
the conduct of a lawyer. Actually judges and lawyers are complementary to each
other. The primary duty of the lawyer is to inform the court as to the law and
facts of the case and to aid the court to do justice by arriving at the correct
conclusions. Good and strong advocacy by the counsel is necessary for the good
administration of justice. Consequently, the counsel must have freedom to
present his case fully and properly and should not be interrupted by the judges
unless the interruption is necessary.”
In Mahant Hakumat Rai v.
Emperor, AIR 1943 Lahore 14, the Lahore High Court had held that “Without
failing in respect to Bench, it is the duty of the members of the Bar to assert
their just rights to be heard by the tribunal before which they are 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.”
It may, however, be noted that the presence of professional
etiquette coupled with recognition by judiciary of the importance of an
independent Bar, will work together to minimise the possibility of
confrontation between the Bench and the Bar.
A free and fearless Bar is not to be preferred to an independent
judiciary, nor an independent judiciary to a free Bar. Neither has a primacy
over the other. Both are indispensable to a free society. The freedom of the
Bar presupposes an independent judiciary through which that freedom may, if
necessary, be vindicated. One of the potent means for assuring judges of their
independence is responsible, well- behaved, cultured and, learned Bar. Finally,
reciprocal adjustment of conduct by the Bench and the Bar is the keystone to
the smooth functioning of courts in general interest of the society.
----------------------------
Courtesy:- Legal Point Foundation
No comments:
Post a Comment