The Bench, The Bar, And The Balance

The lawyer stopped, turned around to whisper to his client, and then said: "Your Lordship may impose a cost of Rs. 20,000/-", and continued to argue.

I am not sure, who the judge was. I am not sure who the lawyer was. This corridor legend has its versions in almost all High Courts of the Country. The names, the quantum of costs, and the size of pocket of the client does change from place to place, from time to time.

This indicates that impatient judges and brusque lawyers are not of recent origin. The reports from the lowest court to the apex temple of justice in the country indicate that such legends will linger on.

A patient hearing is the sine qua non of fair hearing. It is not as much the ultimate decision, but the disposition of the Judge during the hearing that makes and breaks his repute. Honor of the Judge is most important since that is the edifice of prestige of the judiciary. More often than not, it is an impatient hearing that leads to complaints from the bar, than an adverse judgment.

It was Lord Chief Justice Hewart who gave us the most quoted aphorism, "Not only must Justice be done; it must also be seen to be done"^[1]. It is no accident that it forms the first sentence of "Restatement of Values in Judicial Life"^[2], adopted by the Full Court of the Supreme Court on 7^th May, 1997.

Patience on the bench does not find an explicit mention in the Restatement of Values. However, Canon 3 of the Code of Conduct for United States Judges specifically mandate the judge to be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others. It further bids the Judge to "accord to every person who has a legal interest in a proceeding, and that person's lawyer, the full right to be heard according to law"^[3].

Cutting off an argument by a lawyer on the ground of paucity of time is not a good way to demonstrate patience. To threaten a lawyer with action for contempt or imposing costs for the counsel being long with his argument is worse. Cancelling bail of the accused, rejecting request to condone absence, on the intriguing ground of the lawyer 'misbehaving in court' is total ignorance of role of the judge.

True, the courts are hard pressed for time. It can ill afford to compromise efficiency of the system to satisfy the forensic aspirations of individual lawyers. The Code of Conduct of US Judges specifically addresses this issue. "The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Courts can be efficient and businesslike while being patient and deliberate"^[4].

An effective court room argument must be a discussion. Interaction between Judge and Lawyer is necessary. But then the Judge need not convince the Lawyer about the view of the Bench. The requirement is other way around. What is required in such circumstances is that the Lawyer must be able to complete his argument without hindrance. Interludes from the Bench ought not to be argumentative, but those which enable clarification or exposition of the argument raised from the Bar.

I remember a judge of the High Court of Kerala, who when confronted with a lawyer who is on an unacceptable path of argument, would sit back, pivot his chin on his palm, and close his eyes. The Lawyer can continue for any length of time. But given the posture of the Judge, the lawyer would cut short the argument himself in desperation. The technique of permitting the lawyer to have his say without the interruptions from the Bench is a good means to regulate a lengthy argument. But I submit with reverence that minus the "inverted pot" posture, it would have satisfied Lord Chief Justice Hewart. However, the modus is comparatively better than threatening the Lawyer with contempt or costs for arguing further.

A minority of judicial officers feel that there should be some amount of subservience from the side of the Bar. Justice Oswald said;

"It is obviously, however, in the interest of Justice that an Advocate should be secured in the enjoyment of considerable independence in performing his duties. An over subservient Bar would be one of the great misfortunes that could happen to the administration of Justice in England".

Learned author Sri. V.G. Ramachandran quotes these words to say that it applies to India as well^[5].

Recently, in one of the video conference hearings, a counsel was asked by the judge "Would you want me to decide the matter today without the counter from the other side". Counsel who was insisting for an early hearing said, "No, but time may be granted as last chance". Adjourning the case, the learned judge was seen commenting with a chuckle, "Had he said yes, he would have walked in to a trap", to someone in his room, probably his stenographer! Lord Chief Justice Hewart would have turned in his grave. It is necessary to strike a balance, or at least press mute. A court room is a place to decide Lis. It should not be an arena to decide who is better, the judge or the counsel.

The psychological analysis made by Justice R. V. Raveendran^[6] is as enlightening as it is straight forward.

"Everyday, everyone, inside and outside the court, address Judges as 'My Lord' or 'Your Honour'. Everyone bows, greets and salutes them and shows them respect and deference. Day after day, they decide the fate of litigants, by granting and rejecting submissions, arguments, complaints, requests and prayers. They can send people to jail. They can declare people to be paupers. They can decide who is right and who is wrong. They have captive audiences in their court, who give appreciative nods and approving smiles at every witticism and remark. It is but natural that after some time, some Judges start thinking that they are personification of wisdom, knowledge, and intelligence; and more importantly, their word is law and their wish a command. Humility gradually fades from their mind and demeanor".

The other side of the coin is the disrespectful lawyer. Sri. V.G. Ramachandran recounts a story of Mr. Blank^[7], a 'Scotch Advocate', who was confronted with a Judge who said "It seems to me Mr. Blank, that you are endeavoring in every way to show your contempt for the Court". The quick reply was "No Your Lordship, I am endeavoring in every way to conceal it". The occasions where Lawyers like Mr. Blank miserably fail in their endeavor seems to be on the rise. The learned author observes;

"Heated passage at arm between Bench and Bar may sometimes enliven or mar the dignified atmosphere of Courts of Law. Sometimes it is the result of caustic remarks of a Judge; sometimes it is due to bad manners of an over-enthusiastic Lawyer; circumstances may render a Lawyer loose his equipoise and he may use indiscreet and disrespectful language as to offend the seat of Justice. Sometimes it may be at the needless provocation of a bullying and peevish Judge. But a counsel must be wary; His calling requires him never to err on the wrong side of proprieties. He must resist all temptations to cross the line of respectful attitude towards a Judge, however underserving the latter may be"^[8].

To maintain dignity of language without compromising the force of submission is a fine art. It involves constant learning. The necessity to maintain respect in tone, tenor and content of the submission before a court is not because the Advocate is Subordinate to the Judge, but because it is necessary for effective functioning of the system to which the Advocate too is a part. In one of the extreme cases in recent past, a lawyer of Allahabad, aggrieved apparently by some orders of the Chief Judicial Magistrate in cases filed him, barged in to the chamber of the CJM with some Junior members of the Bar, hurled abuses on the Magistrate, and threatened to beat him, asking why he issued such orders. The matter finally reached the Supreme Court, and affirming the penalty imposed by the High Court in exercise of powers under the Contempt of Courts Act, it was held:

"In our opinion, an advocate is duty-bound to act as per the higher status conferred upon him as an officer of the court. He plays a vital role in preservation of society and justice delivery system. Advocate has no business to threaten a Judge or hurl abuses for judicial order which he has passed. In case of complaint of the Judge, it was open to the advocate to approach higher authorities concerned but there is no licence to any member of the Bar to indulge in such undignified conduct to lower down the dignity of the Court. Such attempts deserve to be nipped at the earliest as there is no room to such attack by a member of noble profession.

The role of a lawyer is indispensable in the justice delivery system. He has to follow the professional ethics and also to maintain high standards. He has to assist the court and also defend the interest of his client. He has to give due regard to his opponent and also to his counsel. What may be proper to others in the society, may be improper for him to do as he belongs to an intellectual class of the society and as a member of the noble profession, the expectations from him are accordingly higher. Advocates are held in high esteem in the society. The dignity of court is in fact dignity of the system of which an advocate being officer of the court. The act of the advocate in the present case is not only improper but requires gross condemnation."^[9].

A school of thought which brands the advocates who do maintain the aloofness from quarrel with presiding officers as meek and over-submissive does have substantial fanfare at the Bar. The said thought does not appear to be of recent origin either. Sri. V.G. Ramachandran refers to the words of Eardley Norton, the legendary Barrister who adorned the High Courts of Judicatures at Madras and Calcutta, whose career was replete with proceedings of contempt against him. He reportedly said "I have often been asked as to limits to which counsel are entitled to go in a repartee to the Bench; I am not competent, being only at the Bar to define where judicial courtesy ends and its converse begins. But if a judge elects to take off his gloves for the purpose of foul blow, I apprehend counsel is not bound, even if he goes to church twice on Sundays, to turn the other cheek". But then the retorts of the great Barrister were always as noble as they were fearless. Sri. V.G. Ramachandran therefore adds a caveat

"Junior members of the Bar should develop the legal capacity of a 'Norton' before they venture to emulate his external attitudes! Otherwise they will make a very poor show indeed and get hauled up repeatedly for contempt of Court to their cost. The Young Aspirant should therefore observe the golden mean. A dignified bearing, a dignified protest couched in Court Language is all that is called for whenever he crosses sword with the Bench"^[10].

Words of David Pannick, should be kept in mind by all in the legal profession when balance as an advocate is threatened.

"But however irrelevant to the issues the comments expressed by the judge, however extreme the provocation coming from the direction of the Bench, however incompetent or prejudicial to a fair trial the performance of the judge, there are limits to what an advocate – whatever his seniority – can say and do, even on instructions"^[11].

What those limits are, and how to couch your responses within the four bounds of this imaginary wall, can only be gained by experience. It would do better to bow and walk calmly to the appellate court than trying to correct a judge after the judgment has been pronounced.

However, even if a lawyer does make the mistake of being discourteous, the court cannot decide to deviate from the law. The reasons for judicial orders cannot be the conduct of the advocates. It must be based on firmer grounds. A party cannot certainly be punished for engaging a lawyer of his choice. That is a sacrosanct right which cannot be tinkered lightly. The courts are certainly not helpless to deal with a situation where the Lawyer crosses the invisible but inviolable line. The remedy however is not an order adverse to the party.

The shift to video conferencing has given rise to new hassles in the Judicial work. The noble profession is called noble not due to its affluence anymore. A strong network is still a luxury for many. The bold efforts to get some 'range' by trying to be in video conferencing from the road, the car, etc. has not been viewed kindly by some courts^[12]. Most of the time the difficulties persuading lawyers to resort to 'on road' hearing is not properly appreciated by the Courts too^[13].

Being not physically present has made the advocates also lax in their approach to the hearing. Some were unmindful of their dress that they appeared half nude^[14]. Some others were found eating lunch, or smoking^[15]. Some such conducts were visited with penalties in form of costs. Some such faux pas caused a giggle and may be a viral video on the social media. The adhocism of the virtual hearing is one reason for such flipflops. It is an overwhelming necessity to crystalize the process by laying down statutory rules governing how such video conferencing hearings would take place. Decorum of court is too important a matter to be left merely to individual idiosyncrasies. The rules must be alive to the compulsions of the profession as also the majesty of the judicial system.

The Bar, as also Bench, must not forget that they are part of a single system called the Court. The fine balance between majesty and decorum of the Court and independence and boldness of the Bar has to be struck. The fact that these institutions are mutually supporting and the damage to one would irretrievably affect the other must not be lost sight of. Respect ought to be mutual. It must be to the institution, not to the individual. It ought to be commanded, not snatched or compelled