The Carrot And Stick Of Senior Designation – Do We Need It At The Stake Of Independence?

A writ petition has been filed in the Supreme Court of India seeking revocation of Mr. Dushyant Dave's designation as a Senior Advocate, in view of the arguments made by him defending Mr. Prashant Bhushan in the contempt proceedings initiated against him, suo-moto by the Supreme Court of India. The basis of the entire controversy revolves around the issue of a contempt proceeding against Mr. Prasanth Bhushan for his remarks, which as argued by Mr. Dave, was made by Mr. Bhushan as a fair criticism aimed at the betterment of the judiciary, with no malice. But unfortunately, the Supreme Court has held that Mr. Bhushan is guilty of contempt. The petitioner in the writ petition has contended that Mr. Dave made a "run-down" on Supreme Court judges by raising "unconnected issues" in the case and for that "brashness" which according to him is an act of "anointing himself as the custodian of rectitude and guardian to the conduct of Supreme Court" and has further led to the "demolition of the dignity of the court". As per the petitioner Mr. Dave's conduct is inconsistent with the dignity of a senior advocate and therefore his designation should be recalled.

In this post, notwithstanding the merits of the subject-matter of the petition, I think there are some other larger issues, which are glaring at us and we should be concerned about.

The Sword of Contempt

The concept of contempt of court is several centuries old. In England, it was a common law principle that seeks to protect the judicial power of the king, initially exercised by himself, and later by a panel of judges who acted in his name. The law of contempt signifies the remnant of the colonial era. The bishop of Worcester, Oswald defined the term contempt to be constituted by any conduct that tends to bring the authority and administration of Law into disrespect or disregard. It is a proven fact that something which curtails the liberty of limits of the judicial proceedings is equivalent to hampering the administration of law and also amounts to interference in the provision of justice. The act of contempt of court hits at the very roots of the principle of rule of law.

The rationale for this provision is that courts must be protected from motivated and tendentious attacks and unwarranted criticism that lower its authority, defame its public image and make the public lose faith in its impartiality. For many years, truth was not considered as a defence against a charge of contempt. There was an impression that the judiciary tended to hide any misconduct among its individual members in the name of protecting the image of the institution. Subsequently, in 2002, in the case of Arundhati Roy, the Supreme Court of India went on to say that any criticism that undermines the very dignity of court does not fall under the umbrella of freedom of speech and expression under Article 19(1)(a) of the Constitution of India. However, in 2006, the Contempt of Courts Act was amended to introduce truth as a valid defence, if it was in public interest and was invoked in a bona fide manner.

The offence of "scandalising the court" under Sec. 2(c)(i) of the Contempt of Courts Act was often considered as vague, arbitrary, subjective and thus often leading to violation of fundamental right to free speech. In 2013, the United Kingdom had abolished the offence of scandalising the judiciary as a form of contempt of court on UK Law Commission's recommendation that the law was vague and not compatible with freedom of speech. In a democracy, no institution of the State — the judiciary included — can or should be above public scrutiny and criticism.

The law on the contempt of court should not be used to suppress tenable and justifiable criticism which does not purport to bring the judiciary as an institution to public ridicule and raise doubts about its integrity. The Supreme Court as an institution is different from the body of individual judges that constitutes it. Criticism of individual judges on valid grounds should not be construed as an affront to the institution of the judiciary as such.

Criticism is not contempt

One of the most renowned lawyers of our time, Mr. Fali S. Nariman had said about the allegations of corruption in the higher judiciary, "do you keep everything under the carpet until all that is under the carpet suddenly blows up on your face? We have excellent, honest and upright judges in the High Courts and Supreme Court of India. But there are a group that are not honourable. Perception of the public is very important. The more one tries to bury or hide them, the worse the situation becomes and it corrodes the entire judicial system".

The above-mentioned view is shared by many stalwarts of the field of law. In his Lincoln day address in 1898, Justice Brewer, the American jurist and Associate Justice of the US Supreme Court said, "it is a mistake to suppose that the Supreme Court is ether honoured or helped by being spoken of as beyond criticism. On the contrary, the life and character of justices should be the object of constant watchfulness by all and its judgments subject to the freest criticism".

Similarly, Lord Denning, the most celebrated English judge of the 20^th century, had observed that contempt of court should not be used as a means to uphold the Judges own integrity. This must rest on surer foundations, and Judges must rely on their own conduct itself to be its own vindication. It is the right of every man to make fair comment, even outspoken comment, on matters of public interest.

Justice M.N. Venkatachaliah, former Chief Justice of India had stated that courts have a specific higher constitutional responsibility as the watchdog of the rights of the citizenry. In cases that do not have judicially manageable standards, judicial restraint is the wiser course. The answer lies in judicial statesmanship and the wisdom of judicial restraint.

Similarly, Justice V.R. Krishna Iyer, former Judge of the Supreme Court of India had stated that the incompetence of Judges is never exposed because of the existence of contempt law. It is common knowledge that standards are falling, procrastination is increasing and prompt disposal, fair and square, is becoming a rarity. Why should this be a pathology of the judiciary?

What makes an ordinary person important is seldom because of his intrinsic qualities of character. It is the office that he holds that makes him important and powerful. Divested of the office he becomes just an ordinary citizen. Like any other human being, a judge also suffers from the same frailties and foibles ingrained in human nature, while an individual judge may also suffer from folie de grandeur.

This highlight the fact that judges are not infallible both legally as well as ethically, and when they do so, it needs to be pointed out, so that it does not harm or bring down the institution as a whole, rather it helps in strengthening people's belief in the system. In a democracy, public perception matters, one must not only be honest but also must be seen to be honest. When the people find that the judiciary is showing a tendency to fall in line with the decisions of the Executive, whatever these decisions are, doubts are bound to occur on the independence and fear-free functioning of the judiciary. The expression of this doubt, by word of mouth or in writing, should not be construed as contempt of court. Rather, the judiciary should make an honest introspection whether it has lived up to the standard of independence and objectivity it is expected to rise to.

In countries that uphold democracy and the rule of law, fundamental values manifested in the entire constitutional framework regulate the relationship between the individual and the state. Adherence to the rule of law can only be a reality if government and the other organs of the state itself are subjected to the rule of law. In practice as well as in theory citizens must have the right to challenge the unlawful acts of governments and such a possibility can only exist if there is an independent judiciary, and it is the duty of all of us to see that it remains independent. It is clear that courts play a vital role in the building of a democracy and its powers are exercised in conformity with the constitution and the idea of justice.

Justice M.N. Venkatachaliah, quoted an incident of a very interesting conversation between the Lord Chancellor of England who was coming to India with the Chairman of the Law Commission of Australia, Justice Kirby, wherein Lord Chancellor asked Justice Kirby his thoughts about the future of the courts. Justice Kirby told the Lord Chancellor that he was very happy that the Lord Chancellor thought they had any future at all. Justice Venkatachaliah further commented, "if anyone ask me whether I share the pessimism that the judicial system is going to collapse under its own dead weight, that it has outlived its utility and existence, that its methods are archaic, I would not in all sincerity and humility agree. That is not to say that we have a perfect system in position, not to deny the fallings of the system, its shortcomings or measures are required to update its functioning. But when I looked at it sincerely, I found that it is the human factor that has let it down". Thus, in order to do away with this irregularity caused by the "human factor", administration of justice should be done in a way to ensure that the law is not for the convenience of a particular special class. Judges must act according to the law. It is through this that impartiality is secured in the administration of justice. Sir Edward Coke, considered to be one of the greatest English jurists, had said that that the wisdom of law is wiser than any man's wisdom and Justice represents wisdom of the community. Therefore, the judicial system should work to serve and protect the wisdom of the community and not that of individuals.

Watchfulness by Advocates

To safeguard administration of justice and to be in constant watchfulness of the actions of the judiciary as well as to point out when "human factors" within the system errs in upholding the system, are some of the key duties and functions of an advocate. This can be gauged by the observation of the Supreme Court of India in the "All India Judges Association v. Union of India" case, wherein it was expressed that the aspect of an advocate as a public servant is closely tied to the key role he plays in the developmental and dispute-processing activities and, above all, "in the building up of a just society and constitutional order."

'Justice' being the cornerstone in a democratic society is characterized by the rule of law and an advocate who works to uphold the rule of law could be described, to some extent, as a minister of justice. The word "advocate" itself was derived from the Latin expression "ad auxilium vocatur" which can be translated as "the one who is called upon for help". The statement, "A lawyer is and must ever be the high priest at the shrine of justice" – a religious metaphor – highlights the special role of a lawyer in the administration of justice as contemplated by the American Bar Association in the first national code of legal ethics in the USA. Therefore, it is the bounden duty of an advocate to anoint himself as the custodian of rectitude and guardian to the conduct of the Court and it can never be said or considered as his brashness or can be made a ground to disrobe him.

Significance of Independence of Advocates

In the Recommendation (2000) on the freedom of exercise of the profession of lawyer issued by the Council of Europe which lays down the general principles of professional standards as well as the duties of lawyers, read as follows, "all necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public. Thus, it is significant that an advocate in order to perform his functions and duties of building a just society acts as a constant watchdog of administration of justice due to which he/she should be excluded from receiving advantages from governments or courts. Such, perks or advantages make them obliged and affect their independence to monitor administration of justice and expose matters when things less than desirable are happening.

The neutrality, independence and preclusion of obligation of a lawyer is jeopardised by dividing them into classes — separation of senior and junior advocates — by creating an artificial type of unequal lawyers and that too at the sole discretion of judges. This hierarchy too has a very British history. The system of designating lawyers as "senior advocates" was created under the Advocates Act, emulating the English bar's recognition of its most distinguished members as Queen's Counsel (QC) and King's Counsel (KC) which has been around since the 16^th century.

Many eminent jurists in the past have made negative comments on this system of designation, as the process of appointing "Senior Advocates" in India was opaque and arbitrary. In fact in the case filed by Smt. Indira Jaising challenging the designation as unconstitutional, which was argued by Mr. Fali Nariman, it was contented that there is no transparency in the procedure, no criteria laid down for determining excellence in advocacy and no rational nexus between the persons designated and their excellence or no rational reason for rejection of persons of eminence and ability.

Since 2004, English QCs have been required to submit a lengthy application form and be interviewed by an independent panel of nine members which is chaired by a non-lawyer. Further, the CVs of new QCs are published online and are open for access to the general public. But in India, most often the process had become analogous to a "beauty contest", because judges' popular vote decide who to designate as senior advocates rather than "an informed discussion among judges on the merits of each candidate". Thus, the entire process often becomes a breeding ground for nepotism and favouritism.

Even though, officially, there are no specific advantages of the status, the designation apparently magnifies an advocate's social capital and helps financially. The society considers that they belong to the cream of the legal profession. Adding to the decorum, in courtrooms, most judges are more likely to listen when they talk. Naturally, the veneration has benefits. Senior advocates demand premium fees because the judges listen to them, and rich clients hanker after them for that very reason. The result? A system of ministering justice that pampers a minority of advocates over the masses of litigants, which actually converts the legal profession into a trade or mere sordid pursuit for accumulation of wealth, indulging in "briefs merchandise".

And more dreadfully, this turns out into a "Carrot and Stick Approach", which is a traditional motivation theory that asserts, in motivating people to elicit desired behaviours by giving them some benefits and rewards at the same time punishing them and pushing them towards the desired behaviour.

Conclusion

An advocate has the responsibility of "keeping the stream of justice pure and unsullied' so as to enable it to administer justice fairly and to the satisfaction of all concerned. But when his social status and commercial security is based on his indulgence to the judges, there definitely arises a conflict of interest. The independence required to oversee the core values of the legal profession and to point out the erring human behaviour among judges is surrendered. Such independence amongst the advocates is a condition for civic trust in the administration of justice, and even in the entire system of law in the country.

And if they point out such errors of human behaviour, they are at stake of depriving their senior designation, which is like disrobing them in front of public. The advocates need to have their watchful eyes on the system to maintain and strengthen public trust in the judicial administration of justice and call the spade a spade when required. Therefore, there exists a need for examining and introspecting whether an unbiased administration of justice can go hand in hand with the carrot and stick approach in advocacy, which if cannot, then do we really need such an approach at the stake of an independent and unbiased profession.

Views are personal only.

(Anil Xavier is the President of Indian Institute of Arbitration & Mediation and Chairman of the Asia Pacific Centre for Arbitration & Mediation. He can be contacted at anilxavierindia@gmail.com)