“The Bar and the Bench are joint guardians of the rule of law.”[1]
Unquestionably, though, Judges and advocates may extraneously appear to be segregated by interstices of authority and epithet, however, discerned in correct perspective, their objectives are not quite dissimilar. In fact, both the Bar and the Bench untiringly strive towards a common pursuit of justice, in which process, provisions of law are explored, unraveled and eventually implemented for the advantage of their ultimate beneficiaries. Appreciably, the part which lawyers’ assistance plays in orchestrating a promenade for discovering truth is equally as important as the evaluation of conflicting voices and interests by Judges and delivering their final edicts. Undoubtedly, it is the acknowledgement of indispensability of this alliance, which is insistently voiced in innumerable proclamations[2] of courts, declaring Bar and the Bench as, “integral part of the same mechanism which administers justice to the people”.
At the same time, courts, while accentuating on the significance of advocates’ assistance in justice administration, have repeatedly affirmed[3]:
- … It is also undeniable that for a fair, quick and satisfactory adjudication of a cause, the assistance which the court gets from the Bar is extremely important. It is at times said that the quality of judgment or justice administered by the courts is directly proportionate to the quality of assistance that the courts get from the counsel appearing in a case….
Indisputably, in order to ensure that the entente between the lawyers and Judges is conserved and perpetuated, there are ample guidelines under law[4] and judicial precedents[5], prescribing code of conduct, ethics and accountability for, both Judges and lawyers. Nonetheless, situations occasionally arise where due to disconsolate reasons such as ego, pride, adamancy, etc., certain crevices may surface between the cerebration and working of the members of aforestated congregations. Sadly, state of affairs may swiftly exacerbate where either of the factions refuses to cooperate and disregard minor discords, prejudices, preconceptions, egotism, etc., in their intercourse and journey towards fairness and justice.
Woefully, one of the most unnerving exemplifications of conflict between the members of the bar and that of judiciary may be perceived in the instances of contempt of courts by lawyers. Undoubtedly, law clearly prescribes that not all instances/actions directed towards courts amount to its contempt. In fact, as per the Supreme Court[6] it is only the scandalous acts, directed towards the courts or Judges and those which undermine or tend to undermine people’s confidence in administration of justice and bring or tend to bring courts into disrepute or disrespect, tantamount to criminal contempt. Concomitantly, a broad test for adjudication of act(s) as criminal contempt has been conceived[7] to be the ascertainment, “whether the act complained of was calculated to obstruct or had an intrinsic tendency to interfere with the course of justice and the due administration of law”.
In contrast, it has been persistently avowed[8], “[f]air and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice” do not to constitute contempt. As a matter of fact, a fair and reasonable criticism of judicial dictates is often encouraged on an understanding, “no one, much less Judges, can claim infallibility”. Consequently, it becomes incumbent on the courts, while exercising their “contempt” jurisdiction for the conservation of their majesty and authority, to act with refrain and avoid undulation of their dictates by extraneous considerations and personal opinions. Needless to mention, the Supreme Court[9] has frequently ingeminated that the power for contempt should be exercised with meticulous care and caution and only in absolutely compelling circumstances warranting its exercise. Illustratively, the Supreme Court in Rajendra Sail v. M.P. High Court Bar Assn.[10], noted:
- [a] question whether there is contempt of court or not is a serious one. The court is both the accuser as well as the judge of the accusation. The court has to act with as great circumspection. It is only when a clear case of contemptuous conduct not explainable otherwise, arises that the contemner must be punished.
Markedly, though, an impulse for victory may often motivate lawyers to act with vigour which may manifest in the form of passionate arguments, however, in the process of addressing the courts, it is expected that the intention of the orator must not be to cause insult, show disrespect, overbear, overawe, threaten or obstruct the course of justice. At the same time, it is expected of advocates[11], “not to be immersed in a blind quest of relief for his client….His duty is to legitimately present his side of the case to assist in the administration of justice”. Indisputably, it is not expected of a lawyer[12] to act subservient to the court while presenting and not to put forward his arguments merely because the court is against him, however,
“if, in spite of it, the lawyer finds that the court is against him, he is not expected to be discourteous to the court or to fling hot words or epithets or use disrespectful, derogatory or threatening language or exhibit temper which has the effect of overbearing the court.”
Quite understandably[13], no immunity or licence is granted upon lawyer(s), howsoever dissatisfied he (they) may be with the result of any litigation to cause, “disrespect to the court or attempting, in any manner, to lower the dignity of the court. A lawyer does not enjoy any special immunity under the Contempt of Courts Act[14] where he is found to have committed a gross contempt of court”. Whence, in order to ensure that the significance, dignity and charm of lawyers’ noble profession are not lost and at the same time, majesty of courts is upheld, courts have persistently acted in a manner so as to ensure that lawyers are not permitted to make any malicious, scandalous and scurrilous allegations against the institution of which they are part. Incontestably[15], though, “lawyers are supposed to be fearlessly independent and robust but at the same time (must be) respectful to the institution”.
Significantly, in an instance where an advocate is found to be guilty of committing contempt of court, he may simultaneously be guilty of professional misconduct. However, courts have obstinately cautioned that the said jurisdictions (of trail and punishment for said acts) are separate and distinct, exercisable by different forums by following separate and distinct procedures. Quite understandably, while the jurisdiction to punish for contempt vests within the sole purview of courts, in terms of the provisions under the Contempt of Courts Act, 1971 and various provisions of the Constitution[16], power to punish an advocate by suspending his licence or by removal of his name from the roll of the State Bar Council for proven professional misconduct vests exclusively in the statutory authorities created under the Advocates Act, 1961. Markedly, in this regard, the Supreme Court[17] has clarified,
- [a]n advocate who is found guilty of contempt of court may also… be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case.
However, at the same time, the Supreme Court has clarified that in a case where the Bar Council, even after receiving “reference” from the Court, “fails to take action against the advocate concerned, this Court might consider invoking its powers under Section 38 of the Act[18] by sending for the record of the proceedings from the Bar Council and passing appropriate orders”.[19] Consequently, in the instances, where the Bar Council fails to take requisite actions against lawyers’ professional misconduct, the Supreme Court is well within its rights to exercise its jurisdiction under Section 38 of the Advocates Act, 1961 by passing appropriate orders or directions. At the same time, it is (now) a settled law[20],
- … what is permissible for this Court by virtue of statutory appellate power under Section 38 of the Advocates Act is also permissible to a High Court under Article 226 of the Constitution[21] in appropriate cases on failure of the Bar Council to take action after its attention is invited to the misconduct”.
Nevertheless, irrespective whether or not appropriate actions for penalising a lawyer for professional misconduct are initiated, the Supreme Court[22] has time and again declared:
- … regulation of right of appearance in courts is within jurisdiction of courts and not the Bar Councils, thus, the court can bar an advocate convicted for contempt from appearing/pleading before any court for an appropriate period of time, till convicted advocate purges himself of the contempt, even in the absence of suspension or termination of enrolment/right to practice/licence to practice.
Indisputably, while on one hand, advocates are expected to act with dignity while addressing the courts, it equally expected from the Judges not be controlled by their emotions or over-sensitivities during such intercourse. Verily, the Judges in discharge of their authority cannot let their emotions rule their verdicts and in no case, are permitted to pass unwarranted and unnecessary remarks against lawyers. Such a practice is, in fact, time and again deprecated by even the Supreme Court. In this regard, the Supreme Court in Neeraj Garg v. Sarita Rani[23], fervently professed,
- [w]hile it is of fundamental importance in the realm of administration of justice to allow the Judges to discharge their functions freely and fearlessly and without interference by anyone, it is equally important for the Judges to be exercising restraint and avoid unnecessary remarks on the conduct of the counsel which may have no bearing on the adjudication of the dispute before the court.
Even earlier in Alok Kumar Roy v. S.N. Sarma[24], the Supreme Court while emphasising on a need of utilisation of language of utmost restraint even in the cases of justified criticism, iterated, “judicial decorum has to be maintained at all times and even where criticism is justified it must be in language of utmost restraint, keeping always in view that the person making the comment is also fallible”. Similarly, the Supreme Court in A.M. Mathur v. Pramod Kumar Gupta[25],terming the Judges as flesh and blood mortals with individual personalities and with normal human traits, favoured exercise of judicial restraint and discipline by the members of Bar, as imminent to the orderly administration of justice. As per the Court,
- … duty of restraint, this humility of function should be constant theme of our Judges. This quality in decision-making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the court as well to other co-ordinate branches of the State, the executive and the legislature. There must be mutual respect….
- …Judges have the absolute and unchallengeable control of the court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses.[26]
Irrefutably, Judges and lawyers are integral weapons of war against injustice and illegality. These two factions represent two seemingly segregated battalions of comrades, though, marching towards a common goal. No doubt, there may be a situation where their proposed courses of action or modes of operation may not be in concert. However, this should, in no instance become a cause of permanent standstill or dead stop in the journey towards attainment of justice. In fact, the members of Bar and Bench are expected to be always conscious of the fact that they represent integral elements of the “justice” brigade. Therefore, while striving towards a common aspiration, there cannot be occasion(s) of conflict based on personal vendetta, opinions and prejudices. Needless to reiterate that while on one hand, it is for the lawyers to be conscious of their responsibility of maintaining dignity of court and its officers. On the other hand, Judges are expected to act with restrain and decorum. It is only then that the pursuit of justice would finally emerge to be comfortably attainable.
*Advocate. Author can be reached at <abhigoyal85@gmail.com>.
[1]Kanpur Income Tax Bar Assn. v. Union of India, 1998 SCC OnLine All 1088.
[2]R.K. Garg v. State of H.P., (1981) 3 SCC 166.
[3]State of Punjab v. Brijeshwar Singh Chahal, (2016) 6 SCC 1, 29.
[5]Amar Pal Singh v. State of U.P., (2012) 6 SCC 491, 500, para 27, wherein Supreme Court, inter alia,observed, “A Judge is required to maintain decorum and sanctity which are inherent in judicial discipline and restraint.” Also, D.K. Parihar v. Union of India, 2004 SCC OnLine Raj 102, para 31, wherein, Rajasthan High Court noted, “Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences.”
[6]D.C. Saxena v. Chief Justice of India, (1996) 5 SCC 216.
[7]S. Abdul Karim v. M.K. Prakash, (1976) 1 SCC 975.
[8]Rama Dayal Markarha v. State of M.P., (1978) 2 SCC 630.
[9]C.S. Karnan, In re, (2017) 7 SCC 1.
[11]R. Muthukrishnan v. High Court of Madras, (2019) 16 SCC 407.
[12]Vinay Chandra Mishra, In re, (1995) 2 SCC 584, 613-614, para 33.
[13]Nand Lal Balwani, In re, (1999) 2 SCC 743, 744, para 4.
[14]Contempt of Courts Act, 1971.
[15]Prashant Bhushan, In re, (2021) 3 SCC 160, 219, para 80.
[16]“Besides Art. 129, the power to punish for contempt is also vested in the Supreme Court by virtue of Art. 142(2)…power to punish for contempt being inherent in a court of record, it follows that no act of Parliament can take away that inherent jurisdiction of the court of record to punish for contempt and Parliament’s power of legislation on the subject cannot, therefore, be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts….” (Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409, 421, paras 19-21).
[17]Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409, 444.
[18]Advocates Act, 1961, S. 38.
[19]Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409, 445, para 79.
[20]Mahipal Singh Rana v. State of U.P., (2016) 8 SCC 335, 368.
[21]Constitution of India, Art. 226.
[22]R. Muthukrishnan v. High Court of Madras, (2019) 16 SCC 407, 467.
[26]A.M. Mathur v. Pramod Kumar Gupta, (1990) 2 SCC 533, 538-539.
