Balancing the Bar and the Bench: A message by Dushyant Dave

Dushyant Dave

“It is for the Bar Council and the senior members of the Bar who have never forgotten their responsibility to rise to the occasion to maintain the independence of the Bar which is so supreme and is absolutely necessary for the welfare of this country and the vibrant democracy.“

This is how the Supreme Court of India cajoled members of the Bar, especially Senior Advocates, to act in its judgment and order dated January 29, 2019 while deciding Writ Petition No. 612 of 2016, in the case of R Muthukrishnan v. The Registrar General of the High Court of Madras. The judgment is a beautiful exposition of the role of the Bench and the Bar. It holds:

“17. Role of Bar in the legal system is significant. The bar is supposed to be the spokesperson for the judiciary as Judges do not speak. People listen to the great lawyers and people are inspired by their thoughts. They are remembered and quoted with reverence. It is the duty of the Bar to protect honest judges and not to ruin their reputation and at the same time to ensure that corrupt judges are not spared…

…20. There is a fine balance between the Bar and the Bench that has to be maintained as the independence of the Judges and judiciary is supreme. The independence of the Bar is on equal footing, it cannot be ignored and compromised and if lawyers have the fear of the judiciary or from elsewhere, that is not conducive to the effectiveness of judiciary itself, that would be self­destructive.

21. Independent Bar and independent Bench form the backbone of the democracy. In order to preserve the very independence, the observance of constitutional values, mutual reverence and self­respect are absolutely necessary. Bar and Bench are complementary to each other. Without active cooperation of the Bar and the Bench, it is not possible to preserve the rule of law and its dignity….

…27. The balancing of values, reverence between the Bar and the Bench is the edifice of the independent judicial system. Time has come to restore the glory and cherish the time­tested enduring ideals and principles. For a value­ driven framework, it is necessary that perspective is corrected in an ethical and morally sound perspective.”

The judgment was authored by Hon’ble Mr. Justice Arun Mishra sitting in coram with Hon’ble Mr. Justice Vineet Saran.

The Advocates Act, 1961, inter-alia, requires the Bar Council of India, “to lay down standards of Professional Conduct and Etiquettes for Advocates”. In exercise of that, The Bar Council of India Rules have been framed. Part VI deals with “Rules Governing Advocates” and Chapter II prescribes “Standards of Professional Conduct and Etiquette”.

They inter-alia command that, “an advocate shall fearlessly uphold the interest of his client” and provide in Rule 1 that “…he shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities”.

Earlier, a Constitution of Bench of Supreme Court of seven learned Justices in 1975, speaking through Justice Krishna Iyer, in a concurring judgment declared that,

“the Bar is not a private guild, like that of barbers, butchers and candlestick makers but by bold contrast, a public institution committed to public justice and pro bono publico service…the central function that the legal profession must perform is nothing less than the administration of justice.”

These principles guide all the members of the Bar continuously and I am no exception to the same. I cherish my role and my duties as a member of the Bar. As part of that obligation to the administration of justice, it falls upon me, as also on others, from time to time to scrutinize judicial conduct, judicial proceedings and judicial pronouncements. I do so only with sense of doing service to the institution and nothing more. I love the institution as much as any other member of the Bench and the Bar.

I have now spent four decades at the Bar. The profession has given me a lot more than I can ever repay. I therefore must be on vigil constantly to ensure that the institution survives well. In this quest, I may praise the institution, the judges and their judgments. But I may also need to criticize them and their judgments given a just cause. But I can assure all that I act as per my conscience and nothing else. I have no ill will towards anyone nor am I influenced by anyone in this regard. I take full responsibility for what I say and do. But, my respect for the institution, even in times of challenge, remain unbounded.

I am therefore, deeply saddened to hear statements from the Bench expressing anguish over “belligerent and reckless behaviour by a few individuals” or “indecorous acts” or “loud and motivated conduct in courts” and that the same must be put in “quarantine” to ensure that decorum and dignity of judiciary is not lost. Equally, I am shocked by comments from the Bench to the effect:

“We see nowadays champions of causes who raise objections to each and everything. They are not foreigners but are members of the Bar…

…We do not want to target anyone on the earth but we are being targeted.”

My Lords, those of us, and especially me, whom you are referring to, do not indulge in any such conduct. Yes, we do criticise your conduct and your judgments but do so objectively and only with the object of ensuring that the institution improves and lives upto its ethos. There is no intention to hurt or harm the reputation of the institution, much less to lower its dignity in the eyes of public at large. In any case, we act as per our rights and duties indicated by your Lordships and the law. If we were to fail in not doing it, posterity will not forgive us. History will condemn us.

Article 51-A of the Constitution lays down fundamental duties of every citizen of India and requires him or her inter-alia:

“a. To abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem,

b. to cherish and follow the noble ideals which inspires our national struggle for freedom;

j. to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.“

Can I be faulted for writing or speaking respectfully and honestly about perceived judicial misconduct or an improper and incorrect judgment?

I must say that I have received from the Bar and the Bench immense love and affection during my 41 years. The young Bar particularly, is ever so generous in supporting me and encouraging me. They accost me in canteen, corridors, library or court rooms to express their views; agreeing or disagreeing with my thoughts and actions. But they have never condemned me. Perhaps, I am their voice.

The Senior Members of the Bar too have showered me with affection. The Bench has equally been ever so kind to me despite at times some amount of provocation from my side. But that provocation I can assure, My Lords, is not a reflection of disrespect, but merely an effort to put a point across. I believe in standing up and not standing down.

Yet, I must say that I may be wrong at times and I would be happy to be corrected. But I do so out of bonafide belief. Being a judges’s son, I have been brought up to respect judges. Yes, at times, I have had issues before a judge or two. But my approach to the same is by recusing myself from the court of that judge to avoid any confrontation.

I have no doubt that some of my colleagues of the Bar are even more courageous and forthright than I am in taking up causes for the improvement of the administration of justice. They too love the institution and do not mean any disrespect, much less contempt for the courts.

Regrettably, the elected bodies of the Bar, including those in the Supreme Court do not take up any such issues at institution levels to ensure better administration of justice. The elected representatives perhaps do not wish to annoy the judges.

Senior members, upon whom there is a greater responsibility as per the above judgment, have, I must regret, not been generally forthright and critical of any misconduct or wrong judgments. Perhaps, they are not willing to make sacrifices that entail such criticism. I have had to sacrifice professionally and somewhat socially, but then that is the price a responsible member of the Bar must be prepared to pay if he loves the institution and wants to improve it.

The Bar is and must be a watchdog of the Judiciary and for the Judiciary. The Bar must be like the metaphor of the Ashvatta Tree referred in the Gita:

“Its branches extend below and above, nurtured by the Gunnas. Its buds are the sense objects. Small roots extend also downwards into the world of men, impelling man to action.”

The time has come for the silent majority of principled and ethical members of the Bar to lead the Bar to a better future for the administration of justice.

But I would be failing in my duty if I were not to point out that you can only clap with two hands. Across the country, the conduct of some of the judges, however few they may be, raises a very serious challenge to the independence and integrity of the institution itself. Time and again, corruption in the Judiciary has been adverted to by judges themselves, including several Chief Justices in the past.

India ranks very high in the corruption index as per international reports. The Judiciary is not free from the same, although an overwhelming number of judges are honest, hard working and judicious. They also are extremely courteous and respect members of the Bar who in turn shower them with love, affection and respect. There are judges who are extremely discourteous to the Bar, chide them in poorest of language and mostly without any justification. When reminded to conduct themselves in a judicious manner, they threaten members of the Bar with contempt. Such conduct is itself contemptuous and must be condemned. The Bar Associations have a responsibility to check this conduct so that members of the Bar can appear without fear and present their cases to best of their abilities. I hope that the Supreme Court Bar Association takes the lead in this regard. They must not forget that respect is to be earned and to be demanded.

Silence is at times deafening. It is, therefore, important to speak up and let the country know the state of affairs in the Judiciary. The state of denial is destructive of the transparency and will ultimately affect the Rule of Law and the functioning of democracy.

I have nothing more to add.

Silence will only decay the institution, more and more.

Dushyant Dave is a Senior Advocate practising in the Supreme Court of India.