The Bar and the Bench – For Brutus is always an honourable man

“….the desirable future of this great country of ours may well depend upon the proper balancing of such relationship and upon the understanding between the lawyer and the judge that without the mutual assistance and respect of each towards the other, neither can carry out his assigned role despite great learning and dedication to duty.”. – Joe B Hamiter, Associate Judge, Supreme Court of Louisiana (Address delivered at the Louisiana State University in 1960).A judge and a lawyer are limbs of the same institution – a lawyer being an officer of the court over which the judge presides. The judge and the lawyer should remember first and foremost that in weighing and balancing rights and privileges, they are building together a monument in the Temple of Justice, that is, as Daniel Webster once put it “the greatest interest of man on earth”..A spate of incidents in the recent past has exposed the tumultuous and increasingly unhealthy relationship between the Bar and the Bench in our country – something not unknown to the legal fraternity..The most infamous of these incidents was Senior Advocate Rajeev Dhavan’s outburst at Justice GS Singhvi for refusing to hear him in the Radia Tapes matter and Dhavan’s subsequent comments made to mainstream media defending his actions. This instance of apex court judges refusing to hear lawyers is not a one-off incident. Dhavan himself was involved in a spat with Justice Gyan Sudha Misra when the latter refused to hear him with an agitated Dhavan going on a “Supreme Court has fallen” rhetoric before storming out of the Court..Though the Justice Misra episode escaped media attention, the incident involving Justice Singhvi generated public debate thanks to the fact that it happened during the hearing of a controversial matter in the presence of a large media contingent..Extracts from Dhavan’s clarification published in the Economic Times reads thus:.“If a bench makes a seemingly arbitrary decision contrary to justice, the parties are entitled to be heard, and not be told ‘very well’ a dozen times. No lawyer or party is entitled to dictate or get an order of his choice. They have a right to be heard. This didn’t happen.I admire the Supreme Court for the role it plays. I do not seek favours from judges. Once old friends are appointed to the Supreme Court, I stop visiting them. On two occasions when I thought I was being briefed before a judge when I shouldn’t have been, I stopped appearing in their courts. When a close relative was head of the High Court I declined to take cases from that State. I expect even better conduct from our honorable judges.”.The reasons for the refusal to hear Dhavan may or may not have been sound; but Justice Singhvi’s conduct during and after the episode needs to be lauded as he refrained from speaking about it or even replying to Dhavan’s sharp remarks during the hearing..That said, refusal/ recusal on the part of a judge without giving adequate reasons for the same is, no doubt, indefensible. And this has many times led to simmering tensions inside court rooms..During the hearing of an application for the modification of Supreme Court judgment on SEBI Chief UK Sinha, I was witness to the refusal of Justice Nijjar to hear out Advocate Gopal Sankaranarayanan. In the very same matter, the Court, however, gave a wide berth to Senior Advocate Shanti Bhushan – appearing for petitioner Arun Kumar Agrawal – who went on a tirade against the Court for certain erroneous observations in the judgment..There might have been reasons as to why the Court did not want to entertain the application of Sankaranarayanan’s client. But subsequently, the Court proceeded to pass an order in favour of Sankaranarayanan’s client (without hearing Sankaranarayanan). If the apex court of the country is qualified to decide cases merely on written submissions, there is no questioning that wisdom. However, it is unarguable that such treatment should apply equally to all lawyers – senior or junior..Such refusal on the part of judges, many times bordering on snubbing the lawyers outright for reasons best known to them, only makes matters worse..At this juncture, it would be appropriate to recall the shouting down that former Supreme Court Bar Association (SCBA) President, MN Krishnamani was meted out to by the then Chief Justice of India, Altamas Kabir. The incident took place when Krishnamani tried to speak against the manner in which the SEBI Sahara matter was being listed before different Benches. Krishnamani should perhaps have conveyed the dissent and rumours circulating in the Supreme Court in a manner more circumspect and less obvious, than trying to intervene while the hearing was progressing. But Justice Kabir’s vehement opposition and his subsequent justification for the chaotic listings failed to evoke confidence, especially after the NEET Judgment episode..In almost all ceremonies held in the Supreme Court following Justice Kabir’s retirement, Krishnamani has come down hard upon the judiciary in general and the Collegium system in particular with his counterpart in the Bench taking objection to the same. This reached its climax during the National Law Day celebrations held on November 26, when Krishnamani irreverently remarked that Supreme Court judges of yesteryears displayed compassion, a quality which has been found wanting in the present crop. He also criticised the Collegium system with both the Chief Guest for the function Union Law Minister Kapil Sibal and Chief Justice P Sathasivam taking objection to Krishnamani’s remarks. Again, though the timing and manner in which Krishnamani raised these objections could be considered inappropriate, that in itself evidenced the mistrust between the Bench and the Bar..The same Justice Kabir had once lost his temper while hearing Advocate Prashant Bhushan, to the extent that he went on to question the presence of Bhushan’s junior in the front row of the court. Subsequently, Kabir after his retirement had went on to refer to Bhushan as one of his enemies, a gesture which was demonstrably rancorous and unbecoming of a man who had held the highest judicial office of the largest democracy in the world. It is no secret that Bhushan himself has a reputation which might not go down well with the judges. He had created quite a stir when, in 2009, he had stated that “out of the last 16 to 17 CJIs, half have been corrupt.”.Only recently, Justice Dattu‘s refusal to entertain a petition concerning land allotment to High Court judges had evoked strong response from Bhushan. Bhushan cited bias evident to anyone with “common sense” as the reason for moving the Supreme Court instead of taking recourse to Article 226. The Bench headed by Justice Dattu, however, dismissed the petition but not before Bhushan went on to remark that,.“if the Supreme Court refuses to take up this matter, it would send the message that the apex court is shying away from taking up contentious issues relating to judges.”.There were some sore moments in that same courtroom on the same day when Senior Counsel K Radhakrishnan had raised his voice compelling the Bench to hear a case. Justice Dattu while dismissing the petition had expressed his displeasure at Radhakrishnan for his conduct while Radhakrishnan maintained that he had inadvertently raised his voice as he had auditory issues. .Any broad analysis of the topic under discussion would be incomplete without a reference to the frequent incidents of conflict that the Madras High Court witnesses, the most recent of them being the Collegium row which is now before the Supreme Court. A group of lawyers of the High Court had laid siege on the Chief Justice of the High Court Justice R K Agrawal for about an hour, occupying his ante-chamber and shouting slogans against the recommendations for elevation to the Bench. The action of the lawyers was backed by the Madras High Court Advocate Association which followed it up with a one day boycott of the court proceedings. And interestingly, the Bar found support from unlikely quarters when Justice CS Karnan, a sitting judge of the High Court, stormed into the Court protesting against the Collegium recommendations while the hearing in a PIL challenging the recommendations was progressing..Not long back, the Punjab and Haryana High Court Bar Association had passed a resolution condemning the tendency of recommending relatives of former judges for appointment as judges. It had also appealed to the Chief Justice of India to reject the names of seven persons recommended for appointment as High Court Judges by the Collegium headed by current Supreme Court judge Justice Arjan Kumar Sikri..Recently, when an Advocate sought adjournment in a case, Justice BS Chauhan replied that,.“Bench is not a slave of the Bar; you are here to render assistance.”.While agreeing with Justice Chauhan, I cannot but ask myself as to whether it is any different for the Bench? Unless the culture of mutual respect is cultivated, the establishment will continue to rest on shaky foundations..Reasons for the mounting distrust and disrespect between the Bar and the Bench are many. The Senior advocate – Junior advocate divide, a growing number of out of court interactions between judges and lawyers and the fallacies of the Collegium system have all contributed to the state of affairs..As Advocate Shafeeq Rehman Mahajir puts it,.“There used to be a certain code of conduct, a certain degree of honour, a certain approach to conventions being followed. You would never meet a judge outside the court room, or visit a judge’s chamber, forget about meeting him socially or for that matter, “anti-socially!” That seems to have been diluted substantially. People are socialising. That enables them to rub shoulders with judges in an informal atmosphere which naturally later manifests itself in the manner in which judges sometimes deal with one type of advocate and another type of advocate. There is also this tendency of having advocates who are closely related to judges or recently retired judges practising in these court rooms. This brings the fair name of the Bar as well as the Bench under a cloud.”.It is no secret that among the current crop of Supreme Court judges, relatives (close relatives!) of at least 3 of them are practising in the Supreme Court. That a certain Judge’s son stopped his Supreme Court practice when his father was elevated to the Supreme Court and that another judge from the Kerala High Court had sought a transfer as his son practised in the same court are examples worthy of emulation..Mahajir is also quick to point out that the Bar is not always on the correct side when he says,.“There is another aspect – a disguised form of forum shopping has crept into the system. On some occasions I have seen judges being spoken to roughly by advocates, almost inviting contempt so that the judge in disgust says, “Don’t post this man’s matter before me”. And this is how matters are then manoeuvred into more receptive waters. These are things which don’t augur very well for the justice delivery system.”.The infamous plaint “settled” and “resettled” for Justice Swatanter Kumar by 4 different Senior Counsels (with 9 Senior Counsels appearing in the matter for J. Kumar) in the law intern case was a subject matter of Delhi High Court corridor gossips that did rounds (before the order was passed). Dubbed as an attempt to intimidate a relatively junior member of the Bench hearing the case, a proposition which initially seemed a very farfetched one, sounded quite reasonable when the interim order gagging media houses from reporting the matter ran up to 42 pages..Later, a lawyer friend of mine said that a particular lobby of the Bar had thrown its weight behind J. Kumar with another lobby against him. Now the existence of these different “lobbies” is nothing new to the apex court Bar, especially when it comes to deciding who would govern the SCBA (which has been oscillating in two “directions” in the recent past). However, the fact that it goes beyond administrative issues at the Bar and interferes with and has ramifications on justice dispensation is appalling..No doubt, there has been a growing disrespect towards the Bench by the Bar and the consequent increased assertion of authority by the Bench. At a time when the integrity of the institution – which is trying to recoup after a series of scandals – lies precariously close to the definition of questionable/ arguable, repairing and revamping the relationship between the Bar and Bench in a major way is of great significance to restore the honour of the institution. Mudslinging and blame game is not going to help the cause and initiative towards this end must and can possibly come from the Bar only, especially the senior lot. Initiating and engaging in meaningful dialogue with the Bench on matters affecting justice delivery process and increased transparency and adherence to an unwritten code of conduct for interaction with the members of the Bench are some areas that demand immediate attention..As Hamiter puts it,.“Clear, scholarly, patriotic, and righteous minds at the bar must, therefore, complement receptive, studious, dedicated, and intellectually honest ones on the bench to insure that the demands of the time do not tarnish the image of justice we cherish, but, rather, that it be held high as a shining symbol to our people and to those in other lands who are denied law and justice.”.For a Bar struggling with its own ills, it is going to be a long, arduous journey uphill – especially because the Bench is always an honourable man..Image CourtesyJustice GS SinghviJustice HL DattuRajeev Dhavan