Comprehending the nuances of an advocate’s privilege

What does the Solicitor General of India, Mr. Tushar Mehta have in common with the redoubtable yesteryear barrister of the Madras High Court, Eardley Norton? Simply put, both of them have had to face serious criticism for certain utterances in court.

With Mehta, it has resulted in release of a fusillade of criticism including astonishingly one of breach of professional norms, whereas Eardley Norton had to face much more serious consequences of an action before court. It is the submission of this author that such criticisms, however, display a poor ignorance of the privileges of an advocate.

Eardley Norton was one of the most competent barristers that the Madras High Court has ever seen in the late nineteenth century. The person who petitioned the court for action against Norton in 1886, was an equally distinguished civil servant, Henry Edward Sullivan, a member of the Madras Civil Service.

Sullivan alleged in his application that he had been subpoenaed as a witness on behalf of the defence in the case of the Queen-Empress of India against the Zamindar of Bodinayakanur and others who were charged with abetment of dacoity and other offences under the Indian Penal Code; and that Mr. Norton, who defended the Zamindar, made charges of a grossly defamatory character against him, and therefore action must be instituted against him by the High Court for such reckless statements.

Norton defended himself, submitting that no reasonable cause has been shown to enable the High Court to proceed against him and that in all he said with regard to Sullivan, he was acting under instructions and was absolutely privileged and relied on the decision in Munster v. Lamb.

The issue came up for adjudication before a very eminent Full Bench of the Madras High Court consisting of Sir Arthur Collins, CJ and judges Kernan, Muttusami Ayyar, Brandt and Parker, JJ.

The Acting Advocate General, in supporting Sullivan, contended that Norton had exceeded his privilege as an advocate. He admitted that in an ordinary case, it would be sufficient for counsel to say that he was instructed, but in the present case, Sullivan’s position should be taken into account. Counsel must, before he makes such serious allegations, satisfy himself of the truth of the charges or at least take more than ordinary pains to satisfy himself that the charges are true.

Importantly, the Acting Advocate General also contended that the rules of the English common law did not apply to advocates in this country on the aspect of privilege of advocates.

The Full Bench referred to several judgments on the point in England and most pointedly approved the judgement in Kennedy v. Brown where Erle, CJ, had held,

“The Advocate is trusted with interests and privileges and powers, almost to an unlimited degree. His client must trust to him at times for fortune and character and life. The law trusts him with a privilege in respect of liberty of speech which is in practice bounded only by his own sense of duty, and he may have to speak upon subjects concerning the deepest interests of social life and the innermost feelings of the human soul. His words and acts ought to be guided by a sense of duty that is to say, duty to his client binding him to exert every faculty and privilege, and power in order that he may maintain that client’s right, together with duty to the Court and himself, binding him to guard against the abuse of the powers and privileges intrusted to him, by a constant recourse to his own sense of right."

The Full Bench refused to agree with the Acting Advocate General and held that advocates in this country have and should have the same privileges in respect of liberty of speech as in England, bearing always in mind the remarks of Erle, CJ, and that in this country, it would be beyond embarrassing to the advocate and disastrous to the interests of the client, if the advocate was exposed to the liability of a criminal or civil charge for defamation for words uttered in court. The court then went to declare in memorable words,

“To quote again the words of the Master of the Rolls in Munster v. Lamb, 11Q.B.D. 588: 52 L.J. (Q.B.D.), If any one needs to be free of all fear in the performance of his arduous duty an advocate is that person.”

The judgement of the Madras High Court in Sullivan v. Norton (surprisingly not reported in any important journal until the Current Tamilnadu Cases reported it) has been good law on the issue of privilege of advocates in this country ever since.

In Re Vasantha Pai v. Unknown, another formidable advocate of the Madras High Court, Mr. Vasantha Pai, petitioned the Court for striking down certain observations made against him by a judge of the High Court who had sternly reprimanded Pai for certain questions he put to witnesses in the course of conduct of a matrimonial proceeding.

Pai submitted that questions were put by him to the witnesses on facts in issue and relevant facts which made the facts in issue highly probable, and that under no circumstances did he overstep his responsibility as counsel in the case.

The learned Attorney General MC Setalvad and S Govind Swaminadhan who appeared for the Pai, before dealing with the particular remarks and observations to which exception was taken by the learned judge, dealt at the outset with certain larger questions of general importance, primarily on the privileges of the Bar and the important role which an advocate has to play in the administration of justice.

After considering their submissions in detail, a Bench headed by Chief Justice PV Rajamannar held,

“What is, however, relevant to the present discussion is that an advocate in the discharge of his duties to his client must not be hampered by any fear of offending the opposite party or any witness. There are cases in which the subject-matter of the enquiry is such that questions will have to be asked which cannot be fit for the drawing room or which may appear to be scandalous but as pointed out by Subramania Iyer, J., in Zamindar of Tuni v. Peda Bannayya, "What is relevant cannot be scandalous"."

The Court went on to hold,

“We have no hesitation in holding that the adverse comments made by the learned Judge on the conduct of the petitioner are wholly unwarranted. He was only doing his duty by his client and it might be that part of his duty was neither pleasant nor savoury but it is difficult to exclude such things especially in the conduct of a matrimonial suit.”

Sullivan v. Norton was decided by a five-judge bench of the Madras High Court in exercise of its powers under Section 10 of the Letters Patent. After the Constitution of India came into force, Art 372(1) of the Constitution sanctioned the continuance of existing laws until they are amended by a competent authority under the new Constitution.

Significantly, no provision of the Advocates Act 1961 has made any inroads - express or implied - into these privileges of an advocate as recognised by Indian courts, and they have therefore been in existence a good six score and more years.

That is why, even in the case o f G Narayan Reddy v. P Sitapathi, advocate in 1991, the Andhra Pradesh High Court recognised the application of the principles relating to privilege of an advocate after referring to the judgement of the Madras High Court in In Re Vasantha Pai.

The indispensable working tools of an advocate were best expressed in a small board that always adorned my senior’s desk. It said,

“Boldness, Boldness, Boldness!!”

Such emphatic boldness must be moderated only by an advocate’s professional training, his sense of fairness, and respect for the cause he serves. It most definitely cannot be regulated by exposing him to civil or criminal liability or even the provisions that regulate his professional practice.

A constant and consistent requirement to tread ever so softly and to fit a speech governor to monitor every word that an advocate utters will do irreparable injury to the execution of his craft and the efficacy of his skills.

It is the twin paths of diametrically opposed arguments presented vehemently by opposing counsel that helps courts immeasurably in their quest for the truth in legal proceedings. There must therefore be very minimal obstacles, if at all, in an advocates’ exercise of such skills of advocacy.

By granting an advocate that license, society profits much.

The judiciary in this country, admirably so, has ever recognised and respected these principles and have consequently stayed their hands, except in aggravated cases of egregious and contumacious misconduct affecting the administration of justice.

Was it not Lord Eldon, LC, who in a notable passage in Ex Parte Lloyd (1882) remarked so perceptively that "truth is best discovered by powerful statements on both sides of the question"?

It is that endeavour that an advocate armed with his privileges constantly serves.

The author is a Senior Advocate practicing before the Madras High Court.