A successful lawyer has always been held in high esteem not because he has succeeded in accumulating unlimited earnings but because of his knowledge wisdom and Court craft. His keen mind, brilliant intellect, indomitable labour and prophetic vision aid him to acquire a personality which inspires the new entrant and fosters respect amongst colleagues.
But those who go astray indulge in indiscipline and profess to preach vices to enhance their own breed. They do not rely on genuine talent, rather find it convenient to have the short cut through the ladder of a risky adventurer or tread the lawless path. This breed adopts the method of shouts and threats bereft of wisdom to extract submission from the sobre. They create an atmosphere of helplessness and browbeat the logical and the reasonable. They call it agitation and glorify it in the name of revolution. Their motto is to get at something, by disrespect and creating chaos. Many young lawyers today are wandering without rule or guidance in a wilderness as vast and intricate as the untamed forest. The training of a newcomer to the profession is too casual and too scanty.
Regulatory Measure
An Advocate, who is an Officer of the Court, is bound to respect the Court and maintain its dignity, decorum and majesty is the thumb rule.
235. Control over subordinate courts
The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
This Article shows that the High Court has to exercise its administrative, judicial and disciplinary control over the members of the Judicial Service of the State. The word “control”, referred to in this Article, is used in a comprehensive sense to include general superintendence of the working of the sub-ordinate courts, disciplinary control over the Presiding Officers of the sub-ordinate courts and to recommend the imposition of punishment of dismissal, removal and reduction in rank or compulsory retirement. “Control” would also include suspension of a manner of the Judicial Service for purposes of holding a disciplinary enquiry, transfer, confirmation and promotion.
The Art of advocacy
A lawyer is given the privilege of audience by the Court and as such he is an officer of the Court. We often speak of the rule of law as the most significant and distinguishing feature of a democratic State. The majesty of law depends not only on the efficiency, integrity, impartiality and independence of the judiciary; it also needs the assistance of a strong, competent, fearless and incorruptible Bar. it is the privilege of the Bar and indeed their duty to press their clients’ cases strenuously and to the best of their ability. A lawyer must, no doubt, give his very best to every cause that he pleads in Court. But in the discharge of his duties he is always expected to exercise his discretion in the selection of his points. The art of advocacy consists in making a proper selection of points to be pressed before the Court and in making such selection the lawyer is at full liberty to exercise his own discretion in the matter.
This aspect of the duties of the profession of advocacy postulates that however keenly a lawyer may fight his client’s cause, he cannot and should not identify himself too much with his client. Detachment and objectivity are indeed the basis of the strength of the Bar, and when a lawyer agrees to share in the profits of litigation, he can never retain due detachment and objectivity while advocating the cause. An agreement which makes the payment of lawyer’s fees conditional upon the success of the suit and which gives the lawyer an interest in the subject-matter of the suit itself would necessarily tend to undermine the status of the lawyer as a lawyer.
The art of sophisticated advocacy will not only sooth an adverse Judge but will also heavily aid the lawyer in proceeding with the case to the best advantage of the litigant whose interest is supreme. This supremacy of the object should however not overcome the mental faculties of a lawyer so as to malign the free-flow of justice. It also does not enhance the limits of the licence given to a lawyer so as to destroy his own privileges which he enjoys by virtue of being an officer of the Court. It is only when a lawyer transgresses such limits that the Court on such rare occasions has to rise to preserve the faith and confidence of the public at large while ensuring the rule of law and dispensation of justice. Public interest or litigants interest cannot be served by resorting to whole scale violence of public faith reposed in the judiciary. Lawyers do not enter into contracts with clients to give guaranteed results. They are only obliged to defend a cause which they think to be right in the eyes of law. But that should not in over zeal prompt one to wilfully misrepresent oneself more so where the cause is to secure justice.
They are the instruments who are supposed to assist the Court in finding out the truth. They are engines of interpretive ideas to infuse life into the dead letter of laws. They enliven hope of justice like an oasis in the desert. The Courts through their devoted labour deliver justice. Judges who have taken oath discharge their onerous duties through these ministers of justice.
A lawyer’s pursuit should be what was professed by the great 19th Century American Statesman, William Lloyd Garrison, who while launching his new number “The Liberator” said, “I will be as harsh as truth and as uncompromising as Justice. I am in earnest–I will not equivocate–I will not excuse–I will not retreat a single inch–and I will be heard.”
The wisdom of the Courts are both sharpened and chiselled by the forensic arguments, representing deeper thoughts well dressed with logic, advanced by the lawyers. For students it is said that if they do not study well, they will miss school instead of vacations. If lawyers do not receive proper training, they will miss cases and clients. Improper behaviour and absence of courtesy might end up in what Lawyers detest most – loss of a Judge. A lawyer should be adept at expedients for avoiding any unpleasant predicament. He has to by dint of his profession, maintain dignified and respectable bearing in the Court. A lawyers conduct should reflect respectful obedience. Courtesy, consideration towards others and unselfishness are the sources of true politeness from which etiquette springs.
A person who chooses this vocation is not one who has been tossed into this world to be a sport of fortune ; one is supposed to train oneself, as the profession obliges service to the institution and service to the litigant whose interest is supreme to receive justice through the rule of law. The attire in roles of a lawyer is a respectable disguise. To hold on to such a respect would also require a disciplined character. The moment such a character is shed or given up, not only the attire but the person donning it loses respect. A lawyer should put all his genius into being heard by the Court, not for inviting hatred and contempt. The eloquence and speech of a lawyer should be direct and brilliant, but eminently self controlled and circumscribed by law. The logic and language should not be allowed to go tangent and should be rarely at fault, if not perfect. Speaking in a tongue which one does not altogether understand, should be avoided. It is not necessary to stoop to verbal vulgarity to receive attention. A corrupt reasoning of the mind becomes an instrument of dispute.
Fees always not matters
In 1874 Couch C. J. and Jackson J. of the Calcutta High Court condemned an advocate for having entered into a contract which was contrary to public policy. By the contract in question the advocate had agreed to receive as his professional fees a certain share in the subject-matter of the suit.–‘In the matter of Moung Htoon Oung 21 WB 297 (Cal) (C).
The same view was expressed by a Full Bench of the Calcutta High Court in 1900 in — ‘In the matter of an Advocate 4 Cal LJ 259 (D). Chief Justice Maclean, who delivered the principal judgment of the Full Bench observed that it is professional misconduct for an advocate to agree with his client to accept as his fee a share of the property, fund or other matter in litigation for his services as advocate in such litigation upon the successful issue thereof.
In — ‘R, An Advocate, In re AIR 1939 Mad 772 (E) a Full Bench of the Madras High Court has held that for an advocate to enter into an agreement by which he was to accept for his fees a certain proportion of the subject-matter of the suit amounted to professional misconduct of which the Court would take serious notice. In this case there were two agreements which the advocate had made with his client. By the first agreement the advocate had undertaken the liability to maintain the client and carry on the litigation. But by the second he had merely agreed to receive for his fees a certain share in the proceeds of the litigation. His conduct was condemned not only in respect of the first agreement, but also in respect of the second. The Punjab High Court have expressed the same view in — ‘In the matter of a Pleader of the Chief Court of the Punjab 69 Pun Re 1904 (F) and — ‘Ganga Ram v. Devi Das 61 Pun Re 1907 (G).
The Standard
Declining standards in the art of advocacy causes serious concern to all the stake holders involved in the mechanism of dispensation of justice, including the lawyers and the litigants. If this adverse and agonising trend is not reversed, with a sense of urgency, it would lead to disastrous consequences. The members of the Bar should not forget to remember that they are officers of the Court and that they have a legal obligation to aid the courts of law in performing their functions, in a smooth and efficient manner. Further, it is the primary duty of the Bar to keep a constant vigil in upholding the dignity and the decorum of the judiciary by cherishing, nurturing, preserving and practising the age old traditions of this great institution, which are worthy of emulation.
A concerted effort has to be made to arrest the contagious illness before it becomes cancerous and attains dangerous and unmanageable proportions, like a bubonic plague. There should, probably, be an open public debate, involving all the stake holders, who may have a say in the system of dispensation of justice. Unless we set our house in order, we may fail to keep the promises we had made when we gave to ourselves the sacred document called the Constitution of India, containing more than a million dreams.
In O.P. Sharma and Others Vs. High Court of Punjab and Haryana, the Supreme Court had reiterated the role of lawyers in the administration of justice. It had been held that a lawyer cannot be a mere mouthpiece of his client. He is under an obligation to uphold the rule of law and to ensure that the judicial system functions to its full potential. A lawyer should be dignified in his dealings with the Court, his fellow lawyers and the litigants. He should have integrity in abundance and should never do anything that erodes his credibility. He should faithfully abide by the standards of professional conduct and etiquette, prescribed by the Bar Council of India. He has an important social duty to perform, as an officer of the Court.
In a recent decision, a Division Bench of this Court, in S. Padma and Another Vs. The Chief Justice, High Court of Madras, Chennai 600104, had held that an Advocate, who is an officer of the Court, is bound to respect the Court and to maintain its dignity, decorum and majesty.
In his book titled ‘Dynamic Lawyering’, Justice V.R. Krishna Iyer has stated that lawyers are social engineers and are hallowed partners in securing a world order, a cosmos without chaos and an international order where jurisprudence never dwindles into the vanishing point. The Bar should be at war with injustice, as an equal partner in the judicial process.
Unless the long-cherished traditions and conventions of this Court are jealously guarded, respected and followed to their last details, the process of dispensation of justice may be pushed to the brink of disaster. Courts are not expected to tolerate uncouth and unacceptable behaviour from the members of the Bar. This Court may be failing in its duty if it does not express a word of caution in such matters. Further, it may be mistaken to be a tacit sanction or a weakness shown in the performance of its primary duty of rendering justice, without fear or favour, ill-will or affection.
Muted murmurs are heard from some segments of the society, reflecting their concern regarding the falling standards and the lack of professionalism amongst the members of the Bar, in general. Therefore, at this juncture, there is an emergent need for intense introspection before rigorous remedial measures are initiated to curb and to contain the malaise. Let the house be set in order before it becomes a loud chorus, and before it is too late to redeem the lost prestige of the noble profession. It is said that the Courts of law are the last resort of a common man on the streets. Let there be nothing done, by deeds or by words, to belie the high hopes the people of this nation have on this ‘last bastion’ of hope – the judiciary. Let there be a clear and definite resolve to revive and to restore the legal system to its old glory and to make it march forward in its quest for justice.
Scandalising the Court and the hostile criticism of Judges
The Hon’ble Apex Court in M.Y. Shareef and Another Vs. The Hon’ble Judges of The High Court of Nagpur and Others, as hereunder:
It cannot be denied that a section of the Bar is under an erroneous impression that when a counsel is acting in the interests of his client, or in accordance with his instructions he is discharging his legitimate duty to his client even when he signs an application or a pleading which contains matter scandalizing the Court. They think that when there is conflict between their obligations to the court and their duty to the client, the latter prevails. This misconception has to be rooted out by a clear and emphatic pronouncement, and we think it should be widely made known that counsel who sign applications or pleadings containing matter scandalizing the court without reasonably satisfying themselves about the prima facie existence of adequate grounds there for, with a view to prevent or delay the course of justice, are themselves guilty of contempt of court, and that it is no duty of a counsel to his client to take any interest-in such applications; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications.
(Emphasis supplied by us)
The Hon’ble Apex Court in the same decision also observed as hereunder:
We have no doubt that whatever the learned Judges of the High Court did in this case, they did in the firm belief that the dignity of the Court had to be maintained and the members of the Bar, howsoever big or learned, cannot be allowed to scandalize the judges or to divert the course of justice by attempting to take a case out from one Bench to another Bench of the Court when they find that the Bench is expressing opinions seemingly adverse to their clients.
It is also relevant to refer the decision of the Hon’ble Supreme Court in S.K. Sundaram In Re. reported in 2001 (2) SCC 171 2000 (1) L.W. 26. In the said decision earlier decision of the Hon’ble Supreme Court in Dr. Dt C. Saxena V. Hon’ble the Chief Justice of India reported in 1966 Crl.L.J. 3274 was referred to, wherein, after holding the contemnor as guilty of criminal contempt, the Hon’ble Apex Court observed as hereunder :
Scandalizing the court, therefore, would mean hostile criticism of Judges as Judges or judiciary. Any personal attack upon a Judge in connection with the office he holds is dealt with under law of libel or slander. Yet defamatory publication concerning the Judge as a Judge brings the court or Judges into contempt, a serious impediment to justice and an inroad on the majesty of justice. Any caricature of a Judge calculated to lower the dignity of the court would destroy, undermine or tend to undermine public confidence in the administration of justice or the majesty of justice.
In the same decision, the Hon’ble Apex Court further observed as follows :
Dealing with the imputation that the then Chief Justice of India deliberately and willfully failed to perform his duties the three Bench Judge Bench further observed thus :
It tends to lower the dignity and authority of the Court and also sows seeds for persons with similar propensity to undermine the authority of the Court or the judiciary as a whole; he crossed all boundaries of recklessness and indulged in wild accusations.
In yet another decision in Vishram Singh Raghubanshi Vs. State of U.P., , the Hon’ble Apex Court in paragraph 16 held as follows:
The dangerous trend of making false allegations against judicial officers and humiliating them requires to be curbed with heavy hands, otherwise the judicial system itself would collapse. The Bench and the Bar have to avoid unwarranted situations on trivial issues that hamper the cause of justice and are in the interest of none. “Liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the Judiciary”. A Lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client maligning the reputation of judicial officers merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalise the court which would shake the confidence of the litigating public in the system, would cause a very serious damage to the institution of judiciary. An advocate in a profession should be diligent and his conduct should also be diligent and conform to the requirements of the law by which an Advocate plays a vital role in the preservation of society and justice system. Any violation of the principles of professional ethics by an Advocate is unfortunate and unacceptable.
(Emphasis supplied by us)
In yet another decision O.P. Sharma and Others Vs. High Court of Punjab and Haryana, , the Hon’ble Apex Court held as follows :
The role and status of lawyers at the beginning of sovereign and democratic India is accounted as extremely vital in deciding that the nation’s administration was to be governed by the rule of law. They were considered intellectuals amongst the elites of the country and social activists amongst the downtrodden. The role of lawyers in the framing of the Constitution needs no special mention. In a profession with such a vivid history it is regretful, to say the least, to witness instances of the nature of the present kind. Lawyers are the officers of the court in the administration of justice. The Bench as well as the bar has to avoid unwarranted situations or trivial issues that hamper the cause of justice and are in no one’s interest. A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client in maligning the reputation of a judicial officer merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalise the court which would shake the confidence of the litigating public in the system and would cause a very serious damage to the name of the judiciary.
In the same decision, the Hon’ble Apex Court referred to an earlier decision in M/s. Chetak Construction Ltd. Vs. Om Prakash and Others, wherein it was held as hereunder :
Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and the rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be allowed to ‘terrorize’ or ‘intimidate’ Judges with a view to ‘secure’ orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it.
The fine art of advocacy suffers mayhem when irreverent men indelicately brush with it.
In Jaswant Singh Vs. Virender Singh and others, AIR 1995 SC 520 observed:
“It is most unbefitting for an advocate to make imputations against the Judge only because he does not get the expected result, which according to him is the fair and reasonable result available to him. Judges cannot be intimidated to seek favourable orders. Only because a lawyer appears as a party in person he does not get a licence thereby to commit contempt of the court by intimidating the Judge or scandalising the courts. He cannot use language, either in the pleadings or during arguments, which is either intemperate or unparliamentary. These safeguards are not for the protection of any Judge individually but are essential for maintaining the dignity and decorum of the courts and for touchy to fair and reasonable criticism of their judgments. Fair comments, even if, outspoken, but made without any malice or attempting to impair the administration of justice and made in good faith, in proper language, do not attract any punishment for contempt of court. However, when from the criticism deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to bring the administration of justice into disrepute the courts must bestir themselves to uphold their dignity and the majesty of law. The appellant, has, undoubtedly committed contempt of court by the use of objectionable and intemperate language. No system of justice can tolerate such unbridled licence on the part of a person, be he a lawyer, to permit himself the liberty of scandalising a court by casting unwarranted, uncalled for and unjustified aspersions on the integrity, ability, impartiality or fairness of a Judge in the discharge of his judicial functions as it amounts to an interference with the due course of administration of justice.”
Once a lawyer always a lawyer
In Seldom v. Croom-Johnson [1932] 1 KB 759; 16 TC 740, a question arose on a barrister’s Income Tax assessment whether his becoming a King’s counsel from his being a junior barrister would amount to setting up a new possession, Rowlett J. referred to the distinction between the setting up of a new profession and setting up of a new business. He observed that both the junior barrister and the king’s counsel carry on the same profession and the assessee was still acting in the same way as before, practising the art of advocacy, even before he became the King’s counsel. This decision is an illustration of the nature of the legal profession. Come what may, the legal profession remains the same. Once a lawyer always a lawyer. With the assessee’s expulsion from the law firm one chapter in his career was closed. But then it was the beginning of the next one. Legal profession at all times has been considered to be a profession and it is not like a trade or a business. The expression “commercial” primarily deals with the trade and business whereas the art of advocacy is skilled art and one has to acquire it by dint of his skill and legal study.
legal profession does not fall in the category of a trade or business; it is a profession which can only be practised by those who possess necessary and requisite skill in the subject which distinguishes it from any trading or business activity. Lawyers are the clan on priests of the temple of justice enjoined with the duty of constantly guarding the ivory gates of truth and wisdom. They possess the key to the gates of this institution and show the way to the portals of this temple where the common man seeks justice. Lawyers chivalrous devotion to a cause–binds him indissolubly to the cause of truth–One has to rise above attachment and repulsion to be free from passion in thought, word and deed away from fear and vanity.
