Bar and Bench: What the Relationship Is, and Why It Matters

A hearing. The right of audience is what the profession exists on, and it is the court that grants it, as chapter [Contempt by an Advocate, and the Two Jurisdictions That Bite] shows through Pravin C. Shah v. K.A. Mohd. Ali, AIR 2001 SC 3041.

The duties that express the relationship

The relationship is not an abstraction; it is a set of enforceable rules on one side and a set of powers on the other.

On the Bar's side, Section I of the Bar Council of India Rules, taught in chapter [Duty to the Court: Rules 1 to 10]:

• Rule 1: dignity and self-respect, not servile, and a right and duty to complain properly about a judicial officer.
• Rule 2: a respectful attitude, because the dignity of judicial office is essential for the survival of a free community.
• Rule 3: no influencing the court by illegal or improper means, and no private communications with a judge about a pending case.
• Rule 4: restrain the client, refuse to act if he persists, use restrained language.
• Rule 6: no appearing before a court of which a listed relation is a member.

On the Bench's side, the contempt jurisdiction under Articles 129 and 215 and the Contempt of Courts Act, and the power to make rules regulating practice under section 34(1) of the Advocates Act.

And a shared limit. In Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, the Constitution Bench held that the court may not take over the Bar Councils' disciplinary function. The Bar polices its own members; the Bench polices its own proceedings.

The friction points

An examiner asking about Bar-Bench relations is usually asking where they go wrong, and there are four recurring points, each with authority.

Strikes and boycotts. The sharpest. In Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, a Constitution Bench held that lawyers have no right to strike or to give a call for boycott, not even a token strike; that lawyers holding vakalatnamas cannot fail to attend; that all lawyers must boldly refuse to abide by such a call; and that courts are under no obligation to adjourn and must go on with the matters on their boards even in the absence of lawyers. Only in the rarest of rare cases, where the dignity, integrity or independence of the Bar or Bench is at stake, may a court turn a blind eye to an abstention of not more than one day, and then only after the President of the Bar has consulted the Chief Justice or District Judge, whose decision is final.

Discourtesy in court, and contempt. Vishram Singh Raghubanshi v. State of Uttar Pradesh, AIR 2011 SC 2275, and In Re: Vinay Chandra Mishra, (1995) 2 SCC 584, where an advocate was found to have tried to threaten, overawe and overbear the court by using insulting, disrespectful and threatening language.

Allegations against judges. E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, AIR 1970 SC 2015, on scandalising the court; and on the other side P.N. Duda v. V.P. Shiv Shankar, AIR 1988 SC 1208, holding that the administration of justice and judges are open to public criticism and that the path of criticism is a public way.

Delay and adjournments. N.G. Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028, where seeking adjournments to postpone the examination of witnesses present in court was held a dereliction of the advocate's duty to the court and capable of amounting to misconduct.

Section 6 of the Contempt Act: the Bar's protected right to complain

This is the provision that keeps the relationship from becoming one of mere deference, and it is the single most useful thing in this chapter.

Section 6: "A person shall not be guilty of contempt of court in respect of any statement made by him in good faith concerning the presiding officer of any subordinate court to (a) any other subordinate court, or (b) the High Court, to which it is subordinate."

Read it with rule 1 of the Bar Council rules, under which, whenever there is proper ground for serious complaint against a judicial officer, it is the advocate's right and duty to submit his grievance to the proper authorities.

Together they define the lawful channel. An advocate who believes a subordinate judge is corrupt is required by rule 1 to complain, and is protected by section 6 if he does so in good faith and to the High Court. The same statement made in the courtroom, or to a newspaper, has neither the rule's protection nor the section's.

That is the balance of the whole topic: respect is owed to the office, not silence about the officer.

What the relationship is not

Three misconceptions, and correcting them is worth marks.

It is not deference. Rule 1 says an advocate shall not be servile. An advocate who does not press a point because the judge dislikes it fails his client and the court.

It is not friendship. Rule 3 forbids private communications with a judge about a pending case, and rule 6 bars appearing before a court of which a close relation is a member. Proximity is regulated precisely because the relationship is institutional.

It is not equality of function. The Bar argues; the Bench decides. An advocate who forgets that ends in contempt; a judge who forgets it decides the case for the party rather than on the material.

A worked example

A District Judge is repeatedly hostile to Mr Deshmukh's client and makes remarks in open court suggesting the case is fabricated before any evidence is led.

What may Mr Deshmukh do in court? Under rule 1 he must conduct himself with dignity and self-respect and shall not be servile, so he may and should say, respectfully, that no such finding is on the record and ask that the matter be decided on the evidence. Under rule 2 he must maintain a respectful attitude.

What may he not do? Accuse the judge of corruption in open court. That is limb (i) of section 2(c), scandalising the court, and it is contempt in the face of the court under section 14.

What if he genuinely believes the judge is taking money? Rule 1 makes it his right and duty to submit the grievance to the proper authorities, and section 6 of the Contempt Act protects a statement made in good faith concerning the presiding officer of a subordinate court when made to the High Court to which it is subordinate.

What if he tells a journalist instead? Section 6 does not apply, because the statement was not made to the High Court or another subordinate court, and rule 1 speaks of the proper authorities. He is exposed to a contempt proceeding and to a complaint under section 35.

The Bar Association resolves to boycott that judge's court. On Harish Uppal there is no right to strike or boycott, lawyers holding vakalatnamas cannot stay away, all lawyers must boldly refuse the call, no Bar Association may even permit a meeting to consider one, and the court is under no obligation to adjourn.

Change one fact. Suppose the grievance is that the judge has been transferred for deciding against the State, which the Bar says threatens judicial independence. That is capable of engaging the rarest of rare exception in Harish Uppal, where the dignity, integrity or independence of the Bar or the Bench is at stake, but it permits an abstention of not more than one day, it is for the court to decide whether the issue qualifies, and the President of the Bar must first consult the Chief Justice or District Judge, whose decision is final.

Quick revision

• Bar = advocates collectively; Bench = the judges. They are two halves of one institution.
• The Bench depends on the Bar for the material, for candour (D.P. Chadha), for the representation of unpopular parties (rule 11), and for its own future members.
• The Bar depends on the Bench for an independent forum, for protection in putting an unpopular case (rule 15), and for the right of audience (Pravin C. Shah).
• The Bar's duties: rules 1, 2, 3, 4 and 6. The Bench's powers: contempt under Articles 129 and 215, and rules under section 34(1). The shared limit: Supreme Court Bar Association, the court may not take over the Bar Councils' disciplinary function.
• Friction points: strikes (Harish Uppal), discourtesy and contempt (Vishram Singh Raghubanshi, Vinay Chandra Mishra), allegations against judges (Namboodiripad, against P.N. Duda), and delay (N.G. Dastane).
• Section 6 of the Contempt Act protects a statement made in good faith about a subordinate court's presiding officer to another subordinate court or the High Court, which is what makes rule 1's duty to complain workable.
• The relationship is not deference, not friendship, and not equality of function.

Test yourself

1. Name three things the Bench depends on the Bar for. The material on which it decides, since a judge decides on what is put before him; candour, since he cannot verify every authority, document or instruction, as D.P. Chadha requires; and the representation of unpopular parties, which the cab-rank principle in rule 11 secures. The Bench is also drawn from the Bar.

2. How does an advocate lawfully complain about a corrupt subordinate judge? By submitting the grievance in good faith to the proper authorities, which rule 1 of the Bar Council rules makes his right and duty, and specifically to the High Court to which that court is subordinate, or to another subordinate court, which section 6 of the Contempt of Courts Act protects from being contempt.

3. Why is the same allegation made to a newspaper unprotected? Because section 6 protects only statements made to another subordinate court or to the High Court to which the court is subordinate, and rule 1 speaks of the proper authorities. A statement to the press falls outside both, and is exposed to proceedings for criminal contempt under section 2(c) and for misconduct under section 35.

4. What did Harish Uppal decide about strikes, and what is the single exception? That lawyers have no right to go on strike or to give a call for boycott, not even a token strike; that lawyers holding vakalatnamas cannot fail to attend; that all lawyers must boldly refuse such a call; and that courts are under no obligation to adjourn. The exception is confined to the rarest of rare cases where the dignity, integrity and independence of the Bar or the Bench is at stake, for an abstention of not more than one day, the court deciding whether the issue qualifies, and only after the President of the Bar has consulted the Chief Justice or District Judge, whose decision is final.

5. Is the relationship one of deference? No. Rule 1 requires an advocate to conduct himself with dignity and self-respect and provides that he shall not be servile, while also requiring a respectful attitude under rule 2. Respect is owed to the office, not silence about the officer.

6. Which case holds that judges are open to public criticism? P.N. Duda v. V.P. Shiv Shankar, in which the Supreme Court held that the administration of justice and judges are open to public criticism and that the path of criticism is a public way, while also dealing with the requirement of the Advocate-General's consent under section 15.