The Role of the Bar in Strengthening Bar-Bench Relations

A Bar Council that acts promptly on a complaint strengthens the relationship more than any resolution of goodwill.

Two: refuse to strike

On Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, lawyers have no right to strike or to give a call for boycott, not even a token strike; all lawyers must boldly refuse to abide by such a call; no Bar Council or Bar Association may permit a meeting to be called to consider one, and a requisition for such a meeting must be ignored; and no adverse consequence, threat or coercion, including expulsion, may be visited on a lawyer who refuses.

So the Bar's contribution here is a negative duty, and it is the clearest one in the whole topic: the single most damaging thing a Bar Association does to the relationship is to stop work.

Three: complain through the proper channel

Rule 1 of the Bar Council rules makes it the advocate's right and duty to submit a serious grievance against a judicial officer to the proper authorities, and section 6 of the Contempt of Courts Act protects a statement made in good faith about a subordinate court's presiding officer when made to the High Court to which it is subordinate.

A Bar that uses that channel keeps its criticism effective. A Bar that uses the newspapers converts a grievance into a contempt.

Four: keep the court's time

N.G. Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028, holds that seeking adjournments to postpone the examination of witnesses who are present in court, without making other arrangements, is a dereliction of the advocate's duty to the court, and the Court's reasoning is about the witnesses: they come because they have no other option, they are responsible citizens with their own work, and they cannot be told to come again and again to suit the advocate's convenience.

Practical contributions follow: accurate time estimates, agreed lists of dates, admissions of documents that are not really in dispute, and mentioning matters that will not be reached.

Five: help the court get the law right

D.P. Chadha v. Triyugi Narain Mishra, AIR 2001 SC 457: a lawyer must not hesitate in telling the court the correct position of law and must not be a party to misleading it. That includes citing the authority that is against him.

Rule 16 obliges a prosecutor to conduct the prosecution so that it does not lead to the conviction of the innocent and scrupulously to avoid suppressing material capable of establishing innocence. A Bar that behaves that way is worth more to a court than one that wins.

Six: represent the unpopular

Rule 11, the cab-rank principle, and rule 15, which requires an advocate to defend an accused regardless of his personal opinion as to the guilt of the accused, because his loyalty is to the law which requires that no man should be convicted without adequate evidence.

A court cannot decide fairly against a party who was never heard. The Bar's willingness to appear for the unpopular is therefore a direct service to the Bench.

Seven: the institutional machinery

Bar-Bench committees or liaison committees, in which the Bar Association and the judges of a court meet to settle listing practice, court hours, infrastructure and grievances, are the ordinary vehicle. They have no statutory basis, and an answer should say so; their authority comes from section 6(1)(dd), the promotion of Bar Associations, and from practice.

Full court references, welcome and farewell functions, and Bar Association participation in court committees are the visible expressions.

The Bar's role in appointments, stated carefully

Students often assert that the Bar has a role in the appointment of judges. Be precise, because an unqualified claim is wrong.

What is true. Most judges are appointed from the Bar, so the Bar is the pool. Consultation with senior members of the Bar happens in practice. And section 16(2) of the Advocates Act gives the courts, not the Bar Councils, the power to designate senior advocates, which is one formal point of contact between them, dealt with in chapter [Designation as Senior Advocate: Section 16, and Indira Jaising].

What is not true. The Advocates Act gives Bar Councils no role in the appointment of judges, and the constitutional provisions on appointment do not mention them.

What weakens the relationship

An answer is stronger for saying what the Bar should not do, and each of these has authority behind it.

• Strikes and boycotts. Harish Uppal.
• Attacks on judges outside the proper channel. Namboodiripad, and section 6 of the Contempt Act by contrast.
• Discourtesy in court. Rules 1 and 2; Vishram Singh Raghubanshi.
• Seeking adjournments to wear the other side down. N.G. Dastane.
• Tolerating misconduct among its members. Shambhu Ram Yadav on the heavy responsibility of those vested with the duty to act.
• Soliciting and touting. Rule 36 and section 45A; Bar Council of Maharashtra v. M.V. Dabholkar, AIR 1976 SC 242, where advocates stationed themselves at the entrance to the Magistrates' Courts and rushed at arriving litigants in a scrimmage to snatch briefs.

A worked example

A District Bar Association is unhappy: listing is chaotic, one judge is habitually late, and a member has been publicly criticised from the Bench. It considers three responses.

Proposal one: a one-day token strike. Impermissible on Harish Uppal. There is no right to strike, not even a token strike; members holding vakalatnamas cannot stay away; the Association may not even hold a meeting to consider the call, and a requisition must be ignored; and no member who refuses may be threatened or expelled. And the court is under no obligation to adjourn.

Proposal two: a press statement accusing the judge of bias. Exposes the maker to criminal contempt under section 2(c)(i), and gains nothing. Section 6 of the Contempt Act protects a good faith statement about a subordinate court's presiding officer only when made to the High Court or another subordinate court.

Proposal three: a written representation to the High Court, and a request for a Bar-Bench committee meeting on listing. This is the course the law contemplates. Rule 1 makes a properly channelled grievance the advocate's right and duty; section 6 protects it if made in good faith to the High Court; and the committee route rests on section 6(1)(dd) and on practice.

And what the Association can do about its own member who was criticised for repeatedly seeking adjournments: on N.G. Dastane that conduct is capable of being professional misconduct, and under section 6(1)(c) it is the State Bar Council's function to entertain and determine such cases. The Association's contribution is to stop defending the indefensible.

Quick revision

• Ground every point in a statutory function: section 6(1)(c) discipline, 6(1)(d) safeguarding advocates, 6(1)(dd) promoting Bar Associations, 6(1)(e) and 7(1)(e) law reform, 6(1)(eee) and 7(1)(ib) legal aid, 7(1)(b) standards of conduct, 7(1)(h) and (i) legal education.
• Seven contributions: discipline its members; refuse to strike; complain through the proper channel; keep the court's time; help the court get the law right; represent the unpopular; and run Bar-Bench committees.
• Authorities: Shambhu Ram Yadav (a heavy responsibility to take disciplinary action; the profession is not a trade); Harish Uppal (no strike, no boycott, no meeting to consider one, no coercion of those who refuse, and no obligation on courts to adjourn); rule 1 with section 6 of the Contempt Act (the lawful channel for a complaint); N.G. Dastane (adjournments and witnesses present in court); D.P. Chadha (tell the court the correct position of law); rules 11, 15 and 16 (the unpopular client and the prosecutor's duty); Dabholkar (soliciting).
• On appointments: the Bar is the pool and is consulted in practice, but the Advocates Act gives Bar Councils no role in appointing judges. Section 16(2) gives designation of senior advocates to the courts.

Test yourself

1. Name four statutory functions of the Bar Councils that bear on Bar-Bench relations. Entertaining and determining cases of misconduct, section 6(1)(c); safeguarding the rights, privileges and interests of advocates, section 6(1)(d); promoting the growth of Bar Associations, section 6(1)(dd); and organising legal aid to the poor, sections 6(1)(eee) and 7(1)(ib). Laying down standards of professional conduct under section 7(1)(b) and promoting legal education under section 7(1)(h) and (i) also qualify.

2. What is the Bar's most important negative duty in this field? Not to strike or boycott. On Harish Uppal there is no right to strike, not even a token strike; lawyers holding vakalatnamas must attend; no Bar Council or Bar Association may permit a meeting to consider such a call and a requisition must be ignored; and no adverse consequence, threat or coercion including expulsion may be visited on a lawyer who refuses.

3. How should a Bar Association raise a grievance about a subordinate judge? By a representation made in good faith to the High Court to which that court is subordinate, which section 6 of the Contempt of Courts Act protects and which rule 1 of the Bar Council rules makes the advocate's right and duty as a complaint to the proper authorities.

4. Which case makes the Bar's own discipline a contribution to the relationship, and how? Shambhu Ram Yadav v. Hanuman Das Khatry, which states that the legal profession is not a trade or business but a noble profession, that its credibility and reputation depend on how its members conduct themselves, and that there is a heavy responsibility on those in whom the Advocates Act vests the duty to take disciplinary action when that credibility comes under a cloud.

5. Does the Bar have a role in appointing judges? Not under the Advocates Act, which gives Bar Councils no such function, and the constitutional provisions on appointment do not mention them. In practice the Bar is the pool from which judges are drawn and senior members are consulted, and section 16(2) gives the designation of senior advocates to the courts rather than to the Bar Councils.

6. Give two ways in which the Bar saves the court's time, with authority. By not seeking adjournments to postpone the examination of witnesses who are present in court, which N.G. Dastane holds to be a dereliction of the advocate's duty to the court; and by telling the court the correct position of law rather than being a party to misleading it, which D.P. Chadha requires, including by citing authority that is against one's own case.