Bar-Bench relations

1. Why the relationship matters

The Bar and the Bench are two wheels of one chariot. Judges are drawn largely from the Bar; the Bar depends on the Bench for a fair hearing. A judge decides on the material and arguments placed before him, so the quality of justice depends on the honesty and competence of the advocates. The advocate in turn depends on the judge’s patience and impartiality. Mutual respect is not a courtesy but a condition of the administration of justice. When the relationship sours, the litigant suffers first: adjournments, delay, and loss of confidence in the courts.

2. What the Bar owes the Bench

• Respect for the office (Rule 2), and dignity without servility (Rule 1).
• Candour. No misleading statement of fact or law; disclose adverse binding authority.
• No private approach to the judge about a pending case (Rule 3).
• Temperate language in pleadings and argument (Rule 4).
• Proper channel for grievances. A complaint against a judge goes to the proper authority (the Chief Justice, the administrative judge or the High Court for a subordinate court), not to the press or the courtroom (Rule 1). Section 6 of the Contempt of Courts Act, 1971 protects a good-faith complaint about a subordinate judge made to the High Court or another subordinate court.
• Punctuality and preparation, so that court time is not wasted.
• No strikes or boycotts: Ex-Capt. Harish Uppal v. Union of India, 2002 INSC 523, (2003) 2 SCC 45.

3. What the Bench owes the Bar

• Patience and courtesy. A judge must hear counsel fully and avoid sarcasm or humiliating remarks, especially to juniors.
• Impartiality. No favouritism to particular counsel. The Restatement of Values of Judicial Life adopted by the Supreme Court in 1997 asks judges to avoid close association with individual members of the Bar who practise before them, and not to hear a case in which a member of their family appears.
• Punctuality in sitting, and prompt delivery of judgments.
• Restraint in remarks. Adverse observations against counsel in a judgment should be made only where necessary and after giving an opportunity to explain.
• Respect for the independence of the Bar. The judge controls the court, but should not intimidate an advocate into abandoning a legitimate argument.

4. How it breaks down

• Insult to the judge. In In re Vinay Chandra Mishra, 1995 INSC 179, (1995) 2 SCC 584, a senior advocate who was also Chairman of the Bar Council of India shouted at and threatened a judge of the Allahabad High Court in open court when questioned. The Supreme Court found him guilty of criminal contempt. The case shows that seniority in the Bar is no protection.
• Strikes. In Harish Uppal the Court held that lawyers have no right to strike or to call for a boycott, that only in the rarest of cases involving the dignity, integrity and independence of the Bar or the Bench may the court overlook a protest abstention not exceeding one day, and that peaceful protest outside court hours is the proper course.
• Consequences for the client. In Ramon Services Pvt. Ltd. v. Subhash Kapoor, 2000 INSC 519, a suit was decreed ex parte because the defendant’s advocate stayed away during a strike. The Court held that in future the advocate would himself be answerable for the consequences to the party, and the litigant could sue him for damages.
• Judicial discourtesy provokes the Bar and is a frequent cause of local boycotts. The remedy is a complaint to the Chief Justice, not a strike.

5. Problem

An advocate did not attend court in pursuance of a strike call by the Bar Association, and his client’s case was dismissed. Does this amount to misconduct?

Issue. Whether abstaining from court on a strike call, to the prejudice of the client, is professional misconduct.

Law. Rule 12: an advocate shall not ordinarily withdraw from an engagement without sufficient cause and reasonable notice. Rule 15: he must fearlessly uphold the client’s interests. Harish Uppal: lawyers have no right to strike; an advocate who has accepted a brief is bound to attend court; a strike call is not a valid reason for non-appearance, and the Bar Association cannot compel him to abstain. Ramon Services: the advocate is answerable for the consequences and may be sued for damages.

Application. The advocate accepted the brief and owed a duty to appear. He was not absent for illness or any personal emergency; he chose to obey the Bar Association’s call. That is not sufficient cause. He did not even arrange for a colleague to seek an adjournment or inform the client so that the client could appear in person. The client has lost his case because of a decision taken for the convenience of the Bar. Unless the abstention fell within the narrow one-day protest the Supreme Court tolerated in the rarest of cases, the advocate has failed in his duty to the client and to the court.

Conclusion. Yes, it is professional misconduct for which the client may complain to the State Bar Council under section 35. The advocate should at once apply, at his own cost, to restore the case (for a civil suit, under Order IX Rule 9 of the Code of Civil Procedure). The client may also sue him for damages under Ramon Services. A Bar Association office-bearer who calls the strike may himself be proceeded against.

How this is examined

Write the theory answer as above, ending with a paragraph on strikes and Harish Uppal. For the problem, the three authorities are Rules 12 and 15, Harish Uppal and Ramon Services. A one-line reference to the Restatement of Values of Judicial Life shows that the duty runs both ways.