Much has been written, discussed and debated about the conduct of judges and advocates. However, we many times find the cases of indiscretion by judges and advocates as well; in and outside the courtrooms. Sometimes it is deliberate but more often than not, it because of misunderstanding and ignorance.
There is an Advocate act, which defines and demarcates the duties, rights and limitations of the advocates. Bar Council of India and the Bar Councils of the states derive their strengths and powers from the Advocate Act, 1961. Thus the Bar Council of India and Bar Councils of states are the statutory creations or bodies. On the other hand, judges are governed by the service rules and the code of conduct as formulated by the High Courts from time to time. Even the judges of the Supreme Court of India have framed the code of conduct for themselves regarding the declaration of assets etc. The maintenance of dignity and the decorum, however, largely depends on the particular judge.
As far as the lower judiciary is concerned it has to go by the rules framed by the respective High Courts. The high Courts are vested with supervisory powers over the lower judiciary by virtue of Article 227 of the constitution of India. Under Article 123, the Supreme Court and under Article 215 of the Constitution of India, the High Courts are ‘the courts of the record and shall have all the powers of such a court including the powers to punish for contempt of court itself’. It is an altogether different whether these powers have given to maintain the majesty of law or satisfy the arrogance and ego of the judges. It has been made abundantly clear that this power is meant to be used against those, who disrespect and disregard the orders or the judgements passed by it. Powers of the contempt court, on the other hand, should very sparingly be used for the disrespect shown to any particularly judge. This is like a sword to be shown and most rarely to be used.
The lower judiciary of the states has to work under the supervision of the High Courts; therefore, it does not have the powers to punish for contempt of itself. If any judge of the lower court considers that somebody has shown disrespect to the court, s(h)e has to write to the concerned High Court making out the case of the Contempt of the Court.
But one generally comes across the judges overstepping the limits of their powers as it has happened on 28th of April in a district court of Dwarka, Delhi. It is alleged that two advocates were trying to browbeat a judge in the courtroom and in the heat of passion and excitement, the judge ordered the police to take the advocates under judicial custody. The reaction was of the strong resentment and in protest the lawyers of all five district courts of Delhi went on strike on 29th April against the misdemeanour of the judge.
There is no doubt, that lot of lawyers behave unscrupulously and that is why; they are taken to task or even punished by the respective Bar Councils but there is no dearth of such judges who are crude, inefficient and uncouth in their behaviour and conduct. Anybody, who is practising in the litigation side, will bear testimony to the fact, that many judges wear chips on their shoulders and throw their tantrums in the court rooms in most ludicrous manner. They behave in highly undignified and unbecoming manner worthy to be condemned roundly.
Bar Associations are supposed to identify such judges and ask them to mend their ways but if they do not heed to their polite suggestions, Bar Associations must take up the matter to the concerned High Court. The High Courts must immediately look into the matter as it concerns to the delicate issue of the relationship between the judges and lawyers. No court can function in the absence of either judge or lawyer and it ought to be understood that they are there to help provide justice to the people. Lawyers and judges both must have to have the commitments for the people and the society. No good judgment can be written without the help of the lawyers and no justice can be had without a sensitive and knowledgeable judge.
Unfortunately, most of the judges suffer from the repulsive arrogance and hardly read or reflect on the laws, the trends and obtaining current atmosphere in the field of law. What is true of such judges is equally true for the lawyers. Therefore, it will be a great service indeed to the cause of justice, if the Bar Associations, Courts, Bar Councils and Judicial Academies organise, from time to time, the workshops and seminars separately and jointly for the training and orientation of judges and lawyers both. Both are considered to be the officers of the court. The value and the dignity of the courts and the majesty of the law can be maintained only when both behave decently, courteously, with mutual respect of each other as well as with litigants. The strike by the lawyers is never welcome but hopefully, this strike will serve some useful purpose.
MISUSE OF POWER
Lord Denning in his book ‘ What next in the Law’ has categorically said that it is the duty of judges to administer and apply the law of land, if they divert or depart from it and do so knowingly then they themselves would be guilty of misuse or abuse of power.
The judges or govt. officials are the public servants. The actual powers are vested to the people of this country, ‘we the people of India.’ The powers of people have been assigned to the public servant through law to use or exercise it in accordance with the law of the land. Sometime the officials forget it and behave in arbitrarily and whimsically, without keeping in mind the law of the land. Although we are living in a democratic country but our’s mentality are still feudal. Law casts a duty to use power in accordance with the law and in the larger interest of society and not to misuse it.
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You have rightly written in your article, ‘Tantrums of judges betray their lordliness. A judicial officer should exercise his power in restrained manner and he should not get provoked easily as in the case of Dwarka court.
————— Radha Krishna Kumar.