I have great respect for judiciary and legal profession. I have heard about the eminent lawyers in India like H.M. Seervai and his courage and commitment to the chosen principles. I have studied that he was so courageous and never compromised with his chosen principles in legal profession and successfully held the post of Advocate-General of Maharashtra for 17 years continuously and even when he was acting as an Advocate-General of a State, he had his own reservations when it comes to defending the actions of the state. When I was a student, I had the privilege of studying his commentary on constitutional law and I have concentrated on his comment “breach of privileges case” and as everybody admit, such courage and conviction is lacking among legal professionals today. How many Senior Advocates are expressing their views or raising their voice for the betterment of legal profession? How many Senior Advocates or legal professionals are critical of judiciary and had the courage to say that something is wrong openly without any vested interest? I don’t think that we have so many legal professionals in India who are concerned at the lost dignity of the legal profession now and it is really unfortunate for the future of the profession and also to the society.
It is settled that, in India, our Constitution is supreme and the constitutional review power is conferred on constitutional courts. Judiciary is regarded as independent in India and we have seen very good judgments from the Constitutional Courts in the past and, of late, the judiciary and also legal profession is loosing its respect among public and there is urgency to restore the lost dignity of the legal profession. Atleast now, I think the Government is focusing on the legal reforms and I think that the Judiciary will be able to get its dignity back soon. People of India require independent, impartial and effective judicial mechanism and there can not be any meaning to democracy if we fail to provide an effective judiciary to the people. There is a feeling that standards in legal profession are going down day-by-day and efforts are taken now to ensure standards in profession. We need so many reforms in legal education, legal profession and in judiciary.
When I think so deep as to why the legal system has become like this, I found that it is the result of silence on the part of the people who should speak and more greed rather the social consciousness and social responsibility. I think that there is nothing wrong if a legal professional wants to make money in profession, but, he should, at the same time, adhere to some principles and should be concerned at the dignity of the profession too. I have seen and observed some judges whose attitude while they are on the bench is unreasonable and it tend to happen at times. Despite the clear unreasonableness in behavior and departure from the settled judicial practice and principles, no advocate is expressing their strong opposition to such an unreasonable behavior thinking about their practice and future. When some judge is wrong clearly, then, it is the responsibility of legal professionals to point-out that wrong courageously and while pointing-out the mistake, the legal professional should also adopt a reasonable and acceptable approach.
I have personally seen few occasions where I had to be very strong in Court and expressing my strong opposition to the Judge. In my opinion, I was right in expressing my opposition in a reasonable way and I am supposed to that. But, much advice me that what I have done is not right and I should never and ever express my opposition to a proceeding in Court as it will affect my professional career. By nature, I could not tolerate if my dignity is affected and most of the times, I will be blunt in expressing my view and I do not know the cost of my approach as few of Senior Advocates who express their concern over me think. Some Senior Advocate who express concern over my future said “pen is powerful than tongue”. Yes, I do understand as to what they say. In the past, I had to represent a matter before High Court and some Senior Advocate is appearing opposite to me. Even without hearing my submission, the Hon’ble Judge has posed a question to me and he is about to pass an adverse order without even listening to me. In that case, I was relying on a judgment of the bench of Hon’ble Supreme Court. I was strong to say that I have a right to make my submission and I made my submission and finally, the judge went on passing a pre-concluded order showing his power and I don’t think that was the right attitude of a Court. I have seen some occasions like this and in many cases, the lawyers are silent and they never raise their voice in an acceptable manner thinking about their future in profession. It is also true that one should be submissive, polite and give all the required respect to the Judge and the Court and at the same time, a legal professional need not compromise with his dignity.
But, one thing may be right that if someone is so straight and fight without much support with a very strong opposition, then, there tend to problems. But, silence on the part of the people who are not supposed to be silent always, is a dangerous precedent and it should not continue. I have a great respect for judiciary and legal profession. I have studied excellent judgments of Indian Constitutional Courts while entertaining Writ Petitions under Article 226 and under Article 32 of Constitution of India and I have enjoyed those judgments guiding the government and the society. I know the difficulties of a legal professional if he wants to be independent and if he wants to emerge as a successful practitioner. I know the ability of a deserved Senior Advocate and we all know as to how some Advocates are taking active part in political system in India and guided the nation and guiding the country.
Silence on the part of the legal professionals at the irregularities or the unreasonable practice in profession or judiciary is a dangerous thing and the younger generation lawyers should take the responsibility of correcting the system without following the unabated silence on the part of many established legal professionals in India. If an independent person comments on Judiciary, it is likely that contempt action be taken, but, of late, with the public uproar and support, the reasonable criticism is not oppressed. Once we used to hear the words from politicians and even from the government that “matter is sub-judice”. People used to exercise so much restraint when the matter was under the consideration of Judiciary. But, now, media is conducting the trial and giving an independent judgment over the judgment of Judiciary and they are even attacking the judges of constitutional courts directly referring their right under Article 19 of Constitution of India. All these things expose that the Judiciary and legal profession requires lot of concentration by the Government, the concerned Ministry, the Bar Council, the Bar Associations and also the legal professionals. The younger generation lawyers are facing so many difficulties with the attitude of some judges and actually the younger generation and efficient legal professionals should be encouraged in legal profession. I could overcome the difficulties and get my work done, but, we should never forget the system and dignity of the legal profession and Judiciary.
Note: I know that there are exceptional judges and judges who follow a good practice while they are on the bench and I have no intention whatsoever to insult anyone or the system and I have expressed opinion as an ordinary person concerned at the system.
Author:
V.DURGA RAO, Advocate, Madras High Court.
Email: [email protected]
A very timely piece in the Indian context. Our lawyers and judges may read Lord Denning and the satires of Henry Cecil.
I may perhaps add that the legendary Mr. Justice Bhagwati had long ago observed in his golden words in the Distributors (Baroda) Pvt. Ltd vs Union Of India & Ors [1985 AIR 1585 1985 SCR Supl. (1) 778;1986 SCC (1) 43 1985; SCALE (1)1216] as under:
“To perpetuate an error is no heroism. To rectify it is the compulsion of
judicial conscience. In this we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter A.M.Y. at page 18: ‘a Judge ought to be wise enough to know that he is fallible therefore everyday to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors’.”
The article is indeed thought provoking. The author has portrayed the ground realities in a succinct manner. Any number of reforms would not help us, unless there is change in the attitude of individuals. After all, the advocates are also human beings with emotions and feelings and have to safeguard their practice and future. As rightly put it by the author, contempt action can be taken if it is individiual, on the other hand if it is public uproar there shallbe a reasonable solution.
Article is a good eye opener. But will the judge who err will amend their behaviour?
I have seen when SLP is heard amongst division bench, with the noice in the court will the Judges ever heard what the Advocates of both sides said about their pleadings? So much is to be done, and more spaces is required for the Court to concentrate on the cases, and to hear the party. Judges are under pressure so matter needs review by all in the Judicial Practice.