Dire need for sobriety in bar-bench relations

It was riveting drama on 5th Dec,2019, at Court No.3 of the Supreme Court. Senior Advocates had taken their front row seats. Justice Arun Mishra opened up to the assembled members of the Bar, “If anyone feels hurt, an animal or a tree even, am ready to apologise. I know you’re not seeking an apology but I do apologise to any living creature. He is half of our age. Even to those much younger, I apologise a hundred times”, This, is in the context of Justice Mishra attempting to shut down Senior Advocate Gopal Sankaranarayanan (GSN), with threat of contempt action during the hearing of Indore Development Authority case, on a reference to the Specially constituted bench.

In the now vexed litigation, with a chequered past, the meaning and import of the expression “paid’ in the context of Land Acquisition law was under consideration. Differences arose between benches and it was suggested that law of precedents had gone for a toss and basic rules of propriety were disregarded, when a bench led by Justice Mishra toed a different line.

Chief Justice Ranjan Gogoi (Retd.), referred the issue to a larger bench with Justice Arun Mishra presiding. Serious reservations were expressed by Senior Advocates and GSN was prominent among those, in requesting Justice Mishra to recuse himself, as he had ‘made up his mind on the cause already’. Justice Mishra contemptuously wrote the order from the bench, declining to recuse himself and accusing the complaining Bar of literally ‘Bench Hunting’.

In heated exchange of words, before the 5 Judges’ bench, Justice Arun Mishra threatened the advocate that he would be visited with contempt proceedings for his ‘disrespectful submissions despite being requested to refrain from it ’. GSN staged a walkout.

This prompted the Supreme Court Advocates on Record Association (SCAORA) to pass an emergency resolution on 4th Dec,2019. “The Executive Committee of SCAORA expresses its deep concern over the threat of contempt proceedings and conviction by Justice Arun Mishra to GSN, while he was performing his professional duties. Several members of the Bar have repeatedly been raising such grievance about the unwanted treatment and passing personal remarks by Justice Mishra. The duty to maintain court’s dignity and decorum was upon both lawyers and judges.We request Justice Mishra to be little bit more patient in dealing with lawyers”.

It is in the wake of the above said sequence of events, that the apology came from Justice Arun Mishra. Meanwhile, Justice Markandey Katju (Retd.) has beseeched restraint to be exercised by his younger brothers on the Bench. It makes interesting reading, for how can one forget what transpired in the Supreme Court on Nov,2011, 2016. In an unprecedented move, a three-judge bench of the Supreme Court of India led by Justice Ranjan Gogoi issued a notice of contempt to former apex court judge Markandey Katju. High drama was also witnessed when escorts were summoned to take Justice Katju out of court after a heated argument between him and Justice Gogoi. Katju was asked to appear before the Supreme Court in the Soumya Rape case. He had written a blog criticising the judgment in the Soumya rape and death case and calling it “grave miscarriage of justice”. A furious Justice Katju hit back by saying that this is not the way that the Supreme Court of India should behave and he was not scared of the consequences. All is well that ends well, when Justice Katju apologised and the contempt proceedings were closed. And now the self same Katju saab is counselling his younger brothers!

Let us be clear. The Court proceedings are a tense affair. In sensitive cases, it turns into a cauldron. The Ramjanbhabhoomi case, for one, was a classic example, and not necessarily an extreme one. As Nani Palkhivala once said, “Lawyers devoted to the cause could get passionate. Expressions they abhor can get uttered, in the heat of the moment. To err is human. But, in the battle of wits, temper tantrums have no place”. Forget not that the Judges too are a stressed out lot. They have a million things to worry over and they too have serious family issues to tide over and keep them aside to perform their roles.

It does not make sense to sit and physchoanlayse as to who was to blame between the Bar and Bench. Justice H.R. Khanna put it well, “There is a close kinship between the members of the Bar and those on the Bench. Their role is complementary yet vital for ensuring the rule of law and proper dispensation of justice.” As to who went too far, or who owed who an apology, and if it was genuine, would be posers in futility.

“The Supreme Court in the most powerful institution in the world”, gasped Justice Antonin Scalia. Jerome Frank, in his famous book ‘Courts On Trial’ said, “I have little patience with or respect for the view that it is dangerous to tell the public about unpalatable truths about the judiciary….. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable short-comings of man-made institutions. The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how the system now functions.” Upon reading this, Justice V.R. Krishna Iyer said Amen in these words, “Personally speaking, I stand solidly for a judiciary which is a democratic instrumentality, not an occult class of divinity”.

The Judges are human. They play God, no doubt, when they decide the fate of litigants. But surely that ought not to go to head as if an “occult class of divinity”. Equally, the Bar has to be disciplined, while not subservient. We have had far too many instances of members of the Bar taking law into their hands, and literally browbeating judiciary, necessitating calls for High Courts to take over the disciplining of the Bar, to itself, from Bar Council jurisdiction.

Surely, the constitutional Courts, as an institution, have a higher responsibility, for as Justice Felix Frankfurter puts it, in eloquent prose, “Judges as persons, or Courts, as institutions, are entitled to no greater immunity from criticism than other persons or institution. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There has sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by vigorous stream of criticism with candour however blunt”. Time for India to have a Judicial Accountability Commission?

Justice V.R. Krishna Iyer shall have the last word though. “A powerful Performance Commission to investigate into the delinquencies of judges is absolutely essential if egregious judicial blunders are to be minimised. Rules of good conduct voluntarily created do exist. But they carry neither sanction nor penalty and are often violated though yet rarely”. And that is the saving grace.

(Narasimhan Vijayaraghavan- Author is practising advocate in the Madras High Court)

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