The Jammu and Kashmir High Court has observed that access to justice is the very foundation of any legal system. The legal fraternity plays the role of a very vital instrument in the aforesaid process of access to justice to the people at large. When the very instrument abstains from the Court proceedings, then it is the common people and the litigants who suffer.
The Division Bench of Chief Justice Ali Mohammad Magrey and Justice M. A. Chowdhary disposed of a Suo Moto Public Interest Litigation (PIL) registered on the report of the Registrar General about the impact of continuous strike on the Court functioning.
During the proceedings of this matter, not only the noticees/ Advocates but all the members of the Bar felt and expressed disappointment over the developments/ incidents that took place during their protests against the decision of the Government of J&K, in connection with shifting of service matters to the CAT and registration work from civil Courts to Revenue Courts .
The Court said that in the justice delivery system, there are three stakeholders – (i) Judiciary; (ii) Bar; and (iii) the Government. “What Government should do is that it should provide sufficient infrastructure facilities, establish more number of courts and create more posts of judges. What judiciary should do is to prioritise and dispose of cases as early as possible. What lawyers should do is that they should come to the court fully prepared and avoid asking for long adjournments so that length of the trial period can be reduced. “
Hence,the Bench held that it is the collective responsibility of all the three stakeholders to ensure quick disposal of cases. It is high time that all the three come together to address the issue of speedy disposal and reduction in pendency.
The Court had to take into account the time spent and the benefits forgone by the parties to the litigation which is much more than the cost paid to the lawyers and Court fees.
The Court held that it is need to adopt three pronged strategy to reduce the high level of litigation: (i) Avoid litigation; (ii) Adopt alternate dispute resolution mechanism; and (iii) Adjudicate quickly. Avoiding litigation is in the hands of litigants.
It is also possible to avoid litigation if each and everyone of the Advocates advise the clients to avoid litigation, if possible. If the High Court create a scenario in which litigation should be treated as a last resort, then surely the level of litigation will come down considerably in our country. In the event of a situation in which the client is not able to avoid the litigation, the Court should encourage settling the disputes through alternate dispute resolution mechanisms. The alternative dispute resolution mechanisms are not only quicker in disposing of the disputes but also bring down the pendency in the courts as well as the cost of litigation.
“We should, as a deliberate policy, encourage alternate dispute mechanisms. In this regard, the role of Advocates and the role of Judiciary is very important. It is the Advocates and Counsels who are the first point of contact in the process of litigation. If the Bar and its members advise the clients to opt for alternative dispute resolution mechanisms, then surely, in the days to come, this will become popular. It is the Judiciary which is the ultimate authority in encouraging as well as promoting alternative dispute resolution mechanisms by recognising its role in resolving the disputes as well as giving finality to the settlement of awards passed by the alternative dispute resolution mechanism. This not only will help the litigants, but also the whole system will stand to gain as the pendency in the courts will come down considerably. Hence, the Bar as well as the Judiciary should promote this mechanism. In the event of not being able to avoid litigation and, if it is not possible to adopt alternative dispute resolution mechanism, the only other way to reduce the pendency is to adjudicate quickly. This, in our opinion, is only in the hands of the Advocates and the Judiciary. As far as the role of Advocates in disposing of the cases quickly is concerned, it is by avoiding adjournments and filing the statements and evidence as soon as possible”, the Bench further observed.
The statement, “A Lawyer is and must ever be the high priest at the shrine of justice”, a religious metaphor, reflects the view of the Lawyer’s special role on the administration of justice as contemplated by the American Bar Association in the first national code of legal ethics in the USA. The religious metaphor was developed in the context of viewing Courts as the ‘shrines of justice’, and Lawyers as the ministers of the “Courts of justice robed in the priestly garments of truth, honor and integrity”. Even in a secular context, the statement still captures the essence of the role of an Advocate in the mechanism of administration of justice in the society.
The Court also also appreciatde the role an Advocate plays in the society. The development of Lawyers as a class of professionals can be attributed to the need for trained persons who can form the competent interface to facilitate the interaction between the lay persons and the judiciary. This involves providing legal advice in matters of rights, liberties or property of the client within the framework of legislative and legal rights, and representing the client in the event of a dispute before an adjudicatory body. In fact, if law is viewed as a ‘public good’ which is frequently technical and not self-executing, meaningful access to law requires the assistance of a Lawyer.
Particularly, in most jurisdictions, the members of the legal profession are conferred the status of privileged members of the community, and occupies an exclusive domain with the privilege of pleading and acting on behalf of suitors being restricted only to enrolled advocates and attorneys. This monopolistic character of the legal profession entails certain high traditions which its members are expected to upkeep and uphold. Therefore, the Lawyer plays an indispensible role in the mechanism of administration of justice.
However, the Lawyer has a particularly onerous and multi-dimensional role to fulfill. The role of the Advocate requires a closer scrutiny. The Lawyer, as a professional, to some extent, acts on behalf of the client, and representing the client. This is particularly relevant in an adversarial system of adjudication followed by common law countries which is characterized by a neutral adjudicating authority, which, on the basis of the arguments and evidence placed before it, arrives at a conclusion. The role of an Advocate in an adversarial system, therefore, is to represent the case of the client before the adjudicating authority. As a professional, the functional role of an Advocate, in essence, is comparable to that of a legal technician. An Advocate is specially trained in the technical profession of ‘law’, and with his grasp over the subject matter; professional function consists largely of providing counsel for clients about how to escape or mitigate the incidence of the law’s obligations, availing of the loopholes and the ambiguities of law. An Advocate is essentially an adviser to his client.
The contractual arrangement creates an obligation on the part of the Advocate to offer sound legal service, and place before the Court all that can fairly and reasonably be submitted on behalf of his client. As has been frequently emphasized, an Advocate also acts in the capacity of an officer of the Court. The role of Advocates as officers of the Court is to assist the Court in the administration of justice. Lawyers collect materials relating to a case and thereby assist the Court in arriving at a correct judgment. Furthermore, being a responsible officer of the Court and an important adjunct of the administration of justice, the Lawyer also owes a duty to the court as well as the opposite side. The Bar and the Bench constitutes the two wheels of the carriage of justice. The success of the judicial process often depends on the services of the legal profession.
The function of both the Bar and the Bench in an adversarial system of dispute resolution are clearly made out, and the need for a dynamic relationship of co-operation between the two is acute. Advocates, as members of the Bar and officers of the Court, have the responsibility of ‘keeping the stream of justice pure and unsullied’ so also to enable it to administer justice fairly and to the satisfaction of all concerned. This involves two aspects – firstly, to uphold the dignity of the judicial office and maintain a respectful attitude towards the Court, and secondly, to ensure that under no circumstance, any illegal or improper means is used to mislead the Court.
The primary duty of the Lawyer is to inform the Court as to the law and facts of the case and to aid the Court to do justice by arriving at correct conclusion. Since, the Court act on the basis of what is presented by the Advocates, the Advocates are under the obligation to be absolutely fair to the Court. All statements should be accurate, and the Advocate is under a sacrosanct obligation to ensure that he does not, through any act or omission lead to the possibility of misrepresentation, or mislead the Court or obfuscate the case in any manner. Good and strong advocacy by the Counsel is thus necessary for the good administration of justice.
“What is imperative to be borne in mind is that the legal profession cannot be considered like any other profession, or trade or business. It is a noble profession, which is intended to serve the cause of ‘justice’. The difference between the legal profession and other professions lies in the fact that what lawyers do affects not only an individual but the administration of justice which is the foundation of the civilized society.”
As observed by the High Court , the Advocate owes a duty to his client in the capacity of a professional, and towards the Court in the capacity of an officer and the friend of the Court. However, this may and often does lead to a conflict. In cases of conflict, as far as possible, the Advocate tries to balance his competing obligations. However, where the conflict is irreconcilable, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public. The role of Advocates in the administration of justice, and the tension between the role of the Advocate as a professional vis-à-vis as an officer of the Court can be understood best in light of the role of an advocate in the society.
‘Justice’ is the cornerstone in a democratic society characterized by the rule of law. In an adversarial system, the advocate could be described, to some extent, as a minister of justice. The public impact of the legal profession can be gauged by the observation by the Supreme Court in ‘All India Judges Association v. Union of India’, wherein it was expressed that the administration of justice and the part to be played by the Advocates in the system must be looked into from the point of view of litigant public and the right to life and liberty guaranteed under Article 21 and right to grant legal aid as contemplated under Article 39A of the Constitution. The aspect of the Advocate as a public servant is closely tied to the fact key role he plays in the developmental and dispute-processing activities and, above all, in the building up of a just society and constitutional order. Being the custodian of the monopolistic power statutorily granted by the nation, the Lawyer is obligated to rise to the expectations of him in being a member of the society worthy of confidence of the community in him as a vehicle of social justice. Viewed in this context, the Court said that the Lawyer is indeed the channel through which the general public can access the law, and avail of the protection of the law, in the shrine of justice.
In the light of the above detailed analysis and discussion made hereinabove, the Court summarise its directions as under:-
(a) The Advocates against whom the contempt proceedings are initiated shall ensure adherence to their unique role in administration of justice as detailed out in several judicial pronouncement, taken note of in this order.
(b) The undertakings with reference to maintaining dignity, honour and respect of the Court at all times and not causing any obstruction shall also form the basis for discharging of the rule.
(c) Additionally, the basis for dropping the proceedings has reference to submissions made by the senior Bar members and President of the Bar Association and learned Advocate General.
(d) The High Court think it necessary to pursue this matter any further. The Court accept the oral and written undertakings of the Respondents, i.e., Advocates and discharge the notices of contempt issued against them.