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Independence of the Bar & Judicial Independence

Independence of the Bar & Judicial Independence
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A press release by the chairperson of the Bar Council of India while raising valid points also questions Justices who have taken an oath to uphold the Constitution

Independence of the Bar & Judicial Independence


~By Upendra Baxi


Two extraordinary events occurred recently. On September 30, lawyers of Cuttack, including those of Orissa High Court, intensified their month-long strike (despite an order of the Supreme Court) and burnt effigies of then Chief Justice of India Dipak Misra and Chief Justice of Orissa High Court KS Jhaveri during a rally. Media reports said that derogatory slogans were shouted and that at least six judges were seen walking to the Court escorted by security guards due to a blockade of their cars.

This is a matter of great concern: symbolic action of this nature has never occurred in the 70 years of India’s constitutional history, no matter what discontent there was in the Bar or what provocation was actually offered by Justices at work. There are other equally effective ways of expressing protest and if need be can be innovated. The local Bar was, of course, reacting to remarks by the CJI on the lawyers’ cease-work in a matter in which they were not a party. But surely, as a learned profession, they could have responded in other dignified and effective ways.

The second event was a press release on September 29 signed by Manan Mishra, chairperson of the Bar Council of India, where he rightly states that the independence of the judiciary is vital to “a healthy and vibrant democracy” and such effigy-burning is “a matter of serious concern”. However, Mishra issues an ominous warning—it has certain pedagogic lessons for Justices to introspect because what has been done by the Odisha Bar Association may be repeated “by lawyers of the entire country” and the day is “not far when the general public will toe the line”.

Such dire prognostications are unwelcome. What the country needs is renewal of faith in constitutional and democratic processes and the Bar’s role in decelerating the undemocratic temper is inestimable. The Bar Council and leaders of the Bar played a democracy-reinforcing role when four seniormost justices in an unprecedented act addressed a press conference on January 12, 2018, against the functioning of their own institution, ie, the Supreme Court.

It is most welcome that the Bar Council of India has “always tried to maintain the decorum of the Institution and tried to protect it” and is “never in favour of strikes, boycotts, abstentions, etc.”, and has taken, where necessary, action against errant members pursing unjustified strikes or strike-like recourses.  But the press statement also says that the Bar fails to appreciate the “hostile attitude of some of the Judges of the country towards the Bar and their Institution”. In principle, all “anti-Bar” approaches are to be deprecated and courts are well-aware of the Bar’s central importance in administrative action. But is the reminder that the Bar is a learned profession and advocates the officers of the Court (bound also by ethics as the Advocates Act, 1961 recognises) necessarily anti-Bar? Ought one to further aggravate the already asymmetrical relations of power between the Bar and the Bench?

It is true (as Manan Mishra says) that the “Bar and the Bench are two wheels of the chariot… of the Rule of Law”, and judicial independence also entails the autonomy of the legal profession. Certainly, dialogical ways should be further found to avoid any infliction of “humiliation” on lawyers and the Bar should be able to raise the matter non-judicially before the chief justices and finally before the CJI or seniormost justices of the Supreme Court who constitute the collegium. But to generalise specific instances of “some of the judges” taking “pleasure in humiliating lawyers” even by way of remote implication as is the current fad is unworthy.

While the Council and the Bar may express opinions on how the judiciary may proceed, the distinction between judicial function and public criticism must never be overlooked. The press note seems to be in a danger of doing just that. For example, it speaks about the “reckless manner, in which our apex court has been dealing with some sensational issues and PILs” making all of us a “laughing stock. This is another delicate issue over which our higher judiciary will have to sit with the Bar and think seriously”.

But hermeneutic adjudicatory leadership belongs solely to the judicial function, though lawyers may influence this by argumentation. The Bar, as such, cannot have a direct role in shaping this policy: the task must be seriously and strictly left alone to Justices who have taken an oath to decide without fear and favour and to uphold the Constitution of India.

The press note also reflects, and reinforces the public perception that “traditional litigation” is unjustly ignored. It says: “Major time of  courts are (sic) wasted on media-popular matters with which 99% of citizen (sic) have no concern at all.” Until further empirical evidence is produced, one must regard such observations as mere expression of opinion from even one so highly placed as Mishra. A similar ipse dixit is that “most of our judges are far, far away from ground realties and public opinion over social issues”. Surely, if such is the situation (which it is not), the Bar which argues for and against a position, often for high fees, should also be held equally responsible!

The press release is entirely correct in reiterating that the “Indian Bar has requested the High Courts and the Supreme Court Justices not to accept any assignment after their retirement at least for two years”. Examples of lucrative post-retirement government assignments are on the increase and these certainly bode ill for judicial independence. The chairperson (Manan Mishra) is certainly right in recalling that Justice Jasti Chelameswar announced that he will not take up such an offer on retirement and Justice Kurian Joseph has now followed suit. In expressing the hope that the retired 45th CJI will follow the same course, the chairperson has served well the eminent cause of judicial independence.

                                                                   —The author is an international law scholar, an acclaimed teacher and a well-known writer

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