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PART A – ADVOCACY
Legal Profession in India
The history of the legal profession in India can be traced back to the establishment of the First British Court in Bombay in 1672 by Governor Aungier. The admission of attorneys was placed in the hands of the Governor-in-Council and not with the Court. Prior to the establishment of the Mayor‘s Courts in 1726 in Madras and Calcutta, there were no legal practitioners.
The Mayor‘s Courts, established in the three presidency towns, were Crown Courts with right of appeal first to the Governor-in-Council and a right of second appeal to the Privy Council. In 1791, Judges felt the need of experience, and thus the role of an attorney to protect the rights of his client was upheld in each of the Mayor‘s Courts. This was done in spite of opposition from Council members or the Governor. A second principle was also established during the period of the Mayor‘s Courts. This was the right to dismiss an attorney guilty of misconduct. The first example of dismissal was recorded by the Mayor‘s Court at Madras which dismissed attorney Jones.
The Supreme Court of Judicature was established by a Royal Charter in 1774. The Supreme Court was established as there was dissatisfaction with the weaknesses of the Court of the Mayor. Similar Supreme Courts were established in Madras in 1801 and Bombay in 1823. The first barristers appeared in India after the opening of the Supreme Court in Calcutta in 1774. As barristers began to come into the Courts on work as advocates, the attorneys gave up pleading and worked as solicitors. The two grades of legal practice gradually became distinct and separate as they were in England. Madras gained its first barrister in 1778 with Mr. Benjamin Sullivan.
Thus, the establishment of the Supreme Court brought recognition, wealth and prestige to the legal profession. The charters of the Court stipulated that the Chief Justice and three puisne Judges be English barristers of at least 5 years standing.
The charters empowered the Court to approve, admit and enrol advocates and attorneys to plead and act on behalf of suitors. They also gave the Court the authority to remove lawyers from the roll of the Court on reasonable cause and to prohibit practitioners not properly admitted and enrolled from practising in the Court. The Court maintained the right to admit, discipline and dismiss attorneys and barristers. Attorneys were not admitted without recommendation from a high official in England or a Judge in India. Permission to practice in Court could be refused even to a barrister.
In contrast to the Courts in the presidency towns, the legal profession in the mofussil towns was established, guided and controlled by legislation. In the Diwani Courts, legal practice was neither recognized nor controlled, and practice was carried on by vakils and agents. Vakils had even been appearing in the Courts of the Nawabs and there were no laws concerning their qualification, relationship to the Court, mode of procedure of ethics or practice. There were two kinds of agents – a. untrained relatives or servants of the parties in Court and b. professional pleaders who had training in either Hindu or Muslim law. Bengal Regulation VII of 1793 was enacted as it was felt that in order to administer justice, Courts, must have pleading of causes administered by a distinct profession Only men of character and education, well versed in the Mohamedan or Hindu law and in the Regulations passed by the British Government, would be admitted to plead in the Courts. They should be subjected to rules and restrictions in order to discharge their work diligently and faithfully by upholding the client‘s trust. Establishment of the High Courts
In 1862, the High Courts started by the Crown were established at Calcutta, Bombay and Madras. The High Court Bench was designed to combine Supreme Court and Sudder Court traditions. This was done to unite the legal learning and judicial experience of the English barristers with the intimate experience of civil servants in matters of Indian customs, usages and laws possessed by the civil servants. Each of the High Courts was given the power to make rules for the qualifications of proper persons, advocates, vakils and attorneys at Bar. The admission of vakils to practice before the High Courts ended the monopoly that the barristers had enjoyed in the Supreme Courts. It greatly extended the practice and prestige of the Indian laws by giving them opportunities and privileges equal to those enjoyed for many years by the English lawyers. The learning of the best British traditions of Indian vakils began in a guru-shishya tradition: ―Men like Sir V. Bashyam Ayyangar, Sir T. Muthuswamy Ayyar and Sir S. Subramania Ayyar were quick to learn and absorb the traditions of the English Bar from their English friends and colleagues in the Madras Bar and they in turn as the originators of a long line of disciples in the Bar passed on those traditions to the disciples who continued to do the good work.‖ Additional High Courts were established in Allahabad (1886), Patna (1916), and Lahore (1919).
There were six grades of legal practice in India after the founding of the High Courts – a) Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e) Mukhtars, f) Revenue Agents. The Legal Practitioners Act of 1879 in fact brought all the six grades of the profession into one system under the jurisdiction of the High Courts. The Legal Practitioners Act and the Letters Patent of the High Courts formed the chief legislative governance of legal practitioners in the subordinate Courts in the country until the Advocates Act, 1961 was enacted. In order to be a vakil, the candidate had to study at a college or university, master the use of English and pass a vakil‘s examination. By 1940, a vakil was required to be a graduate with an LL.B. from a university in India in addition to three other certified requirements. The certificate should be proof that a. he had passed in the examination b. read in the chamber of a qualified
The great advocate is like the great actor : he fills the stage for his span of life, succeeds, gains our applause, makes his last bow, and the curtain falls. Nothing is so elusive as the art of acting, unless indeed it be the sister art of advocacy.
The young student of acting or advocacy is eager to believe that there are no methods and no technique to learn, and no school in which to graduate. Youth is at all times prone to act on the principle that there are no principles, that there is no one from whom it can learn, and nothing to teach. Any one, it seems, can don a wig and gown, and thereby become an advocate. Yet there are principles of advocacy ; and if a few generations were to forget to practise these, it would indeed be a lost art. The student of advocacy can draw inspiration and hope from the stored-up experience of his elders. He can trace in the plans and life-charts of the ancients the paths along which they strode, journeyed. They can be seen pacing the ancient halls with their clients, proud of the traditions of their great profession — advocates — advocates all.
Without a free and honourable race of advocates the world will hear little of the message of justice. Advocacy is the outward and visible appeal for the spiritual gift of justice. The advocate is the priest in the temple of justice, trained in the mysteries of the creed, active in its exercises. Advocacy connotes justice. Upon the altars of justice the advocate must keep his seven lamps clean and burning rightly. In the centre of these must ever be the lamp of honesty.
The order of advocates is, in D'Aguesseau's famous phrase, " as noble as virtue." Far back in the Capitularies of Charlemagne it was ordained of the profession of advocates " that nobody should be admitted therein but men mild, pacific, fearing God, and loving justice, upon pain of elimination." So may it continue, world without end.
From the earliest, Englishmen have understood that advocacy is necessary to justice, and honesty is essential to advocacy. Every pleader who acts in the business of another should have regard to four things : — First, that he be a person receivable in court, that he be no heretic, nor excommunicate, nor criminal, nor man of religion, nor woman, nor ordained clerk above the order of sub- deacon, nor beneficed clerk with the cure of souls, nor infant under twenty-one years of age, nor judge in the same cause, nor open leper, nor man attainted of falsification against the law of his office.
Secondly, that every pleader is bound by oath that he will not knowingly maintain or defend wrong or falsehood, but will abandon his client immediately that he perceives his wrong-doing. Thirdly, that he will never have recourse to false delays or false witnesses, and never allege, proffer, or consent to any corruption, deceit, lie, or falsified law, but loyally will maintain the right of his client, so that he may not fail through his folly or negligence, nor by default of him, nor by default of any argument that he could urge ; and that he will not by blow, contumely, brawl, threat, noise, or villain conduct disturb any judge, party, serjeant, or other in court, nor impede the hearing or the course of justice. Fourthly, there is the salary, concerning which four
points must be regarded — the amount of the matter in dispute, the labour of the serjeant, his value as a pleader in respect of his (learning), eloquence, and repute, and lastly the usage of the court."
Nevertheless, although an advocate is bound by obligations of honour and probity not to overstate the truth of his client's case, and is forbidden to have recourse to any artifice or subterfuge which may beguile the judge, he is not the judge of the case, and within these limits must use all the knowledge and gifts he possesses to advance his client's claims to justice. Boswell asked Doctor Johnson whether he did not think " that the practice of the law in some degree hurt the nice feeling of honesty? " To whom the doctor replied : " Why no, Sir, if you act properly. You are not to deceive your clients with false representations of your opinion : you are not to tell lies to a judge." Boswell : " But what do you think of supporting a cause which you know to be bad? " Johnson : " Sir, you do not know it to be good or bad till the judge determines it. I have said that you are to state facts fairly ; so that your thinking, or what you call knowing, a cause to be bad must be from reasoning, must be from your supposing your arguments to be weak and inconclusive. Lord Chief Justice Cockburn, set forth his views of an advocate's duty, concluding with these memorable words : " The arms which an advocate wields he ought to use as a warrior, not as an assassin. He ought to uphold the interests of his client per fas, and not per nefas. He ought to know how to reconcile the interests of his clients with the eternal interests of truth and justice." If an advocate knows the law to be x, it is not honest to lead the court to believe that it is y. Whether the advocate does this by directly mis-stating the law, or by deliberately omitting to state it fully within the means of his knowledge, it is equally without excuse, and dims the lamp of honesty.
For the advocate must remember that he is not only the servant of the client, but the friend of the court, and honesty is as essential to true friendship as it is to sound advocacy.
II. THE LAMP OF COURAGE
Advocacy needs the " king-becoming graces : devotion, patience, courage, for- titude." Advocacy is a form of combat where courage in danger is half the battle. Courage is as good a weapon in the forum as in the camp. The advocate, like Csesar, must stand upon his mound facing the enemy, worthy to be feared, and fearing no man. Unless a man has the spirit to encounter difficulties with firmness and pluck, he had best leave advocacy alone.
A modern advocate kindly reproving a junior for his timidity of manner wisely said : " Remember it is better to be strong and wrong than weak and right." The belief that success in advocacy can be attained by influence, apart from personal qualifications, is ill-founded.
It is very true that learning begets courage, and wise self-confidence can only be founded on knowledge. The long years of apprenticeship, the studious attention to "preperatives," are, to the
The whole speech is worthy of study, as it contains a glowing and reasoned appeal for the right of the most degraded human being in a civilised state to a real hearing of his case in a judicial court, which can only be obtained through honest and competent advocacy.
" In due time, gentlemen of the jury, when I shall have paid the debt of nature, my remains will rest here in your midst with those of my kindred and neighbours.
It is very possible they may be unhonoured, neglected, spurned! But perhaps years hence, when the passion and excitement which now agitate this community shall have passed away, some wandering stranger, some lone exile, some Indian, some negro, may erect over them an humble stone, and thereon this epitaph : ‗He was faithful.' " These words, as he desired, are engraved on the marble over him, and he is remembered at the American Bar as an advocate who upheld its best traditions, and feared not to hold aloft the Lamp of Courage.
III. THE LAMP OF INDUSTRY
The first task of the advocate is to learn to labour and to wait. There never was a successful advocate who did not owe some of his prowess to industry. From the biographies of our ancestors we may learn that the eminent successful ones of each generation practised at least enough industry in their day to preach its virtues to aspiring juniors. Work soon becomes a habit. It may not be altogether a good habit, but it is better to wear out than to rust out. Nothing, we are told, is impossible to industry. Certainly without industry the armoury of the advocate will lack weapons on the day of battle.
There must be years of what Charles Lamb described with graceful alliteration as " the dry drudgery of the desk's dead wood " before the young advocate can hope to dazzle juries with eloquent perorations, confound dishonest witnesses by skilful cross-examination, and lead the steps of erring judges into the paths of precedent.
All great advocates tell us that they have had either steady habits of industry or grand outbursts of work. Charles Russell had a continuous spate of energy." Do something! "
Abraham Lincoln owed his sound knowledge of law to grim, zealous industry. In after-life to every student who came near him his advice was, " Work! work !work! "
Advocacy is indeed a life of industry. Each new success brings greater toil. Campbell, writing home from the Oxford Circuit, describes the weary round of his daily task. Some advocates suffer thus every day the court sits, whilst others sit round and suffer envy. " I ought to have got so far to-night on my way to Hereford, but we have a long day's work before us, and I shall be obliged to travel all to-morrow night. You can hardly form a notion of the life of labour, anxiety, and privation which I lead upon the circuit. I am up every morning by six. I never get out of court till
seven, eight, or nine in the evening, and, having swallowed any indifferent fare that my clerk provides for me at my lodgings, I have consultations and read briefs till I fall asleep. This arises very much from the incompetence of the judge. It is from the incompetency of judges that the chief annoyances I have in life arise. I could myself have disposed of the causes here in half the time the judge employed. He has tried two causes in four days. Poor fellow, he is completely knocked up." An advocate must study his brief in the same way that an actor studies his part. Success in advocacy is not arrived at by intuition.
You have to work hard and to think hard. I get some good help, as I tell you. My mode of work is this : One of these young men reads the brief and makes a note — a full one. I go through the note with him ' (smiling), ' cross-examining him, if you like. Sometimes, I admit, it may not be necessary for me to read the brief; the note may be so complete, and the man's knowledge of the case so exact, that I get everything from him. But it often is — in fact, generally is — necessary to go to the brief. You have seen me reading briefs here. I admit that I am quick in getting at the kernel of a case, and that saves me some trouble ; but I must read the brief with my own eyes, or somebody else's.' " I said, ' Sir John Karslake went blind because he could only read his brief with his own eyes. It is a great point to be able to read your brief with somebody else's eyes !' " Russell— Well, well, well, that's so! but it is not intuition.' " I said, ' It has been said that O'Connell never read his brief when he appeared for the defendant. He made his case out of the plaintiff's case.' " Russell — ‗I don't think that is likely ; I think O'Connell knew his case — the vital points in his case — before he went into court. There is often a great deal in a brief which is not vital, which is not even pertinent. I can read a brief quickly ; I can take in a page at a glance, if you like ; I can throw the rubbish over easily, and come right on the marrow of the case. But I can only do that by reading the brief, or by the help of my friends. I learn a great deal at consultations ; I am not above taking hints from everybody, and I think carefully over everything that is said to me ' (holding his hand up with open palm) ; ' I shut out no view. If I have a good point, it is that I can see quickly the hinge on which the whole case turns, and I never lose sight of it. But that is not intuition, my friend ; it is work.' " Industry in reading and book-learning may make a man a good jurist, but the advocate must exercise his industry in the double art of speaking and arranging his thoughts in ordered speech. He must be ready to leave his books awhile and practise the athletics of eloquence with equal industry. The silver-tongued Heneage Finch advises students " to study all the morning and talk all the afternoon."
For " bare reading without practice makes a student, but never makes him a clever lawyer." Our fathers understood this better perhaps than we do, and made provision of halls and cloisters and gardens, where students could take exercise and discuss the mysteries of their profession when the hours of reading were over.
The days of wandering in cloisters and gardens, putting cases to one's fellow- students, and listening to the wisdom of elders by the margin of the fountain are, alas !not for us. But even to- day a wise youngster should recognise that sitting in court to listen to the conduct of cases,
Wit may fairly be used to strip the cloak of pretension from the shoulders of impudence. Holker was cross-examining a big vulgar Jew jeweller in a money- lending case and began by looking him up and down in a sleepy dismal way and drawled out : " Well, Mr. Moselwein, and what are you? "
" Agenschelman," replied the jeweller with emphasis. " Just so, just so," ejaculated Holker with a dreary yawn, " but what were you before you were a gentleman? " Wit, skilfully used, is the kindliest and most effective method of exhibiting the futility of judicial interruptions. " Where do you draw the line, Mr. Bramwell? " asked a learned judge in the Court of Common Pleas. " I don't know, and I don't care, my lord. It is enough for me that my client is on the right side of it."
Wit and courtesy need never be divorced. They are, indeed, complementary. Wit, deftly used, refreshes the spirit of the weary judge. Lord Chief Justice Coleridge, writing from the Northern Circuit, says : " Gully was excellent. His phrase, when he asked for a stay of execution ' in order to con- sider more at leisure some of your lordship's observations,' tickled my fancy very much. Misdirection was never more courteously described."
Satire or irony is often in danger of being misunderstood by the simple- minded jury. Ridicule, to be effective, must be pointed, even extravagant. In combating the defence of Act of God set up by an American advocate defending a client on the charge of arson, Governor Wisher, for the prosecution, disposed of the theory of spontaneous combustion, and succeeded in satisfying the jury of its absurdity : " It is said, gentlemen, that this was Act cf God. It may be, gentlemen. I believe in the Almighty's power to do it, but I never knew of His walking twice round a straw stack to find a dry place to fire it, with double-nailed boots on so exactly fitting the ones worn by the defendant."
Bowen, on the Western Circuit, was less fortunate. Prosecuting a burglar caught red-handed on the roof of a house, he left the case to the jury in the following terms : " If you consider, gentlemen, that the accused was on the roof of the house for the purpose of enjoying the midnight breeze, and, by pure accident, happened to have about him the necessary tools of a housebreaker, with no dishonest intention of employing them, you will, of course, acquit him." The simple sons of Wessex nodded complacently at counsel, and, accepting his invitation, acquitted the prisoner.
" brevity is the soul of wit."
Good advocacy displays the highest form of wit in an instinct for brevity. The healthy appetite of judge and advocate alike is shown in a keenness to " get through the rind of the orange and reach the pulp as soon as possible."
V. THE LAMP OF ELOQUENCE
The eloquence of advocates of the past must largely be taken on trust. There is no evidence of it that is not hearsay. For, though we have the accounts of earwitnesses of the eloquence of Erskine, Scarlett, Choate, or Lincoln, and can ourselves read their speeches, the effect of their eloquence does not remain. We are told about it by those who experienced it, and can believe or not as we choose. It is the same with actors. It requires genius to describe acting, so that the reader captures some of the experience of the witness. The most eloquent advocacy that is reported in print is to be found not in law reports, but in fiction — in the speeches of Portia and SerjeantBuzfuz, for instance, where for all time the world continues hanging on the lips of the advocate in excited sympathy with the client. There are some who think that rhetoric at the Bar has fallen in esteem. The modern world has certainly lost its taste for sweet and honeyed sentences, and sets a truer value on fine phrases and the fopperies of the tongue ; but there will always be a high place in the profession for the man who speaks good English with smooth elocution, and whose speeches fall within Pope's description : Fit words attended on his weighty sense, And mild persuasion flow'd in eloquence. The test of eloquence in advocacy is necessarily its effect upon those to whom it is addressed. The aim of eloquence is persuasion. The one absolute essential is sincerity, or, perhaps one should say, the appearance of sincerity.
It would appear from the history of advocacy that the flame of the lamp of eloquence may vary from time to time in heat and colour. One cannot say that the style of one advocate is correct and another incorrect, since the style is the attribute of the man and the generation he is trying to persuade. Yet, however different the style may be, the essential power of persuasion must be present. He must, as Hamlet says, be able to play upon his jury, knowing the stops, and sounding them from the lowest note to the top of the compass. Brougham's tribute to Erskine's eloquence is perhaps the best pen-picture of an English advocate we possess, and it is noticeable how he emphasises this power of persuasion and endeavours to solve the psychology of it. He places in the foreground the physical appearance of the man, a great factor in each style of advocacy.
" Nor let it be deemed trivial," he says, " or beneath the historian's province, to mark that noble figure, every look of whose countenance is expressive, every motion of whose form graceful, an eye that sparkles and pierces, and almost assures victory, while it 6 speaks audience ere the tongue.' Juries have declared that they felt it impossible to remove their looks from him when he had riveted and, as it were, fascinated them by his first glance; and it used to be a common remark among men who observed his motions that they resembled those of a blood-horse, as light, as limber, as much betokening strength and speed, as free from all gross superfluity or encumbrance. Then hear his voice of surpassing sweetness, clear, flexible, strong, exquisitely fitted to strains of serious earnestness, deficient in compass indeed, and much less fitted to express indignation, or even scorn, than pathos, but wholly free from harshness or monotony. All these, however, and even his chaste, dignified, and appropriate action, were very small parts of this wonderful advocate's excellence. He had a thorough knowledge of men, of their passions, and
that judges without informing himself to the utmost that he is capable cannot acquit himself of judging amiss."
A client is entitled to the independent judgment of the advocate. Whether his judgment is right or wrong, it is the duty of the advocate to place it at the disposal of his client. In the business of advocacy judgment is the goods that the advocate is bound to deliver. Yet he is under constant temptation to please his client by giving him an inferior article. The duty of the advocate to give only his best.
The above question frequently arises, and some counsel have considered themselves bound to obey the wishes of the solicitor. There is no doubt that this is the safest course for the advocate, for, if he does otherwise and the result is adverse, he is likely to be much blamed, and the solicitor also is exposed to disagreeable comments ; but I hold, and have always acted upon the opinion, that the client retains counsel's judgment, which he has no right to yield to the wishes or opinions of any one else. He is bound, if required, to return his brief, but if he acts against his own convictions he sacrifices, I think, his duty as an advocate."
An advocate of judgment has the power of gathering up the scattered threads of facts and weaving them into a pattern surrounding and emphasising the central point of the case. In every case there is one commanding theory, to the proof of which all the facts must be skilfully marshalled. An advocate with one point has infinitely greater chances than an advocate with twenty points. Rufus Choate was an advocate of great judgment, and not only was he enthusiastic and diligent in searching for the central theory, or 44 hub of his case, as he called it, but having made up his mind what it was, he rightly put it forward without delay, believing that it was the "first strike" that conquered the jury. Parker, his biographer, tells us that 44 he often said to me that the first moments were the great moments for the advocate. Then, said he, the attention is all on the alert, the ears are quicker, the mind receptive. People think they ought to go on gently, till, somewhere about the middle of their talk, they will put forth all their power. But this is a sad mistake. At the beginning the jury are all eager to know what you are going to say, what the strength of your case is. They don't go into details and follow you critically all along : they try to get hold of your leading notion, and lump it all up. At the outset, then, you want to strike into their minds what they want — a good, solid, general view of your case ; and let them think over that for a good while. 4 If,' said he emphatically, 4 you haven't got hold of them, got their convictions at least open, in your first half-hour or hour, you will never get at them at all.' "
Abraham Lincoln had a genius for seeing the real point of his case and putting it straight to the Court. A contemporary who was asked in later life what was Lincoln's trick with the jury replied, " He saw the kernel of every case at the outset, never lost sight of it, and never let it escape the jury. That was the only trick I ever saw him play.‖
In nothing does the advocate more openly exhibit want of judgment than in prolixity. Modern courts of justice are blamed by the public, not wholly without cause, for the length and consequent expense of trials. To poor people this may mean a denial of justice. No one desires that the judge should constantly interfere with counsel in the discharge of their duties, but it seems to be his duty on occasion to blow his whistle and point out to the combatants that they are offside.
If every one connected with the trial of an action were to train and use his judgment and co- operate with the judgments of his fellow-workers in a policy of anti-waste, a great reproach would be lifted from our courts of justice. Prolixity is no new disease.
" In his lordship's conduct of trials he was very careful of three matters : 1. To adjust what was properly the question, and to hold the counsel to that ; for he that has the worst end of the staff, is very apt to fling off from the point and go out of the right way of the cause. 2. To keep the counsel in order ; for in trials they have their parts and their times. His lordship used frequently to inculcate to counsel the decorum of evidencing practice. 3. To keep down repetition, to which the counsel, one after another, are very propense;
The judgment of an advocate may be called upon at any moment for a sudden decision that may mean the victory or defeat of his client. For this reason it is necessary that he should be always alert. The contents of his brief must be already in his mind, and his attention must be fixed on what is happening in court, which has rarely been foreseen in the best-prepared brief ever delivered to counsel. "Watch the case!" It is a golden rule.
An advocate who is always fumbling with his brief when he is examining a witness cannot follow the game that is on the table before him. Sound judgment is essential to the ex- amination of witness.
Two golden rules handed down from the eighteenth century, and maybe from beyond, are still unlearned lessons to each succeeding generation of advocates: 1. Never ask a question without having a good reason to assign for asking it. 2. Never hazard a critical question without having good ground to believe that the answer will be in your favour.
Most re-examination intending to rehabilitate the character of a witness is apt to make matters worse. These stories of actual happenings, trivial in themselves, teach us the necessity of judgment in advocacy. And I pray the young advocate not to rejoice too merrily over the errors of judgment of his seniors or lament too grievously about his own. Bear in mind that by acknowledged error we may learn wisdom, and that the only illuminant for the lamp of judgment is the oil of experience.
VII. THE LAMP OF FELLOWSHIP
my thinking one of the oldest and best unions. And if advocacy could be honestly described as a trade, then the phrase trade union might be accepted without demurrer. For the basic quality of a trade union, that which has made these institutions thrive against opposition, is the spirit of fellowship and un- selfishness which is the ideal of its members.
We have seen how of old the senior members of the Bar trained up the juniors in the mystery of their craft, and throughout the practice of the profession it has always been a point of honour for the elders to assist the beginners in those difficult days of apprenticeship. What could be more delightful and encouraging to a youngster than to be received by his genial, handsome leader in the presence of an admiring attorney.
No man ever attains a position at the Bar in which he can afford to despise the opinion of his fellow-men. The eulogies of public journals, even the praise and patronage of attorneys, are of no worth compared with the respect of the Bar.
Charles Russell, during the course of a trial, cross-examined a lady with great severity, and afterwards received an anonymous letter of a very abusive character, in which he was charged with having been guilty of conduct in his cross-examination "which no gentleman should pursue towards any woman." He thereupon sat down and wrote a letter to the counsel on the other side, in which he said, " I should be sorry to think this was true, but I am not the best judge of my own conduct,"
Russell's learned friend cleverly evaded responsibility by telling him that the character of a gentleman was one " we all know you eminently possess," with which certificate of character the great man was soothed and satisfied. With the decay of circuits and the passing of old customs and the silence of ancient convivialities, some of the spirit of fellowship may be lost. But we must remember that even the good old days were not without evidence of professional malice and uncharitableness. As far back as the reign of Francois I. it was a rule of the French Bar that " advocates must not use contentious words or exclamations the one toward the other ; or talk several at the same time, or interrupt each other." These words might still be engraved in letters of gold on the walls of our own law-courts, for on occasion the lamp of fellowship burns so low that such things occur. Still, at the English Bar we may claim that we set a good example to other bodies of learned men by our real attachment to the precepts and practice of fellowship, and may, without hypocrisy, commend the rest of mankind to follow in our footsteps, And do as adversaries do in law, Strive mightily, but eat and drink as friends.
Contempt of Court : Meaning
Maninderjit Singh Bitta vs Union Of India & Ors (2011) 11 SCALE 634
Bench: S.H. Kapadia, K.S. Radhakrishnan, Swatanter Kumar
- Government of India, on 28th March, 2001, issued a notification under the provisions of Section 41(6) of the Motor Vehicles Act, 1988 (for short,
the Act') read with Rule 50 of the Motor Vehicles Rules, 1989 (for short,the Rules') for implementation of the provisions of the Act. This notification sought to introduce a new scheme regulating issuance and fixation of High Security Number Plates. In terms of sub-section (3) of Section 109 of the Act, the Central Government issued an order dated 22nd August, 2001 which dealt with various facets of manufacture, supply and fixation of new High Security Registration Plates (HSRP). The Central Government also issued a notification dated 16th October, 2001 for further implementation of the said order and the HSRP Scheme. Various States had invited tenders in order to implement this Scheme. - A writ petition being Writ Petition (C) No.41 of 2003 was filed in this Court challenging the Central Government's power to issue such notification as well as the terms and conditions of the tender process. In addition to the above writ petition before this Court, various other writ petitions were filed in different High Courts raising the same challenge. These writ petitions came to be transferred to this Court. All the transferred cases along with Writ Petition (C) No. 41 of 2003 were referred to a larger Bench of three Judges of this Court by order of reference dated 26th May, 2005 in the case of Association of Registration Plates v. Union of India [(2004) 5 SCC 364], as there was a difference of opinion between the learned Members of the Bench dealing with the case. The three Judge Bench finally disposed of the writ petitions vide its order dated 30th November, 2004 reported in Association of Registration Plates v. Union of India Association of Registration Plates v. Union of India [(2005) 1 SCC 679]. While dismissing the writ petition and the connected matters, the Bench rejected the challenge made to the provisions of the Rules, statutory order issued by the Central Government and the tender conditions and also issued certain directions for appropriate implementation of the Scheme.
- Now, we would examine certain principles of law which would normally guide the exercise of judicial discretion in the realm of contempt jurisdiction. `Contempt' is an extraordinary jurisdiction of the Courts. Normally, the courts are reluctant to initiate contempt proceedings under the provisions of the 1971 Act. This jurisdiction, at least suomoto, is invoked by the courts sparingly and in compelling circumstances, as it is one of the foremost duty of the courts to ensure compliance of its orders. The law relating to contempt is primarily dissected into two main
adhered to. Whenever there are obstructions or difficulties in compliance with the orders of the court, least that is expected of the Government Department or its functionaries is to approach the court for extension of time or clarifications, if called for. But, where the party neither obeys the orders of the court nor approaches the court making appropriate prayers for extension of time or variation of order, the only possible inference in law is that such party disobeys the orders of the court. In other words, it is intentionally not carrying out the orders of the court. Flagrant violation of the court's orders would reflect the attitude of the concerned party to undermine the authority of the courts, its dignity and the administration of justice. In the case of Re: Vinay Chandra Mishra [(1995) 2 SCC 584], this Court held that `judiciary has a special and additional duty to perform, viz., to oversee that all individuals and institutions including the executive and the legislature act within the framework of not only the law but also the fundamental law of the land. This duty is apart from the function of adjudicating the disputes between the parties which is essential to peaceful and orderly development of the society. Dignity and authority of the Courts have to be respected and protected at all costs'.
- Another very important aspect even of the Civil Contempt is, `what is the attribution of the contemnor?' There may be cases of disobedience where the respondent commits acts and deeds leading to actual disobedience of the orders of the court. Such contemnor may flout the orders of the court openly, intentionally and with no respect for the rule of law. While in some other cases of civil contempt, disobedience is the consequence or inference of a dormant or passive behaviour on the part of the contemnor. Such would be the cases where the contemnor does not take steps and just remains unmoved by the directions of the court. As such, even in cases where no positive/active role is directly attributable to a person, still, his passive and dormant attitude of inaction may result in violation of the orders of the court and may render him liable for an action of contempt.
- It is not the offence of contempt which gets altered by a passive/negative or an active/positive behaviour of a contemnor but at best, it can be a relevant consideration for imposition of punishment, wherever the contemnor is found guilty of contempt of court. With reference to Government officers, this Court in the case of E.T. Sunup v. Canss Employees Assoc .. [(2004) 8 SCC 683] took the view that it has become a tendency with the Government officers to somehow or the other circumvent the orders of the Court by taking recourse to one justification or the other even if ex-facie they are unsustainable. The tendency of undermining the court orders cannot be countenanced. Deprecating practice of undue delay in compliance with the orders of the court, this Court again in the case of M.C. Mehta v. Union of India and Ors. [(2001) 5 SCC 309] observed : ".....clear lapse on the part of NCT and Municipal Corporation. Even if there was not deliberate or wilful disregard for the court orders, there has clearly been a lackadaisical attitude and approach towards them. Though no further action in this matter need be taken for now, but such lethargic attitude if continues may soon become contumacious."
- It is also of some relevancy to note that disobedience of court orders by positive or active contribution or non-obedience by a passive and dormant conduct leads to the same result. Disobedience of orders of the court strikes at the very root of rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. If the Judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs (refer T.N. GodavarmanThirumulpad 's case [(2006) 5 SCC 1]. The proceedings before the highest court of the land in a public interest litigation, attain even more significance. These are the cases which come up for hearing before the court on a grievance raised by the public at large or public spirited persons. The State itself places matters before the Court for determination which would fall, statutorily or otherwise, in the domain of the executive authority. It is where the State and its instrumentalities have failed to discharge its statutory functions or have acted adversely to the larger public interest that the courts are called upon to interfere in exercise of their extraordinary jurisdiction, to ensure maintenance of the rule of law. These are the cases which have impact in rem or on larger section of the society and not in personamsimplicitor. Courts are called upon to exercise jurisdiction with twin objects in mind. Firstly, to punish the persons who have disobeyed or not carried out orders of the court i.e. for their past conduct. Secondly, to pass such orders, including imprisonment and use the contempt jurisdiction as a tool for compliance of its orders in future. This principle has been applied in the United States and Australia as well. For execution of the orders of the court even committal for an indefinite term has been accepted under Australian law [ Australasian Meat Industry Employees Union v. Mudginberri Station Pty. Ltd. (1986) 161 CLR 98 (Australian High Court)] and American law, though this is no longer permissible under English Law. While referring to detention of a person for a long period to ensure execution of the orders in Re Nevitt [117 F. 448, 461 (1902)] Judge Sanborn observed that the person subjected to such a term `carries the keys of his prison in his own pocket.' Lethargy, ignorance, official delays and absence of motivation can hardly be offered as any defence in an action for contempt. Inordinate delay in complying with the orders of the courts has also received judicial criticism. It is inappropriate for the parties concerned to keep theexecution of the court's orders in abeyance for an inordinate period. Inaction or even dormant behaviour by the officers in highest echelons in the hierarchy of the Government in complying with the directions/orders of this Court certainly amounts to disobedience. Inordinate delay of years in complying with the orders of the court or in complying with the directed stipulations within the prescribed time, has been viewed by this Court seriously and held to be the contempt of court, as it undermines the dignity of the court. Reference in this regard can be made to ManiyeriMadhavan v. Inspector of Police, Cannanore [AIR 1993 SC 356] and Anil RatanSarkar and Ors. v. HirakGhosh and Ors. [(2002) 4 SCC 21]. Even a lackadaisical attitude, which itself may not be deliberate or wilful, have not been held to be a sufficient ground of defence in a contempt proceeding. Obviously, the purpose is to ensure compliance of the orders of the court at the earliest and within stipulated period.
