I
would like to recall two recent instances in the Supreme Court of India. Both
are, of course, casual, and off the cuff, yet as Fali Nariman says that
even obiter dicta remarks made by the judges during the hearing of
the cases convey some message, although they do not have any bearings on the
case. The first was made by Justice Ajay Manikrao Khanwilkar, who was a
Presiding Judge in Court Room Number 5. An elderly advocate did not address the
bench as ‘My Lord’, which has become the habit, but rather the nature of most
of the advocates, particularly Senior Advocates when saying or submitting
anything to the court. So much so, even if an adverse order is passed
most of the advocates bow their heads and say, ‘obliged my lord’. In fact, this
is an inexplicable expression when there was nothing to be ‘obliged’.In fact,
it is the height of the sycophancy that lawyers have inherited
from British courts. It is the time when the Indian judiciary with the
help of Artificial Intelligence must adopt such ways and means of conducting
the courts which should not be intimidating as it is in the present
scenario.
Most of the Advocates use the ‘my
lords’ without conjuring any meaning for the same. So, when an order was passed
against the submissions of an elderly advocate,.he simply said ‘it’s okay’ but
this was like a red flag to Justice Khanwilkar and he started fulminating and
sermonising to the advocate that 'you seem to be quite senior but it looks like
you have not gained experience about court craft commensurating with your
seniority'. The elderly advocate was aghast and flabbergasted at this sudden
outburst and lecturing by Justice Khanwilkar. A judge is known by his sagacious
and well-reasoned orders or verdicts and by his fragile ego.
The expression of the words like My
Lord(s) is the reflection of the servile mentality of the advocates. This was
normally used in England where the judges were considered to be the
representatives of the King but In India judiciary is one of the three
pillars of governance. It must command respect and not sycophancy from anybody,
much less from the lawyers. But this expression-my lords-has gained acceptance,
that too, after Independence defies all logic. And a judge if instead of
showing erudition, brilliance and congeniality depict his irascibility in the
courtrooms, then it cannot be appreciated or applauded. Therefore, the way
Justice Khanwilkar reacted towards the Advocate was unbecoming of him, although
he has been known for gentlemanliness. These days most of the courts conduct
their business in a hybrid mode i.e., hearings of the cases are allowed in both
physical as well as virtual modes. In some of the courts live streaming is also
permitted, which is a welcome move by all means.
In fact, the Bar Council of India must take
strict steps to ensure that the use of My Lord(s) is stopped immediately. Those
who are found violating the Bar Council rules should be penalised firstly, by
paying fines, and thereafter ‘warnings’ but if it is not mended even after two
warnings then the license to practice may be snatched for a month or two.
Otherwise, this fawning would continue to flourish because the new
breed of lawyers would continue to follow their seniors who
literally bend over backwards to please the judges with all humiliations and
insults.
The second incident is a very recent one of
4th January 2023, when two advocates started eulogising the late
Ashoke Sen and the late LM Singhvi. They started narrating their own
experiences about those two eminent lawyers who could argue their cases for
hours together without even properly going through the ‘briefs or files’. One
Advocate boasted that he used to brief Mr Sen in the lobby of the court and yet
he has seen him on his legs for many hours. Not to be outdone, another lawyer
said that he used to brief Dr LM Singhvi at the breakfast table for a few minutes,
yet he has seen him arguing at stretch in the courtrooms for many hours. They
were renowned lawyers which were why they must have been getting hefty fees
from their clients. Justice Ajay Rastogi echoed the views of both advocates and
he said that he has also seen Ashok Sen holding forth in the Supreme Court for
many hours without much preparation and judges used to listen to him with
rapt attention. He possessed the charisma of court craft, particularly on
constitutional issues. So far so good, but nobody narrated how those very
eminent lawyers had been handling the non-constitutional matters, where an
advocate has to be well prepared with facts.
Thanks to another judge of the Bench
Justice Ms Bela M Trivedi, who put things in the right perspective by
intervening in jest that it could happen only in the Supreme, not in other
courts. Some of the Advocates with accented English compel the judges to
tolerate them otherwise, there is no justification to ask the advocates to
carry on their unending arguments. She said that many times a mountain of
irrelevant arguments does not have any relevance. If an Advocate
conducts his/her case without reading the files and understanding the
briefs without weighing and understanding the points on the legal scale, the
advocate is certainly doing an injustice to the client (s). She was right
in saying that this could be possible only in the Supreme Court and not in any
other court.
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