This Article “role and relation of bar and bench” is written by Tshewang Dema, a student of BA.LLB (Hons.) at Lovely Professional University.
Workplace: Courts in India consist of two parts-
- The place where the judges sit is called a Bench
- The place where the Advocate sit is called a Bar.
So the term ‘Bench’ refers to the judges and the ‘Bar’ refers to the Advocates.
Bar-Bench relation means the cordial relation between the judges and the Advocates.
The faith in the judiciary of the general public and speedy justice mainly depends on the cordial relationship between the judges and the Advocates.
Relation between Bar and Bench: Administration of Justice
The important role of the Bar and Bench is to render Administration of justice
- What is Bar, if the Bench loses integrity?
- What is Bench, if the Bar is contemptuous?
In the Administration of justice, the role of Advocates is also equally important just like the judges. Therefore, rendering justice is their joint responsibility.
Without the help of Advocates, it is very difficult for the judges to arrive at a correct decision in a dispute. There require a cordial relationship between the Advocates and the Judges.
The Bar (Advocates) and Bench (Judges) play an important role in the administration of justice. The judges administer the law with the assistance of the lawyers whereas Lawyers are the officers of the Court, they guide the court to reach justice.
The obligation of Bar and Bench
As the officers of the court, the lawyers are required to maintain a respectful attitude toward the court. Moreover, bearing in mind that the dignity of the judicial office is essential for the survival of society.
Mutual respect is necessary for a cordial relationship between the two.
Bench & Bar are the two arms of the same machinery. Unless they work harmoniously, justice cannot be properly administered through the courts of law.
Lapses in fulfilling Obligation by Bar And Bench
The Lapses caused by Bar
Lapses occur from both sides, which tend to stiffen their relationship. Statements of lawyers influence the court. So they are under a moral and legal obligation to be fair and cordial in their dealings with the court.
It does not mean that the lawyers have to surrender to the improper behaviour of the judge. The lawyers also have the legal right to object to the improper behaviour of the judge. They are entitled to enlighten their grievances to the higher authorities of the court.
Lawyers have to maintain the dignity and decorum of the court. They have not to do or behave as such, which may bring down the reputation of the court in the mind of the litigants as well as the general public of the society.
The Bar Council of India has framed certain rules for observance by the lawyers towards the court, their colleagues and clients. An advocate should avoid insolent or insulting behaviour.
The attorney has a right to insist on a courteous and patient hearing from a judge till he is respectfully and relevantly arguing his case before him.
This right of the counsel deserves due respect from the Judge. The judge has no business to form a forehand opinion before the case is heard by him . He should avoid confrontation with the lawyers in the process of argument and examination of witnesses.
Lapses by Bench
It is also sometimes the non-patient behaviour of the judge towards the lawyers which causes problems in the administration of justice. It is the behaviour of the judge with the lawyers, which makes the atmosphere of the court quite cordial.
A judge has to be impartial in his dealings with advocates. The judge should not only be free from bias or interest in any case rather he should not be guided by obstinacy and snobbery in his conduct with advocates. It is so because the life, liberty, reputation and property of the citizens are greatly influenced by the decision of the judge.
The judge has to play a very temperate and sober role in the dispensation of justice to society. This he can fulfil by observing sober, cordial and moreover impartial behaviour, towards the lawyers at large.
Their relationship is quite delicate. On the one hand, it is important to allow an advocate to be firm and resolute in the pursuit of his case. On the other, the judge must maintain his authority in the court.
A Judge should not be over-sensitive to the remarks made against him. The Bench has to respect and safeguard the privileges of the Bar.
The judge should not interrupt the counsel till he is arguing relevantly and purposefully. Till the lawyer is presenting his case in an orderly way, there should be patient hearing and cooperation from the side of the judge, as otherwise, it would lead to a miscarriage of justice
Role of Bar and bench in Strengthening Relations for the administration of justice.
Judges have the primary responsibility to protect and preserve the independence of the judiciary. Moreover, a Judge should be honest and morally upright. He should have personal and intellectual integrity. His character and conduct should be praiseworthy.
Judges should not make any unwarranted comments in the open court about the Advocate’s lack of knowledge of the law. They should not ask any Advocate to leave the court, without sufficient reasons. Similarly, they should not ask any Advocate not to come to his court hereafter.
A lawyer is a member of the legal profession who represents the clients. He is an officer of the legal system and laso a public citizen having special responsibility for the quality of justice. He Performs the function of an advisor, evaluator and negotiator. Therefore a lawyer should be competent, prompt, diligent and Maintain proper communication with clients.
A lawyer should use the law’s procedures only for legitimate purposes and to not harass or intimidate others by using it.
He should demonstrate respect for the legal system and for those who serve it, including judges and public officials. As a public citizen, a lawyer should also seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.
Role of Bar in the administration of Justice
He should cultivate knowledge of the law beyond its use for clients, employ that knowledge in the reform of the law and work to strengthen legal education. Further, strive for the public’s understanding of and confidence in the rule of law and the justice system. All difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.
The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of the self-interested concerns of the bar. So the major role of the bar for the proper administration of justice and cordial relation with the bench are as follow:
- Every lawyer is responsible for observance of the Rules of Professional Conduct.
- They should give due respect to the judges and they must avoid speaking ill of the judges and the judiciary.
- They should help the judges in the trial of the cases by presenting the relevant law in the correct and clear manner.
- They should never act in such a way as to irritate the judges.
- If the judges pronounce a wrong order, they should not criticize the judges. They should also try to set right the wrong order through appeal.
- For getting favourable orders they should not give pressure or influence on the judges.
- If the judge’s behaviour is irritating and disrespectful to the Advocates should not enter into a direct confrontation with the judge.
- Through the Bar Association, the matter should be discussed with the judge in his chamber and shall request to avoid such misbehaviour.
Role of the Bench
- Impartiality: Judges should act impartially. They should not act in favour of any Advocate or a party to the dispute. A judge has to be impartial in his dealings with advocates. The judge should not only be free from bias or interest in any case rather he should not be guided by obstinacy and snobbery in his conduct with advocates.
- Avoidance of Interruptions: As far as possible, Judges must avoid interruptions while the Advocate is examining witnesses and arguing the case.
- Unwarranted interference and adverse comments by the Judges may upset the Advocates and thereby they may not be able to present the case properly. Interference of a Judge may be limited to the following circumstances
- to prevent repetition and waste of time
- to check the relevancy
- to get clarifications
- to express the court’s view on a point and
- to promote speedy disposal of the case.
- Proper Interpretation: During the process of administration of justice, often the courts have to interpret the Act, Rules, Codes, etc. In such cases, proper interpretation should be given with the object of rendering complete justice to the parties.
- Avoidance of Unreasonable Adjournments: Adjournments are given to afford a reasonable opportunity for the parties to present the case. As far as possible cases shall not be adjourned without reasonable and sufficient grounds. Unreasonable adjournment is the main reason for the mounting arrears of cases causing hardship to the parties.
- Speedy Disposal: Justice delayed is justice denied, hence cases should be disposed of as quickly as possible.
- Industriousness: It means regular and systematic hard work and study. A Judge should get acquainted with the latest developments and changes in the law by regular updating of the knowledge.
- Knowing in Law: Judges should possess deep knowledge of the law. They should have the ability to apply the proper law to the disputed facts and to take the right decision.
Rights and Privileges of Advocates
1. Right to Practice:
This is the only right of advocates that has been codified and placed in the Advocates Act, of 1961 with the duties and code of conduct of lawyers. most important exclusive right subject to fulfilment of conditions
- Section 29 Of Advocates Act: Advocates are the only recognized class of persons entitled to practice law.
- Section 30 Right of advocates to practice – Subject to provisions of this Act, every advocate whose name is entered in the [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends, –
- In all Courts including the Supreme Court;
- Before any tribunal or person legally authorised to take evidence; and
- Before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.
- Section 33- Advocates alone are entitled to practise
- Section 34→ empowers High Court to make rules prescribing conditions subject to which an advocate will be permitted to practice in the High Court and the courts below.
Hence, an advocate’s right to practice in all courts is subject to the rules made by High Court.
2. Right to Fee:
This right is absolute as it does not depend upon winning or losing the case and in either case, the client will have to pay up the fee.
3. Lawyer’s Right To Lien Over Client’s Papers:
It would lead to disastrous consequences as much as the flow of justice would be impeded. Court also noted that given the socio-economic conditions prevailing in the country, holding such a right of the legal practitioner may be susceptible to great abuse and exploitation.
The Supreme Court also went on to declare that while it was a professional duty and moral obligation of the lawyer to return the brief when the client required to change counsel but also declared that not returning the files would be considered professional misconduct on the part of the erring lawyer.
Important case laws highlighting the role and relation of the bar and bench for the proper administration of justice
What is a strike? Right to strike of lawyer or advocate.
Harish Uppal Ex. Captain v. Union of India A.I.R. 2003 SC 739→
This case is a prominent case based on lawyers’ right to strike. In this case, a Petition was filed against the undertaking of strikes by lawyers to protest against the various issues faced by lawyers against the Bar Associations across the country.
Petitioners wanted strikes by lawyers to be declared illegal as they violated the fundamental right of the client to justice.
Strikes are a weapon used by the downtrodden who knew no better means for resolving their grievances. lawyers as members of the elite class not justified in calling for a strike
The honourable Supreme Court held in the case of Harish Uppal Ex. Captain v. Union of India that “lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest if any is required, can only be done by giving a press statement. also T.V. interviews carrying out of Court premises banners or placards, wearing black or white or any colour arm bands, peaceful protest marches outside and away from the Court premises..” Moreover, if the lawyers as a part of the judicial structure, decide to interfere with the fundamental rights of the litigants, it would violate the integrity of the judicial profession as a whole.
Also, Section 7 of the Advocate Act provides respect for the functions of the Bar Council of India, but none of its functions authorizes it to paralyze the working of the Courts. On the contrary, it is enjoined with a duty to lay down standards of professional conduct and etiquette for advocates.
No Bar Council can ever consider giving a call for a strike or a call for a boycott. Recently, in December 2022, the Bar Council of India suspended 29 Odisha lawyers who resorted to vandalism during the strike. Pertinently, the bar body also passed an interim order suspending the licences of the practice of all the members of the Sambalpur District Bar Association (SDBA) until further orders.
Strike hampers right to speedy trial
In case any association calls for a strike or boycott the concerned State Bar Council of India must immediately take disciplinary action against the advocates who gives a call for a strike. It is the duty of every advocate to ignore a call for a strike or boycott. In spite of all these, the strikes have continued unabated.
The dispensation of justice must not stop for any reason. The strike by lawyers has lowered the image of the courts in the eyes of the general public.
Hussainara Khatoon vs Home Secretary, State of Bihar. It is a landmark judgement which highlighted the importance of timely justice as an integral part of a fair trial. It widened the scope of article 21.
The lawyers’ strike, however, results in the denial of these rights to the citizens in the State. Suspension of work or strikes are clearly illegal. And it is high time that the legal fraternity realizes its duty to society which is the foremost.
“It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day”.
A free and fearless Bar is not to be preferred to an independent judiciary. Nor an independent judiciary to a free Bar. Neither has primacy over the other. Both are indispensable to a free society.
P.D. Gupta v. Ram Murti and Others,
This case is regarding the conduct of a lawyer. A lawyer owes a duty to be fair not only to his client but also to the court as well as to the opposite party in the conduct of the case.
One Srikishan Dass died leaving behind extensive immovable properties.
Claims to the said properties were made by one Vidyawati claiming to be the sister of the deceased, one Ram Murti and two others who claimed themselves to be the heir of the deceased.
Later the said properties were purchased by the advocate of Vidyawati knowing them to be disputed.
The advocate thereafter sold the property to a third party and made a profit. A complaint was made against the advocate to the Bar Council of Delhi.
Since the disciplinary committee of the Bar Council of Delhi could not dispose of the complaint within one year. Therefore the proceedings had been transferred to the Bar Council of India under Section 36-B of the Advocates Act.
The disciplinary committee of the Bar Council of India found him guilty of professional misconduct and suspended him from practice for a period of one year.
The defendant’s advocate threw the shoes and shouted slogans in the Supreme Court of India. Both the disrespect and proceedings for professional misconduct were charged against him.
The Supreme Court found him guilty of contempt of court and gave him imprisonment for 4 months and a fine of 2000 Rupees.
Suo Motto Enquiry v. Nand Lal Balwani
It was held that the law does not give a lawyer, unsatisfied with the result of any litigation, a license to permit himself the liberty of causing disrespect to the Court or attempting, in any manner, to lower the dignity of the Court. It was also observed that Courts could not be intimidated into passing favourable orders.
Later Disciplinary committee as well as the Bar Council of India found him guilty of professional misconduct. They ordered him to remove his name from the Bar Council of Maharashtra and Goa.
The primary duty of the lawyer is to inform the court as to the law and facts of the case. He has to aid the court to do justice by arriving at the correct conclusions. Moreover, it is duty of court is to listen to the advocate patitently
Good and strong advocacy by the counsel is necessary for the good administration of justice. Consequently, the counsel must have the freedom to present his case fully and properly. He should not be interrupted by the judges unless the interruption is necessary.