Advocate Manoj Srivastava has an unusual request to make to his colleagues. “My earnest request to the Executive Committee and members of the Supreme Court Bar Association is that they should have a rethink think over felicitation functions, both at the time of joining and at retirement, for judges who remain non cooperative and non-cordial to the bar. We all are equal partners in the administration of justice and we accord respect for reciprocal response, not otherwise”, says he.
What triggered the advocate’s ire was something that happened in the Supreme Court recently when a judge, while hearing an application for condonation of delay enquired of the arguing counsel Manoj Dwivedi whether his writ petition was maintainable in service matter and that unless he managed to satisfy the judge on maintainability of writ petition, his application would not be heard. Dwiwedi would only say to the honourable judge : “as you please your lordship”.
Common law judicial pronouncements necessitate elaborate judicial opinions and is often seen as something of a literary genre. While judges are not expected to be stone-faced, the legal fraternity does expect a mix of gravity and compassion from the Bench.
India Legal spoke to Advocate Dwivedi in the matter. As he said:
The Justice asked me that “what is the issue..” I replied this is a service matter regarding reinstatement of terminated Employee, then I went on the prayer. Thereafter, he put me question on Maintainability of Article 32 Petition on Service matter. Then I asked to only allow my restoration application at this point of time. Subsequently he allowed my restoration and also condoned the delay of more than one and half years. Finally no adverse order was passed in my case.
The question thus arises whether the Justice sitting as Chamber Judge is vested with the jurisdiction of division bench to decide maintainability of the main petition? “In another matter that I appeared where bail was cancelled by Jharkhand HC for want of appearance of counsel who expired. How can an expired counsel can make appearance for accused?” – asks advocate Shrivastava, who happens to be a close acquaintance of Dwivedi.
The Supreme Court in Bani Singh Vs State of UP, (1996) 4 SCC 720 ruled that in a criminal appeal the law expects the appellate court to give a hearing to the appellant or his counsel and in absence thereof order is illegal.
While the adversarial justice system can function only with amicable reciprocity of the bar and the bench, the members of bar only wish to be treated with respect as they too are an integral part of the justice delivery system. A judge can dismiss an applicant but that cannot be on a whim; due process must be followed and the applicant must be given reasons. The Judicial Academies setup both nationally and at the state level are precisely educating the judges on this aspect, and more. However, behaviour is something that develops in due course of time and it vastly varies from one judge to another. A judge belittles his noble profession when in arrogance, he hears only himself instead of the counsel before him.
Most countries generally tend to uphold their judges in high esteem. Expecting any level of self-abnegation in judicial conduct thus becomes wholly unrealistic, except say in the French Civil law where judicial pronouncements are anonymous for sake of judicial independence, short for sake of clarity, and formulaic in lieu of reasons for the opinion.
The problem of judicial arrogance has been portrayed by Alice Woolley in her review of Christie Blatcher’s book Life Sentence. Blatchford, according to Alice, suggests that actors in the legal system are complicit in judicial arrogance while simultaneously having considerable arrogance of their own: lawyers and judges alike deny the rationality and dignity of the “non-lawyer,” refuse to admit their own faults, and tend both to aggrandize official power and to subdue public criticism. Although Blatchford was commenting on Canadian judges, but the plight is no different here. What one should actually be apprehensive about, is that judicial arrogance at some point of time will give way to injustice, and there may not be a redressal then.
–India Legal Bureau