Judicial Functioning Needs Complete Overhauling

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.