Judges’ commenting on Advocates: A case of shooting the messenger?

In a video shared widely on social media, Justice H.P. Sandesh of the Karnataka High Court can be seen reprimanding the Anti-Corruption Bureau of Karnataka (‘ACB’) for not producing documents in a bail matter and also, for not filing FIR against a Deputy Commissioner, who is alleged to have received a bribe of Rs. 5 lacs. Further, he also reveals that a sitting Judge of the Karnataka High Court tried to influence him in the matter. 

While Justice H.P. Sandesh’s efforts and concern for curing society from the “cancer” of corruption is laudable and deserves the support and appreciation it has received, the way the Learned Judge chastised the Advocate appearing for the ACB is a matter of great concern for all the members of the Bar as it is a case of punishing the messenger for the message. 

Remarks made by the Judge:

The Karnataka High Court in Dr. Jaya Balasundaram v. Sahara Gastroenterology (WP No.14226 of 2020) advised the Trial Court that the cause of judicial process is served more by restraint of unpleasant expressions than otherwise and observed:

“It hardly needs to be reiterated that the Bar and the Bench being two inseparable wheels of the same chariot, have to move shoulder by shoulder, each being complementary and supportive to the other, the ‘bar’ in between, notwithstanding; even if the submissions of the counsel are, at times, not couched in a pleasant language, a judge is expected not to loose his cool in his expression, be it oral or in writing; efficacy of the orders can be maintained sans acidity in the language employed”

However, the learned judge seems to have not paid any heed to the said observation. On the contrary, the Learned Judge makes scathing remarks against the Advocate appearing for the ACB. Some of the remarks are as follows:

1)         You are here to protect the culprits or general public, you being an advocate for ACB?

2)         You are appointed as Special Counsel to prevent the corruption or not?

3)         You are paid from the state exchequer.

4)         You are here to protect the institution. You eat the food of the institution. It is public money. 

5)         You are betraying the food you eat, (name of the counsel).

6)         You are here for public cause. You have to work for public cause. Not for individuals/money.

7)         (name of the counsel), what is this? It is “ashame” on you, for what do you have the black coat? 

8)        It is called as a noble profession, are you a noble person?

9)         You should have advised your client to place it before the court. If you would have concern on the general public, you would have directed them to place the records before the court.

Admittedly, the remarks were made as the Advocate for ACB had resiled from his undertaking to produce the documents. While the remarks may have been well-intentioned, the same was wholly disproportionate and uncalled for. Pertinently,  it was couched in a language casting aspersion on the character of the Advocate for the alleged acts of his client. It is difficult to fathom what the Learned Judge expected from the Advocate appearing for the ACB?

Can an Advocate act against the instructions of his client? Or can he compel / “direct” his client to produce documents that the client doesn’t want to produce for whatever reason? If a client has engaged an Advocate to represent him/her, can the Advocate act/make submissions contrary to the instructions/interests of the client in the name of public interest? Undoubtedly, an Advocate must represent the client within the contours of the law and without misleading the court or suppressing material facts. 

In the instant case, the Learned Judge’s concern seems to be that the Advocate should have ‘directed’ his client to produce the documents in ‘public interest’. All the while forgetting that lawyers are not appointed for espousing public interest but the specific case of the client, even if they are representing statutory bodies or other institutional clients. They cannot act contrary to the instructions of the client or conduct an enquiry into allegations of corrupt practices against their clients.

Professional Ethics:

Any such direction to produce the documents by an Advocate would be contrary to the statutory duty of an Advocate under Section 126 of the Indian Evidence Act, 1872 and Rule 15 of the Bar Council of India Rules framed under the Advocates Act, 1961. Rule 15 stipulates that:

“It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence”

Therefore, what the Learned Judge demanded of the Advocate appearing for ACB would tantamount to professional misconduct on the part of the Advocate. Inspite of stoically receiving a barrage of personal remarks from the Judge, the Advocate for ACB acted in accordance with Rule 15 and reminded the Judge that he has a “duty towards the client. We as lawyers are instructed by the client. We cannot go beyond the instructions.” Similarly, when the matter was taken up again in the afternoon session, the Advocate General for the State requested the Learned Judge to not make remarks against the Advocate as “we have no personal interest” in the matter.  

Thus, the Learned Judge has wholly erred in casting aspersions on the advocate appearing for the ACB and painting him with the same brush as his client. An advocate is not tainted merely because he may represent, in the eyes of the Judge, a tainted client. It would do a great deal of good if the Judges keep in mind the reply given by Ram Jethmalani when he was questioned on representing criminals. He replied:

“I decide according to my conscience who to defend. A lawyer who refuses to defend a person on the grounds that people believe him to be guilty is himself guilty of professional misconduct.”

Judges should, therefore, exercise restraint while making remarks against the Advocates and recognize the pivotal role that Advocates play in the dispensation of justice.

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