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Advocate Law: The relationship between Bar and Bench

Introduction:

The Advocate Law or the Advocates Act, 1961 is a comprehensive Act that aims to strengthen the legal framework for judges, lawyers or legal practitioners in India. It lays down the regulations or guidelines that materialize the establishment of Bar Councils in India and the need for a Pan-India Bar. Essentially, this Act comprises of regulations that are to be followed whilst registering with state-level bar councils, along with the necessary documents and credentials that a person must possess to be able to practice law in India. The guidelines to registration and the type of quality that a legal institution may uphold is set by the Bar Council of India which is the supreme authority.

The Advocates Act, 1961 is an indirect amendment of the Indian Bar Council Act, 1926. A particular Act is passed by the Parliament of India with the intention of setting up laws that govern legal practitioners. The Bar Council of India has the responsibility of establishing such regulations with the authority bestowed upon it by this Act, which are thereby called the Bar Council of India Rules. This collection specifies the kinds of rules that are pertinent for practicing or are essential for legal education, whilst also indemnifying any kind of misconduct[1].

Primary features of the Advocates Act, 1961:

  1. The enactment of this Act saw the formation of the Bar Council of India and State Bar Councils[2].
  2. Self-governing status was awarded to the Bar Council
  3. A practitioner cannot join more than one State Board, but may be transferred from one to another.
  4. The Act promoted the idea of such similar roles being provided to advocates all over the world.
  5. Different guidelines were established for the Bar Council at the state and union levels.
  6. The Act included regulations for enlisting all of the laws in our legal system into a single document.
  7. Titles such as “Lawyer” or “Vakil” were terminated and were replaced by a single title of Advocate.

The Advocates Act, 1961 has been revolutionary in the establishment of a proper hierarchy and relationship between courts and bar councils as well as judges and advocates. It has a significant influence in the strengthening and proper maintenance of the relationship between the bar and the bench. The Bar-Bench relationship has always been a fragile one and requires constant monitoring and legality, which is provided by legislations such as the Advocates Act, 1961.

The Bar:

Bar is attributed to be an inclusive term for all the advocates who are allowed and licensed to practice law in the courts of India, or any particular court of any particular state. The word “Bar” was first used in England to signify the partition of bar, fixed in a court so as to divide the court between two parts, one for the lawyers and officers and the other for the general public. In recent times, the term “Bar” has also been used for the advocate’s part of a court or for the judicial officer’s part.

In the words of Mr. Henry Campbell Black, “Bar is the railing that differentiates the front area of the court here the Judges sit, court personnel, lawyers, and witnesses of the court matters; from the rear are which provides sitting for the observers.”[3]

The Bench:

The term Bench signifies all the Judges collectively taken as one. It is a metonym used to define the members of the Judiciary, or the Judges of a particular court.

The term Bench is also used to simply signify the location where the Judges in a court usually sit.

The Bar-Bench Relation:

The Bar-Bench Relation in legal terms signifies the cooperative relationship between the Judges and the Advocates. The administration of justice in a state or a country lies in the proper functioning of the Bar (Advocates) and the Bench (Judges). Judges rule out justice and administer the law in synchronisation with the advocates. The lawyers, also rhetorically known as the officers of the court, have the supreme responsibility of facilitating and assisting the court in the administration of justice. They are bound to maintain order and respect the court and its dignified position in the survival of the society.

The cordial relationship between the Bar and the Bench strengthens the faith of the public in the judiciary. Rendering justice in the court is the responsibility of both the advocates and the judges. A good relation curbs any delay in the administration of justice and the expenses that it may incur.

The preservation of the Bar-Bench relation requires utmost mutual respect. Judges and advocates must constantly be in support of each other. Differences in duties might sometimes lead to arguments between advocates and judges, but it is the responsibility of the advocate to maintain decorum inside the courtroom and provide due diligence to the Bench.

The attitude of an advocate towards the Tribunal should be of utmost integrity, irrespective of the Court’s position. This can be correctly observed in Mahant Hakumat Rai v. Emperor2[4] wherein the Lahore tribunal held that, “Without failing in respect to the Bench, it is the duty of the members of the Bar to claim their rights to be heard by the tribunal before which they are practicing.” Additionally, the advocate should never hold a private derogatory opinion against the judge as it is his responsibility to preserve the integrity of the Judiciary. Similarly, it is the responsibility of the judiciary to be respectful and promote the traditions of the Bar.

Commitment of the Bar towards the Bar-Bench Relation:

An efficient advocate is always committed to the strengthening of the Bar and Bench relation and can do so by following the guidelines below.

  • Judges are to be respected and given due diligence by the advocates and should avoid passing any derogatory remark against the judge or the Judiciary.
  • The advocate should in no way criticize the verdict given by the judge and should instead file another appeal.
  • The advocate should avoid exchanges of dialogue with the judge in case the judge is being disrespectful towards him. He should instead dictate his grievances to the Bar Association.
  • The advocate should always be helpful in court proceedings and present the law in a cordial manner.
  • The advocate should never pressurize the judge to get a verdict in his favour.

Commitment of the Bench towards the Bar-Bench Relation:

The strengthening of the Bar-Bench relation ensures the faith and confidence of the public in the Judiciary. Hence, the Bench should also remain committed towards this relationship and may follow the steps below in doing so.

  • Impartiality: Judges should always remain impartial and never act in favour of an advocate or a party.
  • Judicial Respect: A Judge should always ensure that due diligence is given to his fellow judges and advocates.
  • Speedy Disposal: Cases should reach a conclusion as soon as possible and justice must be delivered. Hence, speedy disposal is essential.
  • Patient Hearing: Judges should be committed to providing advocates with the opportunity of presenting their cases fully. He should always have an open mind and avoid any bias.

Role of Advocates Act, 1961 in strengthening the Bar-Bench Relation:

The Advocates Act, 1961 has been critical in the maintenance of the cordial relationship between the Bar and the Bench in India. It provides a legislation that ensures that the grievances of both judges and advocates are heard and their positions are respected.

In T.N.Raghupathy vs High Court Of Karnataka & Ors[5] the litigant looked for a writ of mandamus for outlining new standards stringently in consonance with the arrangements of Section 16(2) of the Advocates Act, 1961 in the question of assignment of senior backers. By doing this, the litigant practiced his privileges as a promoter. Subsequently, the Advocates Act, 1961 furnishes advocates with a medium to practice their privileges, consequently unintentionally fortifying the Bar-Bench connection.

In Noratanmal Chouraria Vs. M.R. Murli & Anr[6] it was maintained by the Supreme Court that a legal counsellor is obliged to notice the standards of conduct expected of him, which make him deserving of the certainty of the local area in him as an official of the Court. In this way, disregarding the way that he was not acting in his ability as a backer, his conduct was ill suited for a promoter, and the Bar Council was supported in continuing with the disciplinary procedures against him. Hence, Section 35 of the Advocates Act, 1961 issues punishment of advocates for misconduct, thereby holding them accountable and strengthening the Bar-Bench relation.

Sanctity of the Bar-Bench Relation:

The relationship between the Bar and the Bench, as previously stated is fragile. Our representative democracy is yet to totally free itself from the colonial system of Judicial Courts. Hence, the bar-bench relation is yet to evolve completely and both the bar and the bench are yet to become responsible frameworks for the implementation of justice.

The aforementioned problem requires a proper sense of mutual respect between the bar and the bench, with their objectives focusing on the welfare of the citizens and the protection of their fundamental, constitutional and human rights.

The Supreme Court of India, therefore realising the importance of the Bar-Bench relation has stated in the case of P. D. Gupta v. Ram Murti and Others[7] that “The procedure of administration of justice must be kept clean and uncorrupted. The Administration of justice is not only a matter of concern for the Bench, but it also concerns both the Bench as well as the Bar. The principal ground for recruiting judges is the Bar, both the judges and the advocates together complement one another.”

Conclusion:

In conclusion, there lies a scrutinizing observation an unhinged and free Bar cannot possess greater importance than an independent judiciary, nor an autonomous judiciary to a free bar. Neither has a power over the other. Both are imperative to a free society. An independent Bar surmises a free judiciary through which that freedom may, in case vital, be vindicated. A proper means for guaranteeing judges of their freedom is a capable, polite, refined and, learned Bar. To surmise, proportional change of conduct by the Bench and the Bar is the cornerstone to the smooth working of courts in everyday interest of the general public.

Advocate Law: The relationship between Bar and Bench.

Edited by: Pervez Sadiq Rahman

College Name: Christ University, Bangalore (3rd Semester)


[1] The Advocates Act, 1961, §35.

[2] The Advocates Act, 1961, §4.

[3] Black’s Law Dictionary

[4] Mahant Hakumat Rai v. Emperor2, AIR 1943 Lahore 14

[5] T.N. Raghupathy v. High Court of Karnataka & Ors., CIVIL APPEAL NO. 11439 OF 2014 [Arising out of S.L.P. (Civil) No. 22725 of 2014]

[6] Noratanmal Chouraria Vs. M.R. Murli & Anr [2004] Insc 283 (16 April 2004)

[7] P. D. Gupta v. Ram Murti and Others, AIR 1997 SC 283

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