Professional Ethics and Professional Accounting System
Unit 4

Bar Bench Relations

The chapter in briefProfessional Ethics and Professional Accounting System
Summary
Bar-Bench relations describe the professional relationship between the Bar (advocates collectively) and the Bench (judges).

Bar-Bench relations describe the professional relationship between the Bar (advocates collectively) and the Bench (judges). A healthy Bar-Bench relationship is the cornerstone of the adversarial justice system. Mutual respect, independence, and cooperation define the ideal relationship.

Source Provision Content
BCI Rules, Section I (Rules 1 to 10) Duties to court Dignity, respect, no private communication, restraining the client, dress, etc.
Contempt of Courts Act, 1971 S.2(b), S.2(c) Civil and criminal contempt
Contempt of Courts Act, 1971 S.5 Fair criticism of a judicial act is not contempt
Contempt of Courts Act, 1971 S.12 Punishment: simple imprisonment up to six months, or fine up to Rs 2,000, or both; apology may discharge
Contempt of Courts Act, 1971 S.13(b) Truth as a defence if in the public interest and bona fide (added 2006)
Contempt of Courts Act, 1971 S.20 No proceedings after one year from the date of the alleged contempt
Art. 19(1)(a), 19(2) Speech Contempt of court is a ground of reasonable restriction
Art. 129 / Art. 215 SC / HC Courts of record with power to punish contempt of themselves
Advocates Act, S.34, S.35 Court rules; Bar Council discipline Audience is regulated by courts; misconduct by Bar Councils

Foundations of the Relationship

Principle From Bar's Side From Bench's Side
Mutual Respect Address with dignity; no personal attacks Allow argument without interruption; no humiliation
Independence Fearless advocacy; argue unpopular positions Decide without fear or favour
Cooperation Assist court in administration of justice Ensure advocates are heard fully
Restraint Fair criticism, not scandalous allegations Judicial temperament; no arrogance
Equality Every advocate has equal standing before court No preferential treatment to senior counsel
Accountability Subject to disciplinary jurisdiction Subject to impeachment / judicial accountability

Rights and Obligations

Advocate's Rights Before the Bench

Right Source
Right to be heard Natural justice (audi alteram partem)
Right to make submissions Inherent in the advocate's role
Right to fair criticism of judgments Art. 19(1)(a)
Right to respectful treatment Implied from professional dignity
Right to adjournment on genuine grounds Court's discretion; reasonable accommodation expected
Right to practise in all courts S.30, Advocates Act (stated to be in force from 2011: unverified; Harish Uppal, 2003, para 34 noted it was then not in force), subject to court rules under S.34

Advocate's Obligations Towards the Bench

Obligation BCI Rule
Dignified and self-respecting conduct; complaints against judicial officers to proper authorities Rule 1
Respect for the court, mindful of the dignity of judicial office Rule 2
No private communication or improper influence on a judge Rule 3
Restrain the client from unfair practices; no scurrilous allegations in pleadings Rule 4
Proper dress Rule 5
Not appearing before a court where a relative is a judge Rule 6
No bands or gown in public places except on ceremonial occasions Rule 7
Not acting for an organisation of which he is on the executive committee Rule 8
Not acting where he has a pecuniary interest Rule 9
Not standing as surety for a client Rule 10

Correction: the earlier table put "not mislead the court" at Rule 4 and "punctuality" at Rule 7. Rule 4 is restraining the client; Rule 7 is wearing bands or gown in public. The duty not to mislead comes from the advocate's role as an officer of the court (D.P. Chadha, 2001).

Contempt and Its Limits

Criminal Contempt (S.2(c), Contempt Act)

Civil contempt (S.2(b)): wilful disobedience of any judgment, decree, direction, order, writ or other process of a court, or wilful breach of an undertaking given to a court.

Criminal contempt (S.2(c)): publication (by words, signs or visible representation) of any matter, or doing any act, which:

  1. (i) scandalises or tends to scandalise, or lowers or tends to lower, the authority of any court; or
  2. (ii) prejudices or interferes or tends to interfere with the due course of any judicial proceeding; or
  3. (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

Fair Criticism vs. Contempt

Fair Criticism (Permissible) Contempt (Punishable)
Reasoned analysis of a judgment Unsubstantiated attacks on judge's integrity
Academic critique of legal reasoning Attributing corrupt motives without evidence
Highlighting errors for appeal Scandalising the court to lower its authority
Public discourse on judicial reform Interfering with pending proceedings
Comparative analysis of jurisprudence Personal abuse of a judicial officer

Test: Does the statement impair public confidence in the administration of justice? If yes, contempt. If it merely expresses disagreement with a decision, fair criticism.

Fair criticism: S.5 protects fair comment on the merits of a decided case.

Truth as defence: S.13(b) (inserted in 2006): the court may permit justification by truth if it is in the public interest and the request is bona fide.

Not contempt unless serious: S.13(a): no punishment unless the contempt substantially interferes, or tends to, with the due course of justice.

Example (fair criticism): After a controversial judgment, Advocate G writes an article: "The court's reading of the revision power in this case departs from earlier Supreme Court authority and may create confusion in subordinate courts. With respect, the reasoning on inherent powers is not persuasive because..." This is reasoned critique. It attacks the reasoning, not the judge.

Example (contempt): Advocate G posts on social media: "Judge Z gave this order because he was bribed by the opposite party. Everyone knows his price." This attributes corrupt motives without evidence. It scandalises the court and undermines public confidence. Criminal contempt.

Example (borderline): Advocate G says at a Bar Association meeting: "The pace of disposal in Judge Z's court is the slowest in the district. Cases are rotting." This is factual (can be verified from court statistics). If stated without malice and aimed at systemic improvement, it is likely fair comment. But if stated publicly to humiliate the judge and with no constructive intent, it could be contempt.

Example (pending proceedings): While a murder trial is ongoing, Advocate G gives a TV interview saying, "The evidence is overwhelming. He is clearly guilty." This prejudices the fair trial. Even if G is not connected to the case, the statement interferes with due course of justice.

Strikes and Boycotts

Position Authority
Lawyers have no right to strike or call a boycott, not even a token strike Ex-Capt. Harish Uppal v Union of India (2003), para 35
A lawyer holding a vakalat cannot refuse to attend because of a strike call Same
No Bar Council or Bar Association may call a meeting to consider a strike Same
Only in the rarest of rare cases (dignity or independence of Bar or Bench at stake) may courts overlook an abstention of not more than one day Same
Lawful protest: press statements, TV interviews, banners outside court, arm bands, peaceful marches away from court, dharnas, relay fasts Same
Courts may frame rules barring advocates guilty of contempt or unbecoming conduct from appearing Harish Uppal para 34; BCI v High Court of Kerala (2004)

Correction: the earlier note said "token strike: no exception recognised" (Uppal allows a narrow one-day exception) and cited Dhananjay Sharma for boycotts (that case is about false affidavits).

Why: Litigants, not judges, suffer from strikes. Grievances against a judge go to the Chief Justice of the High Court or the in-house procedure.

Answer Plan (16 marks)

  1. Introduction: Bar and Bench as two wheels of justice.
  2. Duties of the Bar: BCI Rules 1 to 10; officer of the court.
  3. Duties of the Bench: patience, courtesy, hearing.
  4. Contempt: S.2(b), S.2(c); S.5, S.12, S.13, S.20; Vinay Chandra Mishra, D.C. Saxena, Arundhati Roy, Dhananjay Sharma.
  5. Contempt versus discipline: SCBA, Pravin C. Shah, BCI v HC Kerala, Mahipal Singh Rana.
  6. Strikes and boycotts: Harish Uppal.
  7. Suggestions and conclusion.

Recall Check

  1. What constitutes "scandalising the court" under S.2(c) of the Contempt of Courts Act?
  2. What is the distinction between fair criticism and contempt?
  3. Can lawyers go on strike? Cite the relevant Supreme Court decision and its one exception.
  4. Can a court suspend an advocate's licence while punishing contempt? Trace Vinay Chandra Mishra to SCBA.

Key Cases

In re Vinay Chandra Mishra (1995) 2 SCC 584 In Re Vinay Chandra Mishra 1995
Held: A senior advocate (then BCI Chairman) who shouted at and threatened a High Court judge in open court was guilty of criminal contempt. Under Art. 129 read with Art. 142 the Court gave six weeks' simple imprisonment (suspended for four years) and suspended him from practice for three years. Status: Overruled in part by SCBA (1998) on the suspension point.

Supreme Court Bar Association v Union of India (1998) 4 SCC 409 Supreme Court Bar Association v Union of India 1998
Held: Suspension or removal of an advocate is for the Bar Councils under the Advocates Act; Art. 142 cannot be used to take it over in contempt. Courts may still refuse audience to a contemnor until he purges the contempt.

Ex-Capt. Harish Uppal v Union of India (2003) 2 SCC 45 Ex Capt Harish Uppal v Union of India 2003
Held: No right to strike or boycott, not even a token strike; narrow one-day exception; courts control audience.

Bar Council of India v High Court of Kerala (2004) 6 SCC 311 Bar Council of India v High Court of Kerala 2004
Held: A High Court rule barring a contemnor advocate from appearing until he purges the contempt is valid.

Pravin C. Shah v K.A. Mohd. Ali (2001) 8 SCC 650 Pravin C Shah v KA Mohd Ali 2001
Held: Purging contempt needs a sincere apology to the court, not just serving the sentence; until then the advocate cannot appear.

Mahipal Singh Rana v State of UP (2016) 8 SCC 335 Mahipal Singh Rana v State of UP 2016
Held: An advocate who intimidated a Civil Judge in open court was guilty of criminal contempt; licence suspended for a further five years, barred from Etah courts until he purges the contempt.

D.C. Saxena v Chief Justice of India (1996) 7 SCC 216 D C Saxena v Chief Justice of India 1996
Held: Scurrilous allegations against the Chief Justice in a writ petition were criminal contempt; Art. 19(1)(a) does not protect them. Dr Saxena appeared as a party in person, not as an advocate. Correction: the earlier citation "(1996) 5 SCC 216" is wrong.

In re Arundhati Roy (2002) 3 SCC 343 In Re Arundhati Roy 2002
Held: Statements in her affidavit imputing improper motives to the Court scandalised it; one day's simple imprisonment and a fine of Rs 2,000.

Dhananjay Sharma v State of Haryana (1995) 3 SCC 214 Dhananjay Sharma v State of Haryana 1995
Held: Filing false affidavits to mislead the court is criminal contempt under S.2(c). Correction: it is not a boycott case.

Distinctions

Aspect Civil Contempt Criminal Contempt
Definition Wilful disobedience of court order Scandalising court / obstructing justice
Nature Disobedience of specific direction Offence against the court's authority
Purpose Compel compliance Punish and deter
Remedy Punishment under S.12, often eased by compliance Punishment under S.12; apology may discharge
Limitation S.20: one year from the date of the contempt Same
Examples Not obeying an injunction; breaking an undertaking Threatening a judge (Vinay Chandra Mishra); false affidavits (Dhananjay Sharma)
Defence Disobedience not wilful Fair criticism (S.5); truth (S.13(b)); no substantial interference (S.13(a))

Flashcards

What is the test for distinguishing fair criticism from contempt?

Does the statement impair public confidence in the administration of justice? If yes, contempt; if it merely disagrees with a decision, fair criticism.

Can the Supreme Court directly suspend an advocate from practice for contempt?

No. Vinay Chandra Mishra (1995) did so, but SCBA v Union of India (1998) overruled it on this point: licence suspension is for the Bar Councils. The court may refuse audience until the contempt is purged.

What did *Harish Uppal* (2003) hold about strikes?

No right to strike or boycott, not even a token strike; at most a one-day abstention may be overlooked in the rarest of rare cases.

Is truth a defence to criminal contempt?

Yes, under S.13(b) inserted in 2006, if the court finds it in the public interest and the request bona fide.

What channels exist for advocates with grievances against a judge?

Complaint to High Court Chief Justice; in-house inquiry procedure; impeachment (for HC/SC judges); representation to government.

What is the relationship between contempt power (Art. 129/215) and disciplinary power (Advocates Act, S.35)?

They co-exist. Courts punish contempt (S.12: up to six months, Rs 2,000 or both) and may refuse audience; only Bar Councils suspend or remove (SCBA, 1998; Pravin C. Shah, 2001).

Exam Scenario

Problem: Advocates at a Hyderabad district court believe a judicial officer is biased and rude. Their Bar Association resolves to boycott his court for two weeks, and 200 cases are adjourned. One advocate, Kiran, also posts that the judge "takes money from the other side". Discuss.

Requirement Applied Result
Right to strike or boycott None (Harish Uppal) Not met
Rarest-of-rare one-day exception Two weeks over a grievance against one judge Not met
Bar Association may call a strike meeting Barred (Harish Uppal) Not met
Proper channel used No complaint to the High Court Chief Justice Not met
Kiran's post: fair criticism (S.5) or truth (S.13(b)) Bald imputation of bribery, no proof Not met

Conclusion: (1) The boycott is unlawful; advocates holding vakalats who stayed away are answerable to their clients and to the Bar Council under S.35. (2) Whether the boycott is also criminal contempt under S.2(c)(iii) depends on the High Court's view of interference with justice. (3) Kiran's post scandalises the court (S.2(c)(i)), as in D.C. Saxena and Arundhati Roy; punishment up to six months or Rs 2,000 or both (S.12), and a sincere apology may discharge him. (4) The court may refuse him audience until he purges the contempt (Pravin C. Shah), but cannot suspend his licence (SCBA); the Bar Council can. (5) Proceedings must start within one year (S.20).

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Citation

LawStories, “Bar Bench Relations”, Professional Ethics and Professional Accounting System notes, https://lawstories.in/subjects/professional-ethics/notes/bar-bench-relations

Educational study notes, not legal advice. Cite primary sources in professional or academic work.