My Lords - One humble submission!

Often in courts, particularly in Constitutional courts and tribunals, lawyers indulge in bench hunting and appeasement, rather than focussing on arguments based on law.

I was waiting in a tribunal for my case to be called. A lawyer who was making submissions before the Bench of a “learned” single-judge (a recently retired High Court judge) mentioned that his matter was filed in 2018 and prayed for an urgent hearing since it is a long pending matter. He had also filed an early hearing application for the same.

The Bench remarked,

“Oh, yours is a 2018 matter? Then we will have it after the vacation.”

The start of the vacation was more than a month away. Despite the lawyer expressing urgency, the Bench appeared to have decided not to hear the matter.

I had to face a similar situation a few days ago. I had a long pending matter before another tribunal member who had recently retired from the High Court. I submitted that the opposite party is trying to delay the matter and was seeking unnecessary adjournments. The judge said,

I will hear you now and keep it as part heard and will hear the opposite party in the next hearing.”

He kept his word. He heard me, gave no further time to the opposite party, heard them in the next hearing and reserved the matter for judgment. The matter was ultimately allowed in my client’s favour.

In both scenarios, the clients as well as the lawyers were similarly placed. Both cases were before a quasi-judicial forum, were long pending matters and there was an urgency to get the matter heard.

While one bench understood the urgency and did the needful, the other bench postponed the hearing unnecessarily only because the counsel brought the need for an urgent hearing to its notice.

I kept asking myself, why are two similar situations treated differently by the justice system? Does the system render justice to one person and injustice to another? This incident left a deep scar in my mind as a lawyer and necessitated this column.

This situation also took me back to my initial days of practice as a lawyer. In one of the tribunals I frequented, the judges sat in a particular bench for two weeks at a time. There were two benches at the tribunal and the judges worked on a rotation basis.

The then Chairman of the tribunal was a no-nonsense person and well-versed in law. While the Chairman sat in a particular bench, the cause list was very lengthy, with many matters listed in the admission/petition/hearing lists.

But in the case of another judicial member, fresh filings/petitions listed before his bench would be very few. This can be easily verified from the cause lists published at the time by the tribunal. Lawyers who had their matters in the final hearing list before this judicial member would try to get it adjourned, although the bench was aware of this and never granted adjournments. This was because unlike the Chairman, this particular judicial member was a hard nut to crack and the orders passed by him would depend on his whims and fancies, and not on judicial reasoning. 

As a young lawyer who was in his initial days of practice, I was curious about this situation and asked a senior lawyer,

Isn’t this forum shopping/Bench hunting?”

He quickly replied,

Not at all. This is the art of advocacy!

Often in courts, particularly in Constitutional courts and tribunals, lawyers indulge in bench hunting and appeasement, rather than focussing on arguments based on law. This is the harsh reality, no matter how much we try to deny it.

Even the apex court has taken note of this, remarking that the practice was rampant, particularly in bail application matters.

To curb this practice, the Supreme Court had also stipulated that if a bail petition filed by a person comes before a particular judge who is entrusted with the task of hearing bail cases and s/he dismisses it, all subsequent bail pleas by the same petitioner should also come before the same judge.

However, lawyers found a way to go around this rule by getting the matter withdrawn if the judge is not inclined to allow the bail plea. This is allowed by the courts.

I have heard judges saying in open court, when lawyers are on the verge of withdrawing their petitions (especially when Courts are about to close for long holidays or when the roster is likely to change soon),

You can try your luck before another Bench!”

In 1925, an article titled The Lawyer as an Officer of the Court, published in the Virginia Law Review and quoted by the Supreme Court of India in In Re : Mohit Chaudhary, set out the conduct expected from a lawyer. It says:

“The duties of the lawyer to the Court spring directly from the relation that he sustains to the Court as an officer in the administration of justice. The law is not a mere private calling, but is a profession which has the distinction of being an integral part of the State's judicial system. As an officer of the Court the lawyer is, therefore, bound to uphold the dignity and integrity of the Court; to exercise at all times respect for the Court in both words and actions; to present all matters relating to his client's case openly, being careful to avoid any attempt to exert private influence upon either the judge or the jury; and to be frank and candid in all dealings with the Court, ‘using no deceit, imposition or evasion’, as by mis-reciting witnesses or misquoting precedents.”

While we are often reminded about these noble duties by the Constitutional courts, the question that remains is, does the Bench set an atmosphere for the Bar to fulfill these duties?

More often than not, lawyers indulge in these practices for the sake of survival. They are answerable and accountable to clients, unlike judges, who are neither answerable for their faults nor accountable for their actions.

A classic example of this would be the case of Aryan Khan, who was remanded to judicial custody and lodged in jail for around 25 days, despite the absence of incriminating material against him. The NDPS court refused to grant him bail and he had to approach the Bombay High Court to get relief.

In another instance, just before the courts closed for the summer vacation this year, I was making submissions to get a fresh writ matter admitted. I then realized that the Bench was not likely to admit the matter. I requested the Bench to pass an order on merits so that I can file a writ appeal.

“I am not inclined,” responded the judge.

The matter was adjourned and was directed to be posted after the vacation. Rather than passing a speaking order dismissing the writ, the judge evaded the situation by refusing to admit the plea.

Even this experience was better than the time a judge was not inclined to hear the matter despite my requests for a hearing. He recorded the following in the remarks for the day’s hearing:

Counsel for the petitioner seeks adjournment. Allowed.

Imagine the client seeing this on the e-court website and calling up the lawyer for an explanation!

In the eleventh edition of Black’s law dictionary, a ‘Judge’ is defined as a public official appointed or elected to hear and decide legal matters in court and as a judicial officer who has the authority to administer justice. The word ‘justice’ is defined as the fair treatment of people; the quality of being fair and reasonable; and as the legal system by which people and their causes are judged.

If the judicial system does not reflect the meanings of these terms, it is bound to suffer, and people will lose faith in these institutions.

The above instances are few snippets from my short stint in litigation. The issues highlighted are only for self-introspection among all stakeholders.

Our Constituent Assembly took 2 years, 11 months and 17 days to complete the task of drafting a Constitution for India. It held 11 sessions covering a total of 165 days. 114 days were spent on the consideration of the Draft Constitution alone. This shows the depth of the democratic exercise that went into the drafting of the Constitution of India. There are many lofty goals this document aims to achieve. I sincerely hope that the Indian judiciary also upholds these Constitutional values and moves towards justice delivery, which is not person-centric but based on issues and facts.

Raghul Sudheesh is an Advocate practicing before the High Court of Kerala.  

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.

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