CONSTITUTIONAL LAW

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The Supreme Court and Senior Counsel at Crossroads
by Upendra Baxi*

Cite as : (1987) 4 SCC (Jour) 1

The observations of the Supreme Court concerning the behaviour of senior counsel in re: T.V. Chaudhary1 make painful reading. The fact that such an urbane Justice as Justice A.P. Sen was moved to write (for himself and Justice B.C. Ray) four paras in a short judgment of fourteen paras about the role and obligation of senior counsel suggests a deep malaise, symptoms of which have erupted from time to time, as, for example, in Jagmohan case2 where counsel contradicted concessions recorded by the Court in the course of the judgment.

In this case, the matter was rather simple. The petitioner, an IAS official, complained that the suspension ordered against him by the Andhra Pradesh Government was discriminatory insofar as other equally culpable co-officers were treated leniently. The Court, before the 1986 summer vacation, expressed its surprise at this differential treatment and directed the State to proceed with obtaining of necessary permission for prosecution of the other officers. It also indicated that if this was not done "it may become necessary ... to revoke the suspension of the petitioner before the next hearing".3

The permission having been obtained, one of the adversely affected officials, T.V. Chaudhary, attacked the Court's order as "illegal", being a product of non-application of the judicial mind on the "relevant provisions of law, case-law, and parameters of judicial power and the necessity to observe the principles of natural justice".4 When the Court drew the attention of the learned counsel to these "objectionable" averments, it got the "impression that the application was settled by the learned counsel without noticing the offending averments".5

This was a serious enough matter.6 Apparently, it was aggravated by what subsequently happened, since the Court was constrained to put on record its "disapproval of the manner in which the arguments were advanced" with "undue vehemence and unwarranted passion, reflecting identification of interests beyond established conventions".7 Indeed, they were, said the Court, "of degrees (sic) not usual of (sic) enlightened senior counsel to adopt".8 The Court was moved to remind senior counsel at the Supreme Court for the need for reasoned argumentation, temperate behaviour and other virtues of rectitude which will make the senior Bar a "model for the junior members of the profession".9 The Court even had to indicate what the duties to "settle" pleadings mean in relation to senior counsel!10

It is incumbent upon the Supreme Court Bar Association and the Bar Council of India to take full cognizance of these anguished observations. The Court's observations must be fully discussed by senior counsel among themselves as a body, if they have not already done so, and an undertaking by way of a collegiate decision should be conveyed to the Chief Justice of India and his companion Justices that the Bar is as determined as the Bench to preserve the best standards and traditions. They should take this occasion to formulate a code of honour in the matter of settlement of pleadings, the size of pleadings, court-room conduct and decorum and other related issues. And the code should include the requirement that any concession given by counsel during the course of hearing should be immediately recorded in form of an affidavit and filed with the court, with a view to avoid conflicting retrospective recollections which tend to lower the dignity of the Bar and Bench as very nearly happened in Jagmohan case.11 The senior Bar should find it possible to take the observations of Justice Sen outside the immediate context of the case, as reflecting the overall desperation of the Court at some general trends over the last decade.

The Chief Justice of India and the Justices of the Supreme Court ought also to recall the scintillating observations of Lord Reid and Lord Denning quoted in the judgment12 when they decide to recognize a member of the Bar as senior counsel. The criteria by which this elevation is done are not publicly accessible. It is also not known whether the whole Court decides this matter informally through consensus or there is some kind of settled procedure where even one negative observation from any member of the Court would be dispositive of the nomination. Prescinding the vital issues of the right of information and of the problem of rationality in the exercise of this discretion, areas in which the Court itself has evolved creative norms over the last decade, one may assume that the decision to confer the honour of being recognized as senior counsel would be among the most agonizing decisions the Court would have to take from time to time. One hopes that it is not a routine decision. Only a sociological study could actually disclose how the Supreme Court has, over the years, exercised this discretion. There have been occasions in the past when recognition as senior counsel follows assumption to elected positions (in professional or political bodies). This might be a coincidence: one would like to think that honour, at least in this arena, is not conferred ex officio.

Be that as it may, if the British conceptions of legal roles are to be made applicable, it is only fair to expect that justices would show utmost rectitude in conferral of this honour on the members of the Bar. This would require, to my mind, at least a tradition of unanimity in decision and association of the Attorney-General of India in the decision-making process. And any form of canvassing by or on behalf of a prospective senior counsel should be treated with such repugnance as to ensure that such counsel is forever deprived of "silk". It should be underscored that the Bench and the Bar are accountable to the public, who invest a fortune to secure the services of senior counsel, on the assumption that they represent the highest credentials for accomplishing justice. Any further lamentation the Supreme Court is bound to reinforce the overall level of client dissatisfaction with the declining standards of service by senior professionals.13

* Professor of Law, Delhi University, Hon. Director of Research, Indian Law Institute. Return to Text

1. (1987) 3 SCC 258 Return to Text
2. Express Newspapers Pvt. Ltd. v. Union of India, (1986) 1 SCC 133 Return to Text
3. (1987) 3 SCC 258 at 261 Return to Text
4. Id. at 263 Return to Text
5. Ibid Return to Text
6. The high fees charged by senior lawyers are justified in the first place by the fact that they would pay careful attention to expeditious and equitable administration of justice in Indian Society. Absent this factor and you lose all cogent justifications for prestige, power and affluence of the senior Bar-See court's observations on the duties of senior counsel at p. 264. Return to Text
7. Supra note 4 Return to Text
8. Ibid Return to Text
9. Supra note 4 at 264 Return to Text
10. Ibid Return to Text
11. See supra note 2; see also U. Baxi: "Delay in Jagmohan Case", Statesman, November 13, 1985. Given the extraordinary circumstances, I was constrained to observe: "The least one could say in the circumstances is that the conduct of Mr Jagmohan, of the senior counsel representing him, and the advocate on record, is rather unfortunate. Senior counsel would benefit from recalling that, under the Advocates Act, they are officers of court; they have duties to the court as well as to the client, and one assumes that the latter set of duties cannot be efficiently performed without an affirmation of respect for the credibility of the court. Recognition as a senior advocate should not be made on a periodic assessment of how he or she balances obligations to a client and the institution of justice. But should the present unfortunate trend continue, Supreme Court judges may not be unjustified in considering this harsh step. Return to Text
12. Supra note 4 at 264-65 Return to Text
13. See on the overall aspect, U. Baxi, "The Pathology of the Indian Legal Profession", XIII Indian Bar Review, 455 (1986). Return to Text