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Synopsis: The relationship between the bar and bench has gone from one of mutual respect and equality to the one between ruler and ruled.
Propriety or conformity to established norms can be very dangerous. In the past, it led to evils like child marriage, slavery and the holocaust. Now this propriety has reached the Judiciary, with the relation between them turning from that of mutual respect to one between ruler and ruled.
How can one know that the Ideas of propriety exist in Judiciary?
In Judiciary, practices like improper roster management, unfair collegium recommendations, blatant bias in favour of select counsels and conflict of interest in hearings fall in the zone of propriety. It affects the dispensation of justice, but it does not have a formal mechanism of redressal.
They are not challenged because the legal profession is largely regulated by norms of propriety, and these norms are often controlled by the bar. It prevents the bar from challenging any actions of the bench.
So, in the present system, obedience is rewarded. While independent thought is seen as a threat to the system. This is a bad example to the next generation of lawyers.
Why lawyers are accepting the Ideas of propriety?
They accept due to the significant control on a lawyer. As a lawyer’s license can be denied due to “ungentlemanly conduct” under the Bar Council rules.
A lawyer can also be denied designation as a senior advocate, despite merit and integrity.
Even the recognition can be withdrawn from those lawyers that have been designated as a senior.
How does this constitute misuse of power?
There have been instances of the use of criminal contempt against members of the bar. This may vary from something as small as a tweet to actions as big as strikes. All these are clubbed with conduct that is considered scandalizing or that ‘lowers the authority of any court‘.
This is done without scrutinising whether the authority of the court was being exercised within the confines of legality and whether the intent of the members of the bar was to scandalise or lower the authority of the court.
How does the Judiciary can course-correct it?
The Ideas of propriety do not improve the perception of the Judiciary amongst the people, because respect cannot be demanded; it must be commanded.
The Court’s authority is built by its judgements, and this cannot be lowered by critics. So the Judiciary should allow an open exchange of views and function more democratically.
Source: This post is based on the article “Ideas of propriety must not be used by courts to control and silence lawyers” published in the Indian Express on 9th September 2021.