Judicial Misbehaviour

"Members of the judiciary at all levels must exhibit patience, compassion and a spirit of encouragement towards all, especially young members of the Bar. While it is certainly a solemn duty of senior members of the Bar to inculcate discipline, professional ethics and continuous learning, the responsibility does not lie with the Bar alone, but with the Bench as well, to nurture a sense of duty and integrity, so that every lawyer sees themselves as an officer of the court first" 

This week itself, the Jammu and Kashmir and Ladakh High Court on Monday observed that judges should refrain from making harsh or disparaging remarks against counsels, parties or witnesses, unless it is absolutely necessary for deciding the case and until they are heard. An absolute coincidence, Solicitor General of India, Tushar Mehta, released his book on this 10th May, titled The Bench, the Bar and the Bizarre. He has devoted an entire chapter to "Bullies on the Bench." However, even a person of his stature, who has a significant say in the appointment of judges to the Supreme Court of India and High Courts across the country, did not dare to name the specific "bullies" in the Indian judiciary, excusing himself with the caveat that he intends to continue practising.

It is a fact that while a few cases are blown out of proportion, misbehaviour by judges does occur across the country, though only a small percentage of the judicial community is involved. Even the Supreme Court of India has had its share of bullying judges, though many who continued in Delhi after retirement have been receiving their karmic retribution from members of the Bar. One retired High Court judge from Kerala High Court, who was known for humiliating lawyers, confessed to his brother retired judge, that he had stopped attending lawyers' functions to avoid the disrespect shown by the very lawyers who had once lordshipped him.

Seasoned lawyers do not love or respect a judge based solely on the legal orders they pass. Many are experienced enough to assess beforehand what the fate of a case will be on its merits, but they do expect the judge to treate them with dignity. I am not a fan of Justice Markendey Katju, as a judge or otherwise, but he deserves appreciation for his humility. Once, I had a small friction with Justice Katju in court. After the court hours, I, then a junior lawyer, received a call, not through his secretary but from the judge himself, apologising for his conduct. I, of course, apologised in return for my part of unacceptable behaviour.

The SCBA too has had to intervene on many occasions, making representations to moderate the behaviour of some Supreme Court judges. It is always difficult for a practising lawyer to respond to a humiliating judge; if anyone ventures to do so, their fate in that court may be sealed forever. Senior advocates, who are supposed to correct the judge, are the least reactive, because their professional stakes are very high. The success largely depends on the expressions and exchanges in court between the lawyer and the judge, projecting a certain cordiality that is visible to watching lawyers who are assessing who gets favourable orders from that court. So why burn the bridge for a cause, lets suffer, move on, and hold on to the mantra for success, never antagonise a judge

I find that bar associations are often the primary contributors of such judicial behaviour. Bar associations are not amorphous entities; they consist of ambitious lawyers regularly practising before the same judges, against whom they receive complaints from members of the Bar. Hence, while dealing with problematic judges, they need to become comfortable rebels, fighting only for causes that carry no personal risk or professional consequence. Judicial bullying is extra territorial and a universal phenomenon. Though, understandably, not much literature is available on Indian bullying judges, enough is written about such behaviour in foreign jurisdictions. Bullying and misbehaviour highlight a systemic issue in which the power dynamic of a courtroom is misused, often leaving members of the Bar feeling humiliated rather than mentored.

Misbehaviour can take different forms. One common tactic used by judges is to threaten with costs, warning that costs will be imposed if the lawyer continues arguing, and increasing the costs if the lawyer persists. This tool works both ways. It is a good deterrent even for well-behaved judges dealing with lawyers who believe they have the best case in the world and that the court is committing an injustice by dismissing it, the arguments will go on and on, wasting precious court time. The learned judge may invoke the threat of costs to control the This disciplinary tool works well with benevolent judges, but is counterproductive with intolerant and impatient ones. Judges known for intemperate behaviour, will start threatening with costs and keep escalating the amount much like an auctioneer calling out bids, preventing the lawyer to place even valid submissions.

Another most abhorrent form of behaviour is to humiliate and insult lawyers. If a lawyer uses a wrong word or expression, it can become their nemesis, with the judge seizing the opportunity to deliver a full lecture, invoking the old days of the Bar, effectively convincing the lawyer that they are not worthy of practising. Many practising lawyers have stories of specific judges, from the Supreme Court down to the Magistrate level, known for their toxic behaviour. A judge who is bound to read hundreds of pages every day is understandably prone to missing some issues, which often gain clarity only during oral arguments. But misplaced super confidence, or ego, causes some judges to restrain lawyers from proceeding with arguments altogether. I wish they would spend the initial three to four minutes listening calmly and then pose questions. In such situations, rather than a search for justice, the courtroom descends into an argument between the judge and the lawyer, rather than between the two sides. I have seen instances where a judge spends more than five minutes trying to convince the lawyer that they are not entitled to more than a minute of hearing further. As former Attorney General K.K. Venugopal once noted, we need empathetic and patient judges over mere "brilliance." A brilliant judge who is impatient and rude can do more damage to the cause of justice than a steady, calm judge who listens.

While judicial temperament is under scrutiny, the behaviour of advocates is no less concerning. Lawyers who happen to be bar association office-bearers in district courts and courts below in the hierarchy, often throw their weight around when favourable orders are not passed. They tend harass subordinate judicial officers by filing complaints and encouraging others to send anonymous complaints to the High Court. This creates a climate of fear for District Judges and judicial officers who walk a fine line, always anxious about their career progression. Many signature campaigns by lawyers, or calls for court boycotts, are merely to settle personal scores rather than to address genuine systemic flaws.

Intemperate behaviour is a clinical issue that requires scientific resolution. A little patience and anger management can resolve or avoid many confrontations. Courtroom decorum is a two-way street. In many instances, the fault does not lie solely with the lawyer; they tend to retort, hoping to signal that not all of them are conditioned to subject themselves to consistent misbehaviour. The problem often lies in human behaviour. When lawyers are elevated to the Bench, the sudden acquisition of power can alter their temperament. They often fail to realise that they will eventually return to society as private citizens. It is also worth noting that judges known for misbehaviour do not treat all lawyers equally with misbehaviour. Well-known senior advocates or relatives of judges rarely face such treatment. The victims of judicial outbursts are almost always the young, the marginalised, and those began their careers in small towns and villages..

The current state of affairs suggests that we can no longer rely on "unwritten rules" of conduct. There is a need for a clear, enforceable code of judicial conduct that applies to everyone from Magistrates to Supreme Court Justices. This should include mechanisms for lawyers to report judicial misbehaviour without fear of retribution. More and more cases are being reported thanks to online hearings. Since digital footprints are now available, they provide an opportunity to examine who is at fault in the courtroom. The live streaming of court proceedings work as a double-edged sword in the context of judicial conduct: it brings transparency and caution, reminding judges and lawyers that they are being watched by the public, conversely it also exposes cases of misbehaviour and shallow hearings, lowering the reputation of the judiciary in the eyes of the public.

India is a diverse nation, and its courts must reflect that inclusivity. We have lawyers from the costliest schools in the country to thatched-shed beginnings, with different manners and behavioural patterns. Some are sophisticated; others are on the path to refinement and polishing. They handle the issues of common persons, a myriad of issues that no other courts in the world encounter. They come to resolve, to seek justice. The judges often forget that they preside over an Indian court and expect an European standards of legal sophistication Supreme Court's order emphasising the need for encouragement of young lawyers by the bench is reassuring. However, for this to become the norm, both the Bench and the Bar must acknowledge their flaws and commit to a culture of mutual respect.

The author is a Senior Advocate practicing at the Supreme Court of India. The views expressed are personal.