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Professionalism- Bar And Bench

V.Sudhish Pai
3 Dec 2020 4:36 AM GMT
Professionalism- Bar And Bench
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December 3 is observed as Advocates Day. It marks the birth anniversary of Dr. Rajendra Prasad, our first President, who was also the President of the Constituent Assembly, and, of course, a truly eminent lawyer. He had a brilliant academic career. After a Master's degree in Economics, he obtained his Master of Law from Calcutta University and later Doctor of Law from Allahabad...

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December 3 is observed as Advocates Day. It marks the birth anniversary of Dr. Rajendra Prasad, our first President, who was also the President of the Constituent Assembly, and, of course, a truly eminent lawyer. He had a brilliant academic career. After a Master's degree in Economics, he obtained his Master of Law from Calcutta University and later Doctor of Law from Allahabad University. He joined the Bar at Calcutta in 1911. Rajen Babu caught the eye of Sir Asutosh Mookerjee who sent for him and appointed him a Professor in the Law College. Even as a junior his drafts and his notes were considered excellent, drawing encomiums from such celebrated figures as Sir Rash Behari Ghose. He would sometimes rest his case only on one ground of appeal which is a mark of the most distinguished talent born out of supreme self confidence and which gained him the plaudits of the legendary Chief Justice, Sir Lawrence Jenkins. He shifted to Patna in 1916 when the Patna High Court was established and became more active in public life. He completely gave up his practice and plunged into the freedom movement in 1921. After that, Rajendra Prasad did only one case, a case which he had handled from the beginning and which reached the Privy Council. He went to brief the lead counsel who was to appear in the Privy Council. Dr. Prasad immensely impressed the counsel: He knew and remembered every word in the paper book covering 15000 printed pages, with witness number, page number, paragraph number, the details of the documents, with the legal implications in depth! The English barrister preferred only Prasad to brief him. Such was the measure of the man. Dr. Prasad, in his autobiography speaks of the meticulousness and the very high standards of professional competence and preparation of the brief for the hearing before the Judicial Committee of the Privy Council.

On an occasion like this it is appropriate to reflect upon law and the profession.

We are professionals – whether as lawyers or judges or academicians. Our professional equipment is towards achieving effective and efficient justice delivery. That is the whole aim and purpose of the institutions and systems of which all of us are a part. Our justice delivery system is the system of courts presided over by judges and aided by lawyers in the discharge of their functions. Peace is the fruit of justice. Justice is what all beings seek. "Justice is the greatest interest of man on earth, it is the ligament which holds civilized beings and civilized nations together," said Daniel Webster. It is said that the end of law is justice. The concept of justice is concerned with the adjustment of human relations, as Dean Roscoe Pound said. He touched the essence of the matter when he said: Historically these are three ideas involved in a profession: organisation, learning and a spirit of public service. These are essential. The remaining idea, that of gaining a livelihood, is incidental.

Lord Macmillan in his speech on Law & History remarked, "We call ourselves a learned profession. Let me remind you that we are also a liberal profession. The difference between a trade and a profession is that the trader frankly carries on his business primarily for the sake of pecuniary profit, while the members of a profession profess an art, their skill in which they no doubt place at the public service for remuneration, adequate or inadequate, but which is truly an end in itself. The professional man finds his highest reward in his sense of his mastery of his subject, in the absorbing interest of the pursuit of knowledge for its own sake, and in the contribution which, by reason of his attainments, he can make to the promotion of the general welfare. It is only by the liberality of our learning that we can hope to merit the place in public estimation which we claim, and to render to the public the services which they are entitled to expect from us." This is indeed a very comprehensive summing up of a professional and what is required of him.

A lawyer, it has been rightly said, by Sir Asutosh Mookerjee, is more than a mere agent or servant of his client. He is also an officer of the Court and has such he owes the duty of good faith and honourable dealings to the Courts before which he practises the profession. His high vocation is to inform the Court as to the law and the facts of the case and to aid it to do justice by arriving at correct conclusions. His office is the very badge of responsibility, a patent of trustworthiness derived from his position; consequently he ought not to be suffered to pass for what he is not.

The profession of law is a great calling, but it is one in which the lawyers have great responsibility. To discharge that responsibility the lawyer must make himself equal to the task. The profession calls for great knowledge and wide culture. A great lawyer, it is said, has to be necessarily a great man; his life demands a maturity of intellectual powers, a fund of emotional wealth, a keenness of moral fervour and a quality of self-restraint which experience alone can offer.

Without an adequate conception of the requirements of his office it is impossible for a lawyer to perform effectively the duties attached thereto. In the first place men of law have to be truly learned. "Knowledge of law increases one's understanding of public affairs, its study promotes accuracy of expression, facility in argument and skill in interpreting the written word as also some understanding of social values." A lawyer must be equipped with significant learning which is more than a mere accumulation of facts, and which makes a difference in his whole personality. One cannot hope to thread the maze of intricate arguments if the mind is not disciplined by the habit of accurate reasoning or advise safely if one has not thoroughly digested the legal principles. It is, therefore, necessary to endeavour to attain this.

Law is a vast science and though there may be as much certainty in it as in any other science, its boundaries, like the horizon, seem to recede as we advance. Its acquisition is more than a labour of life and it can be with none the subject of unshaken conflict. One has to read widely subjects apart from law so as to avoid the grave danger of losing in course of time- common sense and a sense of reality. A lawyer's education never ceases- it continues. To perform well one's duty as a lawyer or as a judge one should first and always be a thorough student. As Sri Ramakrishna Paramahamsa said, "As long as I live, so long do I learn." A man of law is always a student- like Ulysses seeking knowledge 'like a sinking star, beyond the utmost bound of human thought.' It is worthwhile to remember that the great lawyer Sir Jamshedji Kanga even at 90 said, "I am still learning the law".

Law is both a science and an art. A lawyer's equipment will be incomplete without a sense of legal history which is indispensible for understanding the inter-relationship of all institutions and disciplines. Science gives precision and sharpness, arts lend liberality and breadth to legal discourse. While the study of science and technology sharpens the mind and intellect, it is arts and humanities which broaden the vision and enable one to understand and appreciate the finer aspects of man and nature. "One's judgment can be ripened only by an awareness of the course of human life, its failures and successes notwithstanding, its indomitable will to endure. And for this, one's horizon has to be widened and outlook clarified by knowledge of what men have striven to do and how far their hopes and fears have been realized. There is no substitute for an open mind enriched by reading and the arts." As Ruskin said art is the conveyance of the significance of man's inner attitude towards everything. Over the ages mankind has built up a treasure house of knowledge and art- of thoughts that wander through eternity and of art which is the wide world's memory of things. "The communication of the dead is tongued with a fire beyond the language of the living." (T.S.Eliot). "A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect," said Sir Walter Scott.

How broad based and incisive one's knowledge of the law has to be is brought out by Cardozo when he said that those who would earn her (our Lady of the Common Law) best rewards must make their knowledge as deep as the science and as broad and universal as the culture of their day and that she would not be satisfied with less. And he went on to add that he, her life- long votary, had not been able to kiss even the hem of her robe. No branch of learning, it is said, is useless in the life of a true lawyer. A clear grasp of the facts of each case and the legal principles laid down therein is the essential pre-requisite for mastery of case law. The reason of the law is the life of the law- He knoweth not the law who knoweth not the reason thereof. A careful study and understanding of the general principles will be helpful in the practice of the law and in deciding cases. The importance of all this is that it inculcates clear and accurate thinking and is necessary for an understanding of the force which animates civilised society and to help ascertain truth 'for the highest end viz. justice.'

It is true that one may not, and cannot, know everything. But one will have to know where to find it. Without a background of learning one can never frame the questions right and never locate the source of the answer to the questions as they arise. Paradoxical though it may seem, it is true that one must know the law to some extent to know where to find it. That is because without that the subject cannot be seen in its true colours and further one cannot find what is required unless one knows where to find it which again means that one must have sufficient learning for that purpose.

Samuel Johnson said half the knowledge consists in knowing the books. That highlights the importance of libraries and how to know and use them. As Fredrick Pollock said in his Oxford Lectures the lawyer must acquire the habit of first hand work among the sources. Law is a living science. First hand reading of the original material is imperative. It is essential to read and be familiar with classics in every subject. Lesser books would not really suffice. A lawyer and also a judge must know how to find the material and equally how to use it, be they the statutes or judgments in law reports, text books, commentaries or periodicals as also journals and books on general subjects. He must also familiarize himself with technical expressions and legal abbreviations. He must have at least a passing acquaintance with law reports and law reporting. It is important to remember not to be content with reading the head notes of a judgment. Not only is it insufficient but there may be mistakes in them and it can be misleading. Reading a good, well crafted judgment on whatever subject or question will help widen one's horizon, broaden one's outlook, suggest new lines of approach to legal issues, cultivate the art of perceiving distinctions and furnish with a stock of forceful vocabulary. A Privy Council opinion is a typical example. One cannot perhaps think of a more liberal education and equipment. But having a stock of books without reading them reminds us of Gurudev Tagore's observation that to possess a library without using it is to be like a child who wants a light burning all the time he is asleep.

Lord Denning's advice to men of law is worth remembering, namely, that you begin and end the day reading poetry. Poetry gives one precision of expression. A poet expresses in a couple of stanzas what takes pages of prose. Words are the lawyer's tools of trade. Language is the vehicle of thought. It is necessary to cultivate a command over the spoken and the written word. There should be no clumsiness in expression. It should be marked by clarity and precision combined with elegance. Nothing can be a better equipment. One need ideas, then words will flow. One should make the language of the judgments one's own; be familiar with and used to legal jargon. All this comes about by regular reading.

Apart from serious legal reading one could with profit and pleasure devote time to reading lighter literature touching upon the law and to works that set out the background in which the lawyer lives. It would also be rewarding and delightful to read biographies and autobiographies of men of law. Every man of law should study the lives of great lawyers and judges who shed lustre on the profession. That would be both educative and inspiring and would produce in everyone a yearning for what is good and great.

As Joseph Story said, 'Law is a jealous mistress and requires a long and constant courtship. It is not to be won by trifling favours but by lavish homage.' That is why Lord Eldon advised that a lawyer and a judge should live like a hermit and work like a horse. One essential pre-requisite for success in the profession is the capacity for hard and regular work. It is rightly said that the genius of success is the genius of hard work; industry can supply even the lack of learning or intellect, for genius itself is the infinite capacity for taking pains.

There is an important advice that C.K.Daphtary gave F.S.Nariman: that it is better to spend more time thinking about a case than merely reading the brief. This applies to judges also. And it is said of Sir Jamshedji Kanga that he was intensely in a case which to him was a living thing engaging all his faculties. Even more important than how to argue a case is how not to argue! One must know law with clarity and precision- that is a science. One must know its subtleties and the charm and persuasiveness of presentation- that is an art, the genius of a person like Carson who could make you feel that his client was the best of men and the cause he espoused was the most just.

The Bar has great traditions which need to be cherished, imbibed and passed on from generation to generation. Blackstone speaks of 'the practice of learning the mechanism of legal business at the desk of some skilful attorney.' Sir Fredrick Pollock says in the same vein that reading in counsel's chambers has been the most approved method of becoming acquainted with the practical work of the Bar. There is first the atmosphere of law in which you will learn to live and there is the contagion of example. The other training ground is of course the Court. In the learning and practice of law as in every other walk of life one learns by watching and by example both what should be done and what ought not to be done and how to do it and how not to. Sir Jamshedji Kanga speaks of how as a young lawyer with hardly any brief he sat in Court and watched and learned from what others did, particularly what not to do. The former Chief Justice of India Justice J.S.Verma was a pupil in the chambers of Justice G.P.Singh the well known author of 'Principles of Statutory Interpretation.' The senior gave the junior a table and a chair and advised him just to watch and learn and that he would not teach him anything.

The seniors owe a duty and responsibility to themselves and to the profession to train and rear a brand of dedicated and truly learned lawyers who would defend and keep inviolate the rule of law and tend the sacred flame of truth and justice. One splendid example of this tradition comes to mind. W.C.Bonerjee one of the earliest Indian Barristers, a distinguished leader of the Calcutta Bar and the first President of Indian National Congress took in his chambers S.P.Sinha as his pupil and that was responsible for the making of Lord Sinha, Baron of Raipur and Privy Councillor; Sinha took B.C.Mitter as his junior and that gave India Sir Binode Mitter who later sat on the Judicial Committee of the Privy Council. Mitter admitted N.N.Sircar as his junior which gave us Sir N.N.Sircar, a great advocate and Advocate General and a distinguished Law Member and a brilliant leader of the Legislative Assembly. Sircar trained in his chambers and gave the Bar a brilliant band of lawyers such as Sarat Chandra Bose, elder brother of Netaji and an accomplished lawyer and public figure and Sir S.M.Bose who became Advocate-General. Among Sarat Bose's juniors were S.R.Das who rose to be one of the distinguished Chief Justices of India and P.B.Mukharji, the brilliant Chief Justice of Calcutta. In his long career S.M.Bose's chamber was a nursery for training a large number of distinguished lawyers. This is a tradition which has to be kept up, revered and emulated. Tradition, said Carlyle, is an enormous magnifier. But traditions are not like instant coffee. Each generation would have to imbibe and cherish them. In this context it is important to bear in mind that teachers and seniors should lead and teach by example. Their lives and actions should be the greatest lesson. Prof. Upendra Baxi recently remarked: "We live in an era of massacre of ancestors which is now considered a public virtue and a sign of worldly progress. But collective amnesia of what happened in the past is not an estimable value. Without living in the past its recall is important, for it is necessarily presaging a future." We cannot forget or overlook the enduring relevance of the past and its torch bearers.

It is important to remember that success in litigation largely depends upon a thorough preparation of the case. And the lawyer owes that duty to his client and equally to the court. Accurate knowledge of the details of a case is always helpful. One's distinction as a lawyer depends upon the capacity and preparedness to master details. Selective faculty which grows with study and experience is to be acquired. As one prepares the case one should learn to select the more important facts and know and remember them accurately while the less important ones may be known merely in outline. One of the greatest advantages in preparing cases is to arrange the narrative of events chronologically. No less an authority than Sir Charles Russell (later Lord Chief Justice Russell) said that it is 'a simple rule which enables you to unravel the most complicated story and to see the relation of one set of facts to another.' Arranging the case papers in their order is equally important. It is rightly said that the facts are meaningless unless they fit into a hypothesis. Take instructions from the client fully and properly, preferably noting them down. Pleadings are to be concise and to the point with only narration of facts, not arguments or law. It is said that the great Sir Varadachariar (later Judge of the Federal Court) when approached to settle pleadings would immediately strike out any adjectives and embellishments retaining only what was absolutely necessary. Kanga's advice to his juniors was if the Solicitor or the client wants something to be included in the pleadings, do it if it is not harmful to the client's interests even though it may not be strictly necessary.

One is expected to make proper notes in a case, notes of the facts, the relevant documents and the case law and the points dealt with therein. The notes of the facts and the law should be well made and clear such that another lawyer could, after making a quick study of them, do the case himself. It is necessary that a case is studied not once but sometimes over and over again because repeated study brings in new ideas and gives the whole case a new dimension. This many a time facilitates in winning even what appears to be a weak case at first sight. All cannot be an Inverarity, a Bhulabhai Desai or a Palkhivala who never made any notes but had the whole case- the facts and the law- in their head, just glancing at the papers once. These are great exceptions to be worshipped and admired, not attempted to be emulated, for, that would be futile.

Talking of scholarship, thoroughness and preparation, one is tempted to recall some instances of how good lawyers dedicated to the study and practice of law applied themselves. P.R.Das, undoubtedly a great and successful lawyer and advocate once spent the whole summer vacation re-reading the entire set of Indian Appeals (about 75 volumes) and making fresh notes. That redoubtable lawyer Bhashyam Ayyangar, though he was well versed in the legal lore, would look up and read every relevant provision of law before preparing a pleading. He would also read a judgment from the beginning till the very end.

Lord Denning advised that a lawyer should be neat but not gaudy. Seervai emphasised the importance of being a sound, not flamboyant or fashionable lawyer. Lawyers ought to imbibe, nourish and carry forward the great tradition of scholarly critics- of subjecting the judicial power to the restraints of reason- of sceptical analysis, of philosophical enquiry. There is nothing more satisfying and ennobling than learning for its own sake. The opportunity to apply it will come and the learning acquired will then be handy. "If American judges are the most powerful on earth, so too American law schools and legal writers are the most influential."

With such an attitude towards learning and knowledge we live in the company of the great. One has to keep "the company of great thoughts, the inspiration of great ideals, the example of great achievements, the consolation of great failures" so much so that the buffets of circumstance and the caprice of fortune leave one untouched and certainly unswayed.

This discussion will be incomplete without a reference to Justice Muthuswamy Iyer's Convocation Address.

"You should remember, if you desire to rise to professional eminence, that law is both a science and an art, and that your success, whether at the Bar or on the Bench, will depend on the clearness with which you understood the principles of the science, and on the readiness with which you will pass through a complicated mass of facts in the midst of animated and often eloquent addresses, taking in as it were by intuition each fact, referring to its appropriate principle and estimating its legal value within a given time. The study of law, as has been well said, is, in its higher sense, the study of the philosophy of social life. The art you have to practise is one of the noblest; its object is the protection of human interests in all the relations of life, and the method by which rules of decision are deduced must satisfy at once the requirements of legal science and of substantial justice….."

We live in an age characterised by a loss of the sense of values and 'ignorance compounded by arrogance.' The pursuit of the higher and nobler ideals of the legal profession is becoming increasingly difficult and half baked ideas reared by accident have sway. It is then necessary to pause and reflect on what has been and what should be. We need to remind ourselves about the basic truths. Values, said Judge Learned Hand, are ultimate, they admit of no reduction below themselves.

Every member of the Bar is a trustee for the honour and the prestige of the profession as a whole. Even more important than intellectual equipment is moral equipment. In his book 'Legal Ethics' G.W.Warvelle writes: 'Because of the magnitude of the interests placed in the hands of its members, the responsibilities which they assume and the confidence with which they are entrusted, there is demanded of them in the exercise of their duties, an exemplification of the highest qualities of moral excellence.' Character is vital in all professions and walks of life, it is even more so for a lawyer. We need to bear in mind Palkhivala's insightful words, "Character is integrity plus altruism. Fame is a vapour; popularity an accident; riches take wings and those who cheer you today will curse you tomorrow. Only one thing endures- character." The path of the novice is beset with so many temptations. There are snares and pitfalls in every step but it is for him to stand his ground and remember that the most worthy and effective advertisement is the establishment of a well merited reputation for professional capacity and fidelity to trust. Professional ethics is but an abstract denomination for an honest and truthful life. The code of ethics for the lawyer is no different from that for a moral man. The same standard and test apply to one's conduct and action both inside and outside the profession. Nothing that is morally wrong can be professionally right.

One is required to cultivate what has been significantly described as 'professional habits' as distinguished from 'business habits'. Whatever tends to lower the standards of the profession and impair its dignity is against public policy even if the question of private morals be left out. The employment of any methods or appliances by a practitioner that tend to interfere with the administration of justice is not professional. There are also matters in respect of which no moral reproach may attach in ordinary life but the high standards demanded of the legal profession require that they should be avoided. The relationship between a lawyer and his client is one of absolute trust.

A lawyer is to be polite and respectful to the court but certainly not servile. As Chief Justice Cockburn advised while an advocate should be fearless in carrying out the interests of his client, the arms which he wields are to be the arms of the warrior and not of the assassin. Lord Atkin similarly warned that you should avoid confusing your client's interests with your still higher duty of observing truth. The peculiar position of an advocate imposes upon him duties in several directions. Though he represents a client and owes duties to him he is also an officer of the court and a counsellor to it with special duties to discharge. At the same time, as a member of the legal fraternity he has responsibilities to the profession. He also owes duties to his opponents as a co-operator with the court in its search for truth. He owes duties also to himself. He is under obligations to the public and to the State. To maintain a perfect balance between these various and sometimes conflicting duties is no easy task.

One cardinal principle, sadly observed more in breach today, is not to accept briefs which one cannot attend. It is recorded of Sir James Scarlett (later Lord Abinger) that one of his greatest merits was that when he was engaged in a cause his services might always be relied upon and that he disdained to adopt the practice of taking contemporaneous briefs in all courts and wandering from one to another. In more recent times in India we have the great examples of Sir Kenneth Kemp, Motilal Setalvad and H.M.Seervai who did not take up cases if they were already engaged in other matters.

It is very important to remember that money is a good servant but a bad master. Money cannot and should not be the driving force. As Disraeli perceptively said, money is not the measure of a man, but it is often the means of finding out how small he is. While a lawyer is entitled to legitimate fees, it cannot be exorbitant or extortionist. One cannot be driven by the mad urge to earn riches overnight. Patience and perseverance surely pay in the long run.

The words of Rashbehary Ghose in summing up his Tagore Law Lectures in 1876 are worth recalling... the time given to a scientific study of law is never wholly thrown away. However... laborious days are not always crowned with riches and honours; for the race is not invariably to the swift, nor the battle to the strong... But a higher guerdon awaits those who pursue learning for its own sake... The dust of daily life tends to deaden those finer sentiments to which life should owe its savour...Here one cannot fall into the habit of prizing low and gross ideals without suffering deterioration in one's intellectual as well as moral fibre. It is advisable, therefore, betimes to labour and to wait; and if one is ever tempted to join in the fierce hunt after the vulgar prizes of the world, it should be remembered that, after all, the successful man as he is called looks sleek. And, he is not infrequently:

A poor player/ That struts and frets his hour upon the stage/And then is heard no more.

Seervai brought to bear to a practical and highly mercenary, and at times unprincipled, legal profession a moral eminence. A solicitor went to him for an opinion in a complicated case. Seervai held about 6 or 7 long conferences. After the opinion was given the solicitor was shocked at the paltry amount of fees mentioned in Seervai's bill. He went to Seervai and told him to increase the fee charged as what was billed did not reflect the amount of work put in by Seervai. Seervai's answer was remarkable- that the client had come for his opinion on the assumption that Seervai knew the law. It took Seervai long conferences and a lot of reading by himself so as to best acquaint himself with the law. It was, said Seervai, for his knowledge of the law and not for his ignorance that the client had come to him. Therefore the fees charged though abysmally low was fully justified. When a young colleague asked as to what was wrong in charging high fees when clients were willing to pay, Seervai's answer unhesitatingly was, "If a man was willing to be robbed, would you be a thief?" He insisted on staying in a hotel room without a balcony because a room with balcony would cost fractionally a little more. And he did not want the client to pay unnecessarily for this.

I have heard from my senior that Setalvad was once paid Rs.1700/- as fee on his being briefed for the Coffee Board. He wrote back stating that his daily fee for appearance was Rs.1600/- and for conference it was Rs.80/- thus totalling to Rs.1680/- and a cheque for the balance Rs.20/- was sent enclosed. That was the level of probity and adherence to values.

Chief Justice P.B.Mukharji recalled how his senior, Sarat Chandra Bose impressed upon him that pursuit of professional success should not mean a mechanical pursuit for money. Sarat Bose himself at the peak of his professional career had become a victim of that failing. Then one evening to rescue himself from that he went to a spot overlooking the Hooghly and threw into the river a few of the silver coins which he brought with him, promising himself that he would never be a slave to silver or gold and he never was.

These are but a few instances of some of the all time greats who taught us by their example, who did not allow fame or wealth to tarnish their soul.

Professor Walter Gellhorn who had a long and distinguished career as Betts Professor of Law at the Columbia Law School had the choice of joining a law firm at the famous Wall Street of New York or teaching at the Columbia Law School after completing his clerkship with Justice Brandeis. On being asked by Brandeis the young lawyer indicated his preference to join the law firm which would bring him great returns and with which he could lead an independent life. The great judge then made a profound remark- that if independent life was his goal then he ought to know that independence comes not from the amount one earns, but from how one spends whatever one earns, that is, from the kind of life one leads. That changed Gellhorn's preference. He took to teaching- the rest is history. With great contentment and sense of pride he told his students that he never ever regretted his decision.

Kulapathi Munshi had gone to Madras as a counsel for an accused in a criminal case. The prosecution was represented by the Advocate- General Rajammanar, later Chief Justice of Madras High Court. The fairness with which he presented the prosecution case drew the remarkable compliment from Munshi that he could meet every point put against him by the prosecution, but he had no answer to the absolute fairness which marked the Advocate General's presentation. No greater tribute could be expected from an opposing counsel.

As counsel we are expected to place all material before the Court including cases against us. As a young lawyer in the mid-1960s Soli Sorabjee appearing before a Bench presided over by Justice Subba Rao found the judges fully in his favour. But he knew that there was a judgment which squarely concluded the case against him and he expected the opposite side to cite the case. That did not happen and the matter spilled over to the following day. Sleep evaded Sorabjee as he was in a dilemma as to what was to be done. His juniors agreed with him that he had to bring it to the notice of the Court. The following day also the opposite side did not cite the case. Sorabjee in all fairness brought it to the notice of the Court and tried his best to distinguish it. Following his placing that judgment before the Court, the case was certainly decided against his client but he earned a good night's sleep and even more a high reputation for fairness and earned the good will of the Bench.

It is said that Kanga's fairness and integrity were such that he would never make a wrong legal proposition and would also cite cases against himself. He would tell judges if they wanted to decide against him they should rest their judgment on the ground that he was suggesting. He never wanted any decision to rest on unsupportable grounds whether in his favour or against him. That was his veneration for the law. The same is true of Setalvad. Apart from his legal acumen and knowledge Setalvad's sense of fairness as a counsel, particularly as Attorney General, seeking to dissuade the Court from holding in his favour if it did not reflect the correct legal position was also brought to bear upon his work. In more recent times we know of Palkhivala returning Prime Minister Indira Gandhi's brief when the Emergency was declared and Fali Nariman resigning as Additional Solicitor General.

In today's setting, though all that is mentioned above is the ideal, one is not sure how to go about it. Apart from losing the case legitimately, one may even run the risk of being accused of colluding with the opposite side. No doubt these are stern and exacting standards not easily attainable, yet the attainment of which should be the aim, however far and remote. We should hold up our hands to the stars for then we may fall on the tree tops. But if we aim much lower it is not known where we may fall. Never give a quarter. When once we compromise on something then there is no end to which it may go. Sydney Harris's remark comes to mind: Once we assuage our conscience by calling something a necessary evil, it begins to look more and more necessary and less and less evil.

Judging, it is said, is not a job, it is a mission, a way of life. Judging is a tough job, though Learned Hand, with his more than five decades of experience on the Bench, referred to it as a "delectable calling". Judge Learned Hand posed the rhetorical question as to whom judges were accountable and pointing to the books in the shelves answered it is to them. Judges are thus accountable to history and tradition and to law. Professionalism is the proficiency and expertise of a professional which is equally relevant and necessary for a judge also. Judicial behaviour, ethics and neutrality are indispensible in the functioning of a judge. These ideas are non-negotiable in the justice administration system. As Justice Krishna Iyer always observed, judges also function under the constitution and the law and not over it. Judicial behaviour both on and off the Bench- in Court and out of- it has to be impeccable in every sense and should inspire confidence and evoke respect in the Bar and even more among the litigant public. This is of the essence. K.V.Krishnaswami Aiyar's Professional Conduct and Advocacy (Oxford University Press)-lectures delivered more than eight decades ago, contains an illuminating chapter on the judge where he says that it is often ignored that members of the judiciary are equally members of the legal profession. While it is the primary duty of the counsel to be civil and respectful there is also the reciprocal duty on the part of the court. "While Judges ought to be insistent upon the dignity of their office and upon a deferential courtesy in speech and manner, and should properly enforce it, they should not expect from the Bar conduct tantamount to servility; neither should they themselves be haughty and overbearing in manner, nor impatient and inconsiderate in their conduct, nor rude and unapproachable in their relations with the Bar."(p.197).

Hearing in Court is integral to the judicial process. It is both an art and a science. It is strictly not hearing but listening that is required. Listening is hearing with your mind involved in it with attention and concentration. While there should not be many interruptions the judge must be in control. "Patience and gravity of hearing is an essential part of justice; an over speaking judge is no well tuned cymbal," remarked Bacon LC [Essays or Counsels Civil and Moral: 'Of Judicature'] We have the typical case of Jones vs. National Coal Board [1957] 2 QB 55 where the trial judge virtually got into the din and bustle of the trial taking an active part; he talked too much and asked too many questions. While his judgment was overturned in appeal, the judge was advised by the Lord Chancellor to put in his papers which he did at the end of that term. Of course a judge cannot remain absolutely silent and sphinx like. He has to interact. Fali Nariman used to mention of his experience as a young lawyer when in a simple injunction matter the trial judge did not speak a word so that counsel could respond and clarify any doubts. The case was part heard over the weekend and the client said that the judge had been bought over by the opposite side. Fortunately the case went in favour of Mr. Nariman's client. Otherwise the suspicion would have been embedded in the minds for all time. As Lord Eldon LC said truth is best discovered by powerful statements of both sides [Ex parte Lloyd (1822) Mont 70 @ 72n]and Lord Greene MR said justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputation{Yuill vs Yuill [1945] 1 All ER 183}. It is for the advocate to state his case as fairly and strongly as he can without undue interruptions lest the sequence of his argument be lost. - See R vs. Clewer (1953) 37 Cr App Rep 37. But interruptions from the Bench may be of various types. Questioning with a view to elucidate a point or advance the argument of a position is to be welcomed. No one can object to a judge acquainting himself sufficiently with the facts of the case to follow and appreciate the arguments. But the tendency of forming conclusions in some rough forms is not desirable and is to be deprecated. Judges studying papers in detail and confronting counsel does not lead to sound administration of justice. The most eminent characteristics of a judge are 'the duty of patience' and 'the high obligation of courtesy and kindliness'.

The most effective level of listening or active listening is where true communication takes place. The listener is attentive to the words and their contents and searches to fill the gaps in his understanding by asking apposite questions at the appropriate time. A judge is also expected to listen non-judgmentally, that is, to keep an open mind and not make quick judgments. Humility also is a necessary, indispensible quality. It is to be an open minded listening. Among the many qualities one would hope to find in judges, the capacity for open minded listening may be placed near the top of the list. For, important as other qualities are, without the ability to listen with an open mind, the judgment can transform into a process of ex post rationalisation- with their minds already made up, judges produce reasons to support their positions. Listening from the Bench fosters civility and promotes justice. It is also necessary and important that judges concentrate on substance than on form. They are not to be hyper technical. For instance, a case is not to be dismissed for non filing of paper books. That would really be miscarriage of justice, for, paper books are filed to facilitate hearing and disposal of cases and not for adorning the shelves which is what happens until the case is listed for hearing after a long wait. Intellectual honesty is of utmost importance. A judge is expected to note and deal with all the points argued and the cases cited.

Justice Chagla was one of those who approximated to the ideal. He rarely interrupted counsel and whenever he wanted to have a word with his companion judge he would first say 'excuse me' to the arguing counsel. Courtesy and politeness were not a one way street. We also have the example of Justice Murray Coutts Trotter in Madras who after he interrupted counsel, the trend of whose thoughts was broken, apologised and adjourned the case to the following week. That was his generosity. Another instance of judicial graciousness worthy of note is when a senior counsel appearing before Chief Justice Venkatachaliah on a particular occasion raised his voice and was rude and brusque in his behaviour. The urbane judge perhaps lost his temper and said something uncomplimentary. But he immediately retracted and said that justice would be better served if the case was heard the following week and adjourned the matter. The desideratum and substance of all this is that judges should do nothing that they would not like to be done unto them and which they did not like being meted out to them when they were at the Bar.

It is the public belief that justice is served when the process is fair even in the face of an adverse outcome. Archibald Cox in his Court and the Constitution (p.362) insightfully remarks that 'the legitimacy of judicial decrees depends in considerable part on public confidence that the judges are predominantly engaged not in making personal political judgments but in applying a body of law. The respect and support for judicial rulings flow from public confidence that the cases submitted for adjudication are being decided by individuals with open minds as free as humanly possible from political and economic self interest, from the obligations of loyalty to a political party or other organization, and from most forms of ambition. That neither belief is entirely true, even when the ideal is earnestly sought, does not destroy their significance so long as the ideal is sincerely pursued and a critical degree of achievement is present.'

The only footprints that remain on the sands of time and are indeed worth leaving are those that are formed and grow out of a man's character and competence. All outward embellishments are grounded in the weakness of the human nature to which no man of vision and substance attaches importance. We ought not to aspire just to make a living but aspire to make a difference and live a life. It also ought to be remembered that it is not failure but low aim which is a crime. There is more to life than success and more to success than money.

"From compromise and things half done/ Keep me with stern and stubborn pride/ And when at last the fight is won/ God, keep me still unsatisfied."

It is good to remember what one great master, Justice Holmes once wrote to another, Justice Cardozo. "I always thought that not place or power or popularity makes for the success that one desires, but the trembling hope that one has come near an ideal." May this be our motto and our light.

In the ultimate analysis any system will be as good as the men who work it. Professionalism and ethics have to be the guide posts of the men of law whose job is both a science and an art and the attainment of excellence in which is an ideal and a goal demanding stern and exacting tests and not within easy reach, yet for the realization of which there should be ceaseless striving and sustained efforts. To quote Gandhiji, "You must be the change you want to see in the world."

We have to aim at excellence in all that we do. As the Chandogya Upanishad says:

Yadeva vidyaya karoti, shraddhaya, upanishada

Tadeva viryavattaram bhavati-

Whatever is done with vidya (knowledge), shradha (faith and conviction and dedication- the totality of positive attitudes) and upanishad (deep thinking- contemplation) becomes supremely efficient.

Our position and ambition as lawyers and judges cannot be more appropriately summarized than in these beautiful words of Rudyard Kipling which were quoted by the first Chief Justice of India, Justice H. J. Kania at a lawyers conference in Madras:

Grant us the strength that cannot seek

In thought or deed to harm the weak

That under thee we may possess

Man's strength to comfort man's distress.

Our adherence to professionalism will be a fitting memorial to President Rajendra Prasad and others like him and we shall prove ourselves worthy of their great legacy of which we are presently the keepers.

Views are personal.

[Adapted from the author's writing - Professionalism-Bar and Bench in Constitutional Supremacy-A Revisit by the author. The author can be reached at sudhishpai.com]


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