‘There is a practical aspect of the controversy also, which the learned Single Judge should have thought of as he also hails from same fraternity of advocates, prior to His elevation to Bench, which the Advocates, as a professional of the Courts also face and he has to acknowledge the fact that normally in profession these types of minor errors do creep in…’
The Uttarakhand High Court has observed that the courts should refrain and exercise self-restraint in assessing the competence of advocates appearing before it.
Paresh Tripathi, Chief Standing Counsel of the state, had approached the division bench challenging the observations made by the single judge in an order that he is not competent and is incapable to protect the interest of the state.
Some lacunae in the swearing of the affidavit by a government official had triggered the remarks made by the judge against the Chief Standing Counsel. The judge had observed that the Chief Standing Counsel had drafted the counter-affidavit and that as some of the paragraphs of the counter affidavit were sworn on the basis of records that were actually not annexed with the counter affidavit, which were not verified by the Oath Commissioner, it was he who would be required to shoulder the responsibility as the Chief Standing Counsel and he has to be blamed for it.
The division bench comprising Justice Rajiv Sharma and Justice Sharad Kumar Sharma said: “We disagree with the reasons of learned Single Judge for the reason that verification of affidavit is not the responsibility of the counsel who identified that deponent, nor he has any role in the process of verification which is done by the Oath Commissioner, who reads its contents to the person swearing the affidavit and who signs the same after understanding its contents.”
The bench also remarked that the single judge also hails from same fraternity of advocates, prior to his elevation to Bench, and so he has to acknowledge the fact that normally in profession these types of minor errors do creep in.
Courts should refrain and exercise self restraint in assessing the competence of individual Advocate
On remarks made by the judge on his competency, the bench said: “We think that it is not an act, which forms part of dispensation of justice by the Court in making stigmatic remarks against a counsel and recording a finding on the same. As competence always happens to be a variable factor depending from individual to individual and his perception; its interpretation by any judicial finding, at least, of intellect of an advocate ought to be avoided by the Courts, more particularly, when it has an effect of tarnishing his/her professional career and capabilities and becomes an issue of discussion and example to be quoted by the rival aspirants for the post, who may derive to take advantage out of it, as these posts are political appointments depending upon pleasure and displeasure. Even if it is assumed for a moment that the Court can do it since it is a finding pertaining to the capability of a particular counsel, the Court ought to have issued a show- cause notice to enable the counsel against whom the observations are made to have a say in the matter, if any lacuna existed.”
It further observed: “We also think that having pondered a lot that even we as Judges are not expected to act as an expert to assess the individual competence of an Advocate in the absence of any expertise, as it may at times such assessment be influenced by personal bias of a Judge towards an individual, as reflected herein, which has chanced recurringly in number of cases against the appellant. Apart from it, Judges too, are human being, they are atleast not devised with self installed mechanism which can detect and measure the competence of an individual as it is always dependent ones own capacity to assess, because a person can be a perfect professional for one person, and may not be so far the other. Hence, we hold that at least the Courts should refrain and exercise self restraint in assessing the competence of individual Advocate and that too reflecting the same in his judicial verdicts / orders and obviously when it will mar and tarnish his professional career.”
The courts have got no role to advice a client
Setting aside other directions issued by the single judge, the bench said: “Relationship between a client and his counsel has been termed to be a contractual relationship which binds them only. It is always the choice of a litigant to choose his counsel and the said choice of the litigant is dependent upon his wisdom to assess the capability of his counsel and if he chooses an incapable counsel, it is the litigant, who has to be blamed and who has to face the consequences. At least the Courts have got no role to advice a client, which in the instant case happens to be the State Government to take action against his counsel, which in the instant case happens to be the Chief Standing Counsel to take an action against him and do the needful.”