DB accepts oral & written undertakings of Advocates, discharges notices of contempt

STATE TIMES NEWS

JAMMU: A Division Bench of Jammu & Kashmir and Ladakh High Court comprising Chief Justice Ali Mohammad Magrey and Justice M A Chowdhary accepted oral and written undertakings of Advocates and discharged notices of contempt issued against them by the Court in 2019 when Advocates were on indefinite strike.
The Bench, while disposing of PIL, appreciated role an Advocate plays in the society. The development of Lawyers as a class of professionals can be attributed to the need for trained persons who can form the competent interface to facilitate the interaction between the lay persons and the judiciary. It involves providing legal advice in matters of rights, liberties or property of the client within the framework of legislative and legal rights, and representing the client in the event of a dispute before an adjudicatory body. In fact, if law is viewed as a ‘public good’ which is frequently technical and not self-executing, meaningful access to law requires the assistance of a Lawyer. Particularly, in most jurisdictions, the members of the legal profession are conferred the status of privileged members of the community, and occupies an exclusive domain with the privilege of pleading and acting on behalf of suitors being restricted only to enrolled advocates and attorneys. This monopolistic character of the legal profession entails certain high traditions which its members are expected to upkeep and uphold. Therefore, the Lawyer plays an indispensible role in the mechanism of administration of justice. However, the Lawyer has a particularly onerous and multi-dimensional role to fulfill. The role of the Advocate requires a closer scrutiny. The Lawyer, as a professional, to some extent, acts on behalf of the client, and representing the client. This is particularly relevant in an adversarial system of adjudication followed by common law countries which is characterized by a neutral adjudicating authority, which, on the basis of the arguments and evidence placed before it, arrives at a conclusion. The role of an Advocate in an adversarial system, therefore, is to represent the case of the client before the adjudicating authority. As a professional, the functional role of an Advocate, in essence, is comparable to that of a legal technician. An Advocate is specially trained in the technical profession of ‘law’, and with his grasp over the subject matter; professional function consists largely of providing counsel for clients about how to escape or mitigate the incidence of the law’s obligations, availing of the loopholes and the ambiguities of law. Furthermore, being a responsible officer of the Court and an important adjunct of the administration of justice, the Lawyer also owes a duty to the court as well as the opposite side. The Bar and the Bench constitutes the two wheels of the carriage of justice. The success of the judicial process often depends on the services of the legal profession. The function of both the Bar and the Bench in an adversarial system of dispute resolution are clearly made out, and the need for a dynamic relationship of co-operation between the two is acute. Advocates, as members of the Bar and officers of the Court, have the responsibility of ‘keeping the stream of justice pure and unsullied’ so also to enable it to administer justice fairly and to the satisfaction of all concerned. This involves two aspects – firstly, to uphold the dignity of the judicial office and maintain a respectful attitude towards the Court, and secondly, to ensure that under no circumstance, any illegal or improper means is used to mislead the Court. The primary duty of the Lawyer is to inform the Court as to the law and facts of the case and to aid the Court to do justice by arriving at correct conclusion. Since, the Court act on the basis of what is presented by the Advocates, the Advocates are under the obligation to be absolutely fair to the Court. All statements should be accurate, and the Advocate is under a sacrosanct obligation to ensure that he does not, through any act or omission lead to the possibility of misrepresentation, or mislead the Court or obfuscate the case in any manner. As observed, the Advocate owes a duty to his client in the capacity of a professional, and towards the Court in the capacity of an officer and the friend of the Court. However, this may and often does lead to a conflict. In cases of conflict, as far as possible, the Advocate tries to balance his competing obligations. However, where the conflict is irreconcilable, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public.
DB further observed that it can be said that the Lawyer is indeed the channel through which the general public can access the law, and avail of the protection of the law, in the shrine of justice. In the light of the above detailed analysis and discussion made hereinabove, DB observed that the Advocates against whom the contempt proceedings are initiated shall ensure adherence to their unique role in administration of justice as detailed out in several judicial pronouncement, taken note of in this order and the undertakings with reference to maintaining dignity, honour and respect of the Court at all times and not causing any obstruction shall also form the basis for discharging of the rule. DB further observed that additionally, the basis for dropping the proceedings has reference to submissions made by senior Bar members and President of the Bar Association and Advocate General.