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Is the Bar Council of India justified in criticizing Lawyers and Retd.Judges for expressing views on working of the Apex Court during COVID-19?

This article is in context to the press release dated May 30, 2020 by the Bar Council of India (BCI) chairman Mr. M.K. Mishra Senior Advocate highlighting the attack by disgruntled lawyers, unhappy former judges on the Supreme Court of India as a conspiracy to browbeat the institution.

After reading the press release as issued by the BCI and the article published in Bar and Bench on the same date, as transpired, it seems BCI is unhappy over the manner few lawyers and a retired Supreme Court Judge, are attacking, in a synchronized manner, the Apex Court in a conspiracy to browbeat the institution. It further transpires that the said attacks are unscrupulous and BCI would ensure that the judiciary is not weakened in the face of these attacks.

I am too junior in age and in status too, to comment upon such observations of BCI. But would mention few experts from Indian and foreign luminaries upon judicial transparency in a democratic set up, in context to the issue in question. And, then let the BCI and esteem Judiciary of our country decide how far is BCI or these unscrupulous attacks justified. Ironically on one hand the press release states that Apex Court is helpless in defending itself and on the other hand it says the Hon'ble Supreme Court can issue contempt notice against such persons.
Since it has become a trend to rely upon foreign judgments and foreign legal experts, I start by quoting David Pannic Q.C from his famous book: Judges.

Unless and until we treat judges as fallible human beings whose official conduct is subject to the same critical analysis as that of other organs of government, the judges will remain members of a priesthood who have great powers over the rest of the community, but who are otherwise isolated from them.

Justice Felix Frankfurter, Of U.S. Supreme Court sharply expressed:
Judges commonly are elderly men, and are more likely to hate at sight any analysis to which they are not accustomed, and which disturbs repose of mind, than to fall in love with novelties. He further adds, Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with interests of justice they may forget their common human frailties.

Lord Justice Scrutton, in an address delivered to the University of Cambridge law Society, observed:
 The habits you are trained in, the people with whom you mix, lead to your having class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgments as you would wish. This is one of the greatest difficulties at present with Labour.

Labour says:
Where are impartial judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or trade unionist get impartial justice? It is very difficult sometimes to be sure that you have put yourself into thoroughly impartial position between two disputants, one of your own class and one not of your own class.

Judge Jerome Frank (Courts on Trial), as quoted by David Pannick in his book Judges says:
The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.

Justice Krishna Iyer, in his book Off the Bench has observed:
The Indian judiciary is not beyond criticism and, indeed, must suffer scrutiny so that progressive reforms in the exercise of Judge Power may be accomplished.

He further adds that Indian Supreme Court vests with supreme powers as granted to it by the Constitution. Articles 141, 142 and 144 make the court at the apex supreme. The High Courts, what with article 226, also enjoy considerable power over the executive and legislature.

Hence from the above observations it is apparent that people of India expect judges armed with such vast powers to adhere to the prime objective of the Indian Constitution, i.e., To protect their rights and Liberties.

And to achieve such goals, if a common man or a lawyer or a retired judge expects the sitting judges, using such extraordinary powers, against the executive and legislature, which prima facie have failed to protect Right of Life of millions and take suo motu cognizance of the miseries faced by the citizens in wake of mishandling of the situation by the other two arms of government, I don't think they have committed any wrong to have drawn such harsh response from the BCI.

While dealing with criticism against the judges, Lord Denning, in his book:
What next in the law:

There remains, misuse of power has mentioned:
It is the right of every man, in the parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice.

They can say that we are mistaken and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.

This observation of Lord Denning, if understood, should be sufficient for the BCI to hold its guns.
The Bar and Bench article further says that The BCI concludes that indulgence of the former members of judiciary in making comments critical of the institution is unfortunate and suggests that these judges are disgruntled for not having secured a plum posting or desired berth after superannuation which left the bitter.

Directly coming to the point I quote an expert from Justice Krishna Iyer's book Off the Bench as under:
Justice Fazal Ali retired in May 1952. He had made his mark as a very able Judge of the Federal and Supreme Courts... Just before he retired, however it was announced that he was to be appointed Governor of Assam.

The appointment rightly invited considerable comment.... But a question of constitutional propriety was raised: whether a Judge of the Supreme Court should be appointed the executive head of the state. The separation of judiciary and the executive at all levels was an old and healthy demand which had been widely accepted and given effect to in many parts of the country.

Was not the appointment of a Supreme Court Judge to a Governorship a clear negation of that principle? I thought there would be only one answer. Such appointments were also bound to impair the independence of highest judiciary....

This practice, full of danger to the independence of the judiciary, has, unfortunately, been followed on some later occasions by appointing sitting judges to executive offices.

Just one question to my respected friends and seniors holding BCI office. Are we, lawyers, as a community a party to such offers being made and accepted between sitting judges and the Government of India?

I rest my case here.

Written By: Sanjay Manchanda Advocate (D-781/90)

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