DUTY OF LAWYERS AS OFFICER OF COURT NOT SIMPLY MOUTHPIECE OR SPOKEPERSON OF HIS CLIENT – court and counsel are two wheels of the chariot of justice- counsels need to be more care full and duty full in system of delivery of justice.

[CA DEV KUMAR KOTHARI]

2019 (5) TMI 1219 - SUPREME COURT -  LAL BAHADUR GAUTAM VERSUS STATE OF U.P. AND OTHERS CIVIL APPEAL NO(s). 4794 OF 2019  Dated: - 08 May 2019 this was against the judgment

Lal Bahadur Gautam Versus State Of U.P. And 4 Ors. - 2017 (5) TMI 1677 - ALLAHABAD HIGH COURT

Other judgments referred and considered:

State of Punjab & Anr. Versus Brijeshwar Singh Chahal & Anr. & Pardeep Kumar Rapria - 2016 (3) TMI 1102 - Supreme Court

State of Rajasthan and anr. Versus Surendra Mohnot and others - 2014 (6) TMI 983 - Supreme Court

      DP. Chadha Versus Triyugi Narain Mishra - 2000 (12) TMI 836 - Supreme Court

   EXECUTIVE COMMITTEE OF VAISH DEGREE COLLEGE SHAMLI Versus LAKSHMI NARAIN - 1975 (12) TMI 173 - Supreme Court

Relevant important laws which were under consideration / applicable:

The Advocates Act, 1961.

The Bar Council Of India Rules formulated under The Advocates Act, 1961.

 The Uttar Pradesh State Universities Act, 1973 

University Regulations.

The Agra Universities Act of 1926.

Scope of this write-up:

In this article issues involved in appeal are not discussed as they are not much relevant to various subject matters of this website namely direct and indirect tax laws and corporate laws. The scope of the article is restricted to aspect of duty of advocates while appearing in courts to represent his client.

Scope of this article is regarding duty of Advocate / counsels appearing before Courts, as an officer of Court to assist the Court in understanding of facts and applicable law so as to render justice. Advocate appearing is not simply representing his client so as to work as a mouth piece of client only for interest of client and own interest of Advocate.

Advocate is also an officer of court and has a duty to the Court to assist the court in delivery of justice.  In fact, as per law, advocate appearing before the Court has to represent in a manner that justice is done by the Court. When advocates of two or more parties are appearing, they have role for their clients as well as to the court in process of rendering justice. Therefore, advocates should not act in a manner that can mislead the court and he should not be negligent while performing his duties towards his client and also towards the court. In other words, Advocate must act in such a manner that court is able to render justice.

This is one of distinctions between an advocate and other professional like CA, CS and CMA which is in many situations, considered in the matter of levy and / or collection procedure of service tax / GST.

On aspect of duty of Advocate towards the court, client and opposite party the discussions are found from paragraph 10 of the judgment. These are analysed and summarised below by way of highlighting:

             10. Before parting with the order, we are constrained to observe regarding the manner of assistance rendered to us on behalf of the respondent management of the private college. Notwithstanding the easy access to information technology for research today, as compared to the plethora of legal Digests which had to be studied earlier, reliance was placed upon a judgment based on an expressly repealed Act by the present Act, akin to relying on an overruled judgment. This has only resulted in a waste of judicial time of the Court, coupled with an onerous duty on the judges to do the necessary research. We would not be completely wrong in opining that though it may be negligence also, but the consequences could have been fatal by misleading the Court leading to an erroneous judgment.

       11. Simply, failure in that duty is a wrong against the justice delivery system in the country. Considering that over the years, responsibility and care on this score has shown a decline, and so despite the fact that justice is so important for the Society, it is time that we took note of the problem, and considered such steps to remedy the problem. We reiterate the duty of the parties and their Counsel, at all levels, to double check and verify before making any presentation to the Court. The message must be sent out that everyone has to be responsible and careful in what they present to the Court. Time has come for these issues to be considered so that the citizen’s faith in the justice system is not lost. It is also for the Courts at all levels to consider whether a particular presentation by a party or conduct by a party has occasioned unnecessary waste of court time, and if that be so, pass appropriate orders in that regard. After all court time is to be utilized for justice delivery and in the adversarial system, is not a licence for waste.

12. As a responsible officer of the Court and an important adjunct of the administration of justice, the lawyer undoubtedly owes a duty to the Court as well as to the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouthpiece of his client as observed in State of Punjab & Ors. vs. Brijeshwar Singh Chahal & Ors., (2016) 6 SCC 1: = 2016 (3) TMI 1102 - SUPREME COURT “

“34.…relationship between the lawyer and his client is one of trust and confidence. As 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 to the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as mouthpiece of his client…..”

13. The observations with regard to the duty of a counsel and the high degree of fairness and probity required was noticed in D.P. Chadha vs. Triyugi Narain Mishra and others, (2001) 2 SCC 221= 2000 (12) TMI 836 - SUPREME COURT : “

22. A mere error of judgment or expression of a reasonable opinion or taking a stand on a doubtful or debatable issue of law is not a misconduct; the term takes its colour from the underlying intention. But at the same time misconduct is not necessarily something involving moral turpitude. It is a relative term to be construed by reference to the subject matter and the context wherein the term is called upon to be employed. A lawyer in discharging his professional assignment has a duty to his client, a duty to his opponent, a duty to the court, a duty to the society at large and a duty to himself. It needs a high degree of probity and poise to strike a balance and arrive at the place of righteous stand, more so, when there are conflicting claims. While discharging duty to the court, a lawyer should never knowingly be a party to any deception, design or fraud. While placing the law before the court a lawyer is at liberty to put forth a proposition and canvass the same to the best of his wits and ability so as to persuade an exposition which would serve the interest of his client so long as the issue is capable of that resolution by adopting a process of reasoning. However, a point of law well settled or admitting of no controversy must not be dragged into doubt solely with a view to confuse or mislead the Judge and thereby gaining an undue advantage to the client to which he may not be entitled. Such conduct of an advocate becomes worse when a view of the law canvassed by him is not only unsupportable in law but if accepted would damage the interest of the client and confer an illegitimate advantage on the opponent. In such a situation the wrong of the intention and impropriety of the conduct is more than apparent. Professional misconduct is grave when it consists of betraying the confidence of a client and is gravest when it is a deliberate attempt at misleading the court or an attempt at practicing deception or fraud on the court. The client places his faith and fortune in the hands of the counsel for the purpose of that case; the court places its confidence in the counsel in case after case and day after day. A client dissatisfied with his counsel may change him but the same is not with the court. And so the bondage of trust between the court and the counsel admits of no breaking.

xxx xxx xxx

24. It has been a saying as old as the profession itself that the court and counsel are two wheels of the chariot of justice. In the adversarial system, it will be more appropriate to say that while the Judge holds the reigns, the two opponent counsel are the wheels of the chariot. While the direction of the movement is controlled by the Judge holding the reigns, the movement itself is facilitated by the wheels without which the chariot of justice may not move and may even collapse. Mutual confidence in the discharge of duties and cordial relations between Bench and Bar smoothen the movement of the chariot. As responsible officers of the court, as they are called – and rightly, the counsel have an overall obligation of assisting the courts in a just and proper manner in the just and proper administration of justice. Zeal and enthusiasm are the traits of success in profession but overzealousness and misguided enthusiasm have no place in the personality of a professional.

xxx xxx xxx

26. A lawyer must not hesitate in telling the court the correct position of law when it is undisputed and admits of no exception. A view of the law settled by the ruling of a superior court or a binding precedent even if it does not serve the cause of his client, must be brought to the notice of court unhesitatingly. This obligation of a counsel flows from the confidence reposed by the court in the counsel appearing for any of the two sides. A counsel, being an officer of court, shall apprise the Judge with the correct position of law whether for or against either party.”

14. That a higher responsibility goes upon a lawyer representing an institution was noticed in State of Rajasthan and another vs. Surendra Mohnot and others, (2014) 14 SCC 77 = 2014 (6) TMI 983 - SUPREME COURT : “

33. As far as the counsel for the State is concerned, it can be decidedly stated that he has a high responsibility. A counsel who represents the State is required to state the facts in a correct and honest manner. He has to discharge his duty with immense responsibility and each of his action has to be sensible. He is expected to have higher standard of conduct. He has a special duty towards the court in rendering assistance. It is because he has access to the public records and is also obliged to protect the public interest. That apart, he has a moral responsibility to the court. When these values corrode, one can say “things fall apart”. He should always remind himself that an advocate, while not being insensible to ambition and achievement, should feel the sense of ethicality and nobility of the legal profession in his bones. We hope, that there would be response towards duty; the hallowed and honoured duty.”

Unquote:

From above discussions and observations we can say that an advocate appearing before Courts has duty to his client and to the court and also to the opposite party. He has to be fair in a manner that justice is achieved. While appearing for governments and public institutions there is higher duty , responsibility  for the purpose of justice because public interest is also involved.

However, ground realities are different. Advocates are generally  found to be more sensible and ambitious to achievements , greedy for name and fame and income then to the purpose of justice. This is reason that many cases are filed, on advice of counsels, on behalf of government also on totally wrong footing and just to create litigation. It is noticed that in many cases even before the honourable Supreme Court appeals on behalf of revenue have been filed which should not have been filed at all because the matter was on facts or legal position was well settled.

In many cases appeals filed by revenue should have been withdrawn as the law is settled or as per administrative policy of government to reduce litigation on smaller matters. However, Advocates rarely advise the client to withdraw such appeals rather they prefer to appear with large team of juniors and the  court point out that the appeal is not maintainable. This is only because the advocates want to linger matters due to greed.

As per experience of author, his clients, friends and relatives feeling developed is that courts are to help dishonest people. This is because between honest and reasonable people usually there are no disputes and differences which cannot be settled by mutual discussion and a bit of sacrifice or adjustment and thus litigation is avoided.  However, when a party is dishonest, he is also unreasonable. In such situation, the honest party is forced to indulge into litigation. Tax cases are mainly because of unreasonable stands taken by revenue authorities. When assesse is forced to indulge into litigation due to wrong and unreasonable additions made and demands raised, then assesse also decide to carry litigation on other issues also to seek further relief. If tax authorities take reasonable and legal view and pass reasonable orders, then litigation will be reduced.

Tax litigation: as per experience, because of forced litigation imposed by tax authorities on tax payer, tax payer also take a view that when he has to face litigation, why he should not take chance on issues where there is some chance of getting relief. Therefore, many claims made by taxpayers, which he could forego or deferred to subsequent years, he carry litigation to get claim preponed. For example deductions u/s 40a. ia and 43B, deduction of higher depreciation , claims for stock adjustments etc. it is experienced that when a scrutiny assessment is made and the AO made unreasonable additions the assesse also preferred or pressed new claims, enhanced claims or additional claims. Experience also shows that in such cases ultimately assessed income was less than income disclosed in Return of Income (ROI) because some claims got preponed deductions which assesse had thought to claim in subsequent years and some additional claims made were allowed in due course of appeal etc.

Therefore, in interest of ease of life and administration it is necessary that everyone should take honest and reasonable view and should try to avoid litigation. A major part of litigation is by or against government or government institutions. This is because government authorities take unreasonable view. Unless taxpayer contest high pitched demands raised by government authorities the taxpayer may not be able to survive.

Hope from NAMO 2 government:

It is expected that the new government will make reasonable law, and try to reduce highhandedness of government authorities at operational and administrative levels. Due to lack of unaccountability of such authorities against illegal and unreasonable actions or inaction corruption is continuing and public is feeling harassed in many situations when human involvement in administration is involved and  illegal, unjust and unreasonable orders are passed.