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Accountability of Lawyers

Accountability of Lawyers

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03/18/2014

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ACCOUNTABILITY OF THE LAWYERS AND CONTEMPT PROCEEDINGS
\u201cI am unjust, but I can strive for justice,

My life\u2019s unkind, but I can vote for kindness.
I, the un-loving, say life should be lovely,
I, that am blind, cry against my blindness\u201d.

We, the lawyers are still like cavemen with our back turn to light watching the shadow of the wall. There is an iron cage, not having any ventilation and people are living in the state of suffocation, virtually on the verge of their death point. There is a complete apathy of the custodian of the power towards their welfare and in our country "We, the people" who are regarded to be the sovereign of the nation are living a life full of abrogation and subjugation.

I seldom consider that whether it is worthwhile to shout a voice and thereby invite some lighter sleeper to suffer the agony of the death and this purpose achieved through my writing may serve some purpose. Since the daylight shallow the darkness, I have written articles to take the intellectual from apathetically approach towards rectification of prevailing maladies as to wake up. The politicians have imposed mindless socialism, which held in thrall the peoples endeavour and enterprise resulting in transfer of potential from the honest benevolent to the dishonest opportunist.

We are now slave of destructive elements and foreign ambitions. Politicians act in nefarious designs with impunity. Political parties motivated with vested interests are dancing to usurp power through any means, fair or foul even at the cost of sacrificing the Nation\u2019s existence to personal interest. Party systems have pushed to advance its own schemes upon the ruin of the rest. Our politicians are Mafia dons next to the invaders. Robbers have generally plundered the rich who are seldom subjected to legislation always plunder the common citizens and protect those Mafia dons under the phraseology of \u201claw making sovereign power\u201d having the connotation \u201cprocedure establish under law to be cherished instead of due process\u201d.

There is always an excuse for tyranny and mal-administration, which has degenerated the national character. The power given needs a safeguard from such arbitrary power and unfair exercise. In present set up freedom has become an abuse and liberty as licence. Therefore the moral damage is more terrible. An oppressive system is more to be feared than a Tiger.

Deep needs to express thought;
Profoundly sickening to compel;
Remain silent at expression;
Limitation of freedom of thought;
Is attack on social rights;
As spiritual force is stronger;
Than any material force;
As thought leash to average conscience;
By the necessities of fatal policy;

Time is free-fold present,: as we experience it, the past, as the present memory and future, as a present expectation .The expectations can not be the same and as anticipation. It is different from a wish, a desire or a hope nor can it amount to claim or demand on ground of a right. A pious hope even leading to a moral obligation can not amount to a legitimate expectation in the strict sense. The protection of such legitimate expectation does not require the fulfillment of the expectation where an over riding public interests require otherwise. Thus even if substantive production of such expectation is contemplated that does not grant and absolute right to a particular person. the protection is limited to the extent of judicial review. To strike down the expectation of an individual adrift to the pragmatism. Thus millions of people belonging to the deprived and venerable section of the humanity were looking to the courts for improving their life conditions and making back human rights meaningful for them.

The Hon\u2019ble Supreme Court acted as an instrument of status quo-upholding the traditions of Anglo-Saxon jurisprudence and resisting radical innovations in the use of the judicial power to promote social justice under the republican constitution till early 1970 with some Hon\u2019ble expectations, but in the light of a social economic philosophy alien to our freedom movement and aspiration of the liberated people, the Apex Court has started a giving importance to the rule of Law with \u201ctryst with destiny\u201d. The outstanding judicial activism in the quest for social justice came by the enormous contribution of Hon\u2019ble Supreme Court in the recent years. The use of new found judicial power in the service of \u201cWE THE PEOPLE OF INDIA\u201d who has often being represented in the judicial forum have always been at the receiving end of mal-administration and exploitation.

There is a most vital question, which is require to be dealt with by the lawyers that since there is nothing in the legislation against an officer passing an illegal and absurd order with malafide intention in due discharge of his duty, contrary to the purposes, for which the duty is so enshrined to him and for distant extraneous consideration. What Remains with the party affected by such a reprehensible conduct, except to approach the Hon\u2019ble court, which is only assigned with power to rectify the error of law. This has provided the burden upon the courts to conduct the administrative functioning in absence of legal acumen \u2013ship with the officials discharging official function of Quasi-Judicial Nature.

Thus the participation of lawyers are required in legislative functioning as well in the Executive side by given them the representation in parliament and legislative assemblies as well as law officers in every departments. There is only one individual Fundamental Right in chapter III of our constitution with some collective fundamental Rights, i.e. Article 19 and Articles 25 in our constitution of India. Unfortunately we have completely forgotten the restriction impose for entertaining the Writs under Sub Articles 2 to 6 of Article 19 in our constitution while filing and entertaining the writ petition. However, notwithstanding , when the Judiciary at the Apex level found that the Government has now failed to discharge the duty castled upon it, then the other articles couched in negative language were required to be interpreted in the positive dimensions.

This is the reason of excessive burden upon the lawyers and ultimately upon the Hon\u2019ble Courts. It has always being considered with due respects that the lawyers are playing the role of the mothers by provided their valuable assistance in administration of the Justice to the Society and for this Purposes, Hon\u2019ble Judges of High courts and Supreme Court are called as Hon\u2019ble Justices and not by the name of the Judges, like that of the Subordinate Courts in the hierarchy of Judicial institution. If we have the strict enforcement of the power given in our constitution, there will be hardly some cases, which we may deem to be strictly amenable within the jurisdiction conferred under article 226 of the constitution of India.

It will be instructive to sun up this discourse with the observation of Hon\u2019ble Chief Justice Bhagwati in Sukh Das. \u201cIt is common knowledge that 70 percent of the people living in rural areas are illiterate and even more than that percentage of the people are not aware of the rights conferred upon them by law. Even literate people do not know what are their rights and entitlements under the law. It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land. Their legal needs always stand to become crisis-oriented because their ignorance prevents them from anticipating legal troubles and approaching a lawyer for consultation and advice in time and their poverty magnifies the impact of the legal trouble and difficulties when they come. More over, because of their ignorance and illiteracy, they cannot become self-reliant; they cannot even help themselves. The law ceases to be their protector because they do not know that they are entitled to the protection of the law and they can avail of the legal service programme for putting an end to their exploitation and winning their rights. The result is that poverty becomes with them a condition of total helplessness. This miserable condition in which the poor find themselves can be added to situations\u201d (1986) 2 SCC 401).

Accountability of a lawyer has been fixed in three dimensions picture. There has been the accountability of the lawyer toward the litigants, as the professional ethics. Simultaneously, there is also a accountability towards the court to maintain the esteem of justice by providing a valuable assistance, while the Hon\u2019ble courts are busy in delivering of the judgement. The foremost and the most important duty and liability of the lawyer is towards providing the legal rights to the public at large, which is seldom discharged by them. Amongst these three liabilities, the former duty is associated in the daily activities for which there have been the provisions under the Advocate\u2019s Act and the Evidence Act.

Except by creating legal awareness amongst the poor, which is the foremost
requirement; that is why it has always been recognised as one of

the principal items of the programme of the legal aid movement in the country to promote legal literacy. It would in these circumstances make a mockery of legal aid it were to be left to a poor, ignorant and illiterate accused to ask for free legal service. This is the reason why the Hon\u2019ble Court has ruled in Khatri II case that the Magistrate nor the sessions judge before whom an accused appears must be held to be under an obligations to inform the accuses that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the state.

The Hon\u2019ble Court also gave a general direction to every State in the Country to make provision for grant of free legal services to an accused who is unable to engage to a lawyer on account of reasons such as poverty, indigence or incommunicado situations (1986 2 SCC 401).

In the judges Transfer Case, Hon\u2019ble justice Bhagwati declared that law in the following terms: where a legal wrong or a legal injury in caused to a person of violation of any constitutional or legal right\u2026 and such person or determinate class of persons is by

reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in the Supreme Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. (1981) Supp. SCC 87).

The Hon\u2019ble courts are also supposed to call the Advocates for their assistance with due respect in discharge of duty pertaining to the responsibility of the lawyers by calling for their proper assistance. Simultaneously a question arises that how far having their reciprocal obligations upon the party, who has imposed the liability and responsibility assigned to the lawyers, is discharging these accountabilities. Thus, it is the foremost requirement, that the Advocate should have been respected with the equal respect, which the courts may realise to be given to them for proper maintenance of the esteem for administration of justice. This is a dedicate balance, which is necessarily to carry forward like the cart by having propounding balance upon both side of wheel to be dealt with. Unfortunately, there is a gradual decline in the standard to maintain the aforesaid yard stick being controlled and maintained from all the three sides in our Judicial System

The main reasons for the aforesaid decline is the burden of the litigation, where the expectations of the litigants are having their natural desire to get the prompt justice. The delay in disposal of the cases on account of the cumulative pressure exerted from all the corner upon the functioning of the court for dealing with the variety of the litigation by inadequate strength of the Hon\u2019ble Court is one of the most prominent cause for disrupting the noble profession of the lawyer. The Hon\u2019ble Supreme Court on number of the occasion has highlighted the necessity for maintaining the cordial relationship between the bar and bench. The legal ethics associated with the obligations being discharged in this regard has also to be respected and safeguarded by the active co-operation of the lawyers. The intentions to interfere with administration of justice and the aspersions with disparaging remarks on the functioning of the courts, has now been considered sufficient for committing the contempt of the court.

Let us examine the delicate issue on the question of the accountability of the lawyer and the initiations of the contempt proceedings and the power there of conferred upon the Hon'ble courts and the subordinate courts . The advocacy is not a craft, nor it is a trade or business but it is a calling for fighting against the injustice committed upon the individual who is coming for being rescued under the administration of the justice by propounding the cause through the lawyer for getting the proper remedial treatment but if on account of the compulsions of the surrounding circumstances, the matter is not heard finally then the accountability even for non disposal of the cases by the Hon\u2019ble court is shifted upon the shoulders of the lawyer.

Thus the lawyer in present situation is acting like the shock absorber between the litigant and the Hon\u2019ble court and mental agony to the lawyer is quite proportionate than that of the burden upon the Hon\u2019ble courts to deliver the prompt justice. Thus there is seldom a misbalance visualized for maintaining the cordial equilibrium which is supposed to be carried out by harmonious functioning for moving forward the cart of the justice. This aspect of the picture has now being over-looked by the Lawyers and at some instances by the Hon\u2019ble courts, while exercising the power of contempt against the lawyer. The accountability of the lawyer is there but unfortunately there is no accountability fixed in respect of the functioning of the Hon\u2019ble court by our Constitution. The speaking of truth is also contempt. If it is meant for disparaging the sanctity of the court. Thus it has even to discuss with introspection and cautions.

All the members of the court are considered as wounded, where justice is found wounded with inequity, and judges do not extract the dart of inequity from justice or remove its blot and destroy inequity, in other words where the innocent are not respected and the criminal are not punished.

A virtuous and just person should never enter a court and when he does so, he should speak the truth; he who holds his tongue on seeing injustice done, or speaks contrary to truth and justice, is the greatest sinner.

Justice destroyed destroys its destroyer; and justice preserved, preserves its
preserver. Hence, never destroy justice, lest being destroyed, it should destroy thee.

In this world justice or righteousness alone is man\u2019s friend that goes with him after death. All other things or companions part on the destruction of the body and he is detached from all company. But the company of justice is never cut off.

When injustice is done in the government court out of partiality, it is divided into four parts of which one is shared by the criminal or doer of injustice, the second by the witness, the third by the judges, and the fourth by the president king of an unjust court.

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