The Bar and the Bench are considered the two wheels of a chariot that play a role in administering the law. Both are subordinate to and interrelated to one another in their respective roles. In law, the term “Bar-Bench relationship” pertains to the friendly relationship that advocates have with judges.
The Bar (advocates) and the Bench (judges) both play critical roles in the administration of justice. Maintaining cordial relations between the Bench and the Bar requires respect and understanding on both sides of the bar and bench. Administration of justice is not something that concerns the Bench only. It concerns the Bar as well. Mutual respect is necessary for the maintenance of cordial relations between the Bar and the Bench. Advocates and judges are complementary to each other. The bar is the principal ground for recruiting judges. So they both belong to the same community. But on account of the nature of duties to be discharged by advocates and judges, they may get into dialogue, sometimes humorous, sometimes heated, and sometimes harsh.
The law of contempt has been enacted to secure public respect and confidence in the judicial process. If such confidence is shaken or broken, the confidence of the common man in the institution of the judiciary and democratic setup is likely to be eroded which, if not checked, is sure to be disastrous for society. It is settled law that contempt jurisdiction is discretionary jurisdiction.
In other words, a judge is not bound to take action even if contempt of court has indeed been committed. To whom much is given, much will be required. Indian Supreme Court Justices RV Raveendran and Lokeshwara Singh Panta opined that “Judges, like everyone else, will have to earn respect. The court should not readily infer an intention to scandalise courts or lower the authority of courts unless such intention is established.”
The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. The discipline of law must be followed but at the same time, it must be kept in mind that the jurisdiction to punish for contempt touches upon two important fundamental rights of the citizens, namely, the right to personal liberty and the right to freedom of expression.
This is the cause for which it is said that contempt law should be most jealously and carefully applied and the power is to be prudently exercised with the greatest reluctance and if, after taking into account all the circumstances the Court finds contempt of Court beyond condonable limits, then strong arm of the law must be used in the name of the public interest and public justice. According to Lord Atkin, “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
If someone commits contempt of court he should be provided an opportunity right to a fair trial which is guaranteed under Article 10-A of the Constitution of Pakistan 1973 and the concept of due process has always maintained a special place for itself in our jurisprudence, and with the insertion of Article 10-A in the 1973 Constitution of Pakistan.
We have two provisions in our Constitution, Article 19 which gives citizens freedom of speech, and Article 204 which give the Supreme Court and High Court the power of contempt. Since Article 19 is the right of the people who are supreme in a democracy, while Article 204 is the powers of judges, who are servants of the people, the reconciliation can only be done by holding that freedom of speech is primary, while the contempt power is only secondary.
“If someone calls a judge a fool inside the courtroom and goes away, in my opinion, it is not contempt, for he has not stopped the functioning of the court. But if he keeps shouting in court the whole day, and despite warnings does not stop, he is not letting the court function, and this would be contempt. After all, disputes in society have to be adjudicated, and judges must decide cases to justify payment of salaries to them.” — Justice (r) Markandey Katju.
The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. The discipline of law must be followed but at the same time, it must be kept in mind that the jurisdiction to punish for contempt touches upon two important fundamental rights of the citizens, namely, the right to personal liberty and the right to freedom of expression.
In a democracy, there is no need for judges to vindicate their authority or display pomp and majesty. Their authority comes not from fear of contempt but from public confidence, and this in turn depends on their conduct, integrity, impartiality, and learning.
For proper workability of the legal system, it is imperative for both the Bar and Bench to strictly adhere to their respective codes of conduct, because no one is above the law. “… For safe administration of justice, the Bench and Bar, both should have to discharge their duties vigilantly and strictly under the law.”
Delays in clearing court cases are a serious challenge in Pakistan. There are 1.5 million pending cases and 2.6 million new cases were filed in our courts in the year 2010.
In 2021, it increased to 2.2 million pending cases and 38.5 million new cases. Both Bar and Bench have to play their roles and without Bar (Lawyers) appreciation and willingness to move forward, no transformation can take place in the system.Bar councils, thus, must support the judiciary to reform our justice system.
Without cordial relations between Bar and Bench, a peaceful atmosphere could not be created, there should be mutual respect between the bar and bench so mutual harmony could prevail and nobody should suffer.
Shahrukh Mehboob
The writer is Legal Practitioner and columnist. He tweets @ legal_bias and can be reached at shahrukh mehboob4@ gmail.com