Judges should exercise restraint and avoid unnecessary remarks against conduct of the counsel: SC orders expunging adverse remarks against advocate with 17 yrs of standing at the Bar

Supreme Court: A Division Bench of R.F. Nariman and Hrishikesh Roy, JJ. directed that adverse comments recorded against the appellant─advocate in certain judgments of the Uttaranchal High Court be recalled. The Supreme Court found that the offending remarks were unnecessary for deciding the disputes and appeared to be based on personal perception of the Presiding Judge. The requisite degree of restraint and sobriety expected in such situations was also found missing in the offending remarks.

Facts and Appeal

The appellant was a practicing advocate before the Uttaranchal High Court with around 17 years of standing at the Bar. The focal point of the matter arose from four cases before the High Court in which the appellant represented one of the contesting parties. In those four cases, the Presiding Judge of the High Court made certain adverse observations/remarks against the appellant. A brief summary of High Court’s remarks in question is as follows:

Case 1. [1] Anguished over ‘suppression of material fact’ by the appellant, the High Court remarked: “The counsel for the petitioner is a seasonal (sic seasoned) advocate … he has deliberately created a wrong example for the pious institution.

Case 2. [2] Disapproving appellant’s tactic of ‘wasting court’s time’, the High Court said: “.. the learned counsel for the plaintiff/appellant … was intentionally attempting to make a mountain of a mole, which .. was a brutal assassination of time … It further reflected that as if it was not an argument for the case but rather for the visitor’s gallery.

Case 3. [3]  Noting the ‘unacceptable conduct’ of the appellant, the Presiding Judge observed: “… the learned counsel for the appellant submitted that in a prior proceeding which was held before this Court … since I had appeared as a counsel on behalf of the defendant/appellant herein, an attempt was made … to avoid to address of the Second Appeal on its merits before this Court.” (sic)

Case 4.[4] Expressing displeasure against appellant’s ‘modus operandi’ in placing voluminous record including irrelevant precedents/judgments running into volumes, at the stage of admission of the petition itself, the High Court, inter alia, remarked: “… the intention behind making reference to the judgment, was to mislead the Court and to buy time in prolonging the proceedings in order to overcome the effect of dismissal of the concurrent Writ Petitions in limine by placing voluminous judgments on record, and making references of them, by quoting excerpts.

Aggrieved, the appellant approached the Supreme Court for expunging such offending remarks recorded by the High Court against him.

Contention

The appellant submitted that the offending comments were neither essential nor necessary for the High Court’s verdict in the cases concerned. In any case, those remarks were made without putting him to notice or providing any hearing. Further, such adverse comments will not only undermine the professional reputation of the appellant, but would also impact his standing and practice as a lawyer.

In addition, it was submitted that the comments may have emanated from personal prejudice and may not be otherwise warranted. It was stated that before his elevation to the Bench, the Presiding Judge concerned was a member of the same Bar as the appellant and both were rival counsel in several contested matters.

Analysis and Observations

The Supreme Court relied on a catena of judicial precedents on the subject, including State of U.P. v. Mohd. Naim, AIR 1964 SC 703, where Justice S.K. Das laid down three tests to be applied while dealing with the question of expunction of disparaging remarks:

(i) Whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself;

(ii) Whether there is evidence  on record bearing on that conduct justifying the remarks; and

(iii) Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.

Discussing the law laid down in earlier cases which has been consistently followed, the Court observed:

While it is of fundamental importance in the realm of administration of justice to allow the judges to discharge their functions freely and fearlessly and without interference by anyone, it is equally important for the judges to be exercising restraint and avoid unnecessary remarks on the conduct of the counsel which may have no bearing on the adjudication of the dispute before the Court.

Considering the adverse comments recorded in the High Court judgments, the Supreme Court was of the view that such remarks could have been avoided as they were unnecessary for deciding the disputes. Moreover, in Court’s opinion, they appeared to be “based on the personal perception of the learned Judge“.

It was apparent that the Judge did not give any opportunity to the appellant to put forth an explanation. The Court stated that the remarks so recorded have cast aspersion on professional integrity of the appellant. Such condemnation of the appellant without giving him an opportunity of being heard would be a negation of principles of audi alteram partem. The requisite degree of restraint and sobriety expected in such situations was also found missing in the offending comments.

Opining that to allow the appellant to suffer would be prejudicial and unjust, the Court said:

The tenor of the remarks recorded against the appellant will not only demean him amongst his professional colleagues but may also adversely impact his professional career. If the comments remain unexpunged in the court judgments, it will be a cross that the appellant will have to bear, all his life.

Decision

The Court concluded that the offending remarks recorded by the Presiding Judge of the High Court against the appellant should not have been recorded in the manner it was done. It was accordingly held that the offending remarks should be recalled to avoid any future harm to appellant’s reputation or his work as a member of the Bar. Order was made accordingly. [Neeraj Garg v. Sarita Rani, 2021 SCC OnLine SC 527, decided on 2-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.   


[1] WP (M/S) No. 2216 of 2017 and WP (M/S) No. 2208 of 2017, dated 14-11-2017 (Uttaranchal High Court)

[2] SA No. 190/2019, dated 22-11-2019 (Uttaranchal High Court)

[3] SA 182 of 2019, dated 12-3-2020 (Uttaranchal High Court)

[4] WP (M/S) 519 of 2019, dated 22-2-2021 (Uttaranchal High Court)

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