Dignity of courts overcome by spats

This is arguably the first time in the history of the Indian Supreme Court that a senior advocate has resigned from practice after a spat with the Chief Justice of India (CJI) Dipak Misra. Not only that, Rajeev Dhawan even relinquished his senior’s gown which distinguishes lawyers of his caliber from other lawyers. Lawyers, like doctors, do not resign practice. They gracefully fade away after age overtakes mental agility.

On December 6, during the final day of a hearing relating to a power tussle between the Kejriwal government and the Delhi Lieutenant-General, CJI Dipak Misra took exception to Rajeev Dhawan telling the constitution bench that they had narrowed down the scope of a hearing by limiting it to only one aspect of Article 239AA – spelling special powers for Delhi, a view not supported by other senior lawyers appearing for the Delhi government.

During arguments, Dhawan was reported to have shouted at CJI Misra. Then, in the matter of Centre versus Delhi, Dhawan, who was representing the Arvind Kejriwal government, wanted to further a few more arguments even though CJI Misra had said the Supreme Court had reserved its order in the case.

Following these two episodes, CJI Misra bluntly said that the trend of lawyers raising their voices showed their "inadequacy, incompetence and the fact that they are not even eligible to become seniors...If the Supreme Court Bar Association does not regulate such members, we will be forced to regulate them," CJI Misra added.

But again, lawyers have to speak their minds without fear of being pulled up. It is after a series of spats between 71-year-old Dhawan and successive benches of the Supreme Court that the distinguished senior lawyer declared in a two-line letter submitted to the CJI: "After the humiliating end to the Delhi (vs Centre) case, I have decided to give up court practice". Dhawan went on to add that CJI Misra was "entitled" to take away the "senior gown" conferred on him. However, "I would like to keep it for memory and services rendered," he declared laconically which may prompt the soft-spoken CJI to allow him to do so.

Dhawan's decision to leave court practice comes days after he had two famous run-ins with the Chief Justice. The first was during the Ayodhya case during which Dhawan and fellow lawyers Kapil Sibal and Dushyant Dave animatedly pleaded that the Supreme Court defer hearings in the Babri-Ram Janmabhoomi case until after the 2019 Lok Sabha election.

The Aam Aadmi Party-led government in Delhi and the Centre had locked horns after the home affairs ministry passed a notification in May 2016, giving “unprecedented powers” on matters such as public order, police and services to then Delhi Lieutenant Governor Najeeb Jung.

The apex court was approached to adjudicate whether the lieutenant general or the Delhi government had primacy in governing Delhi. This issue is of grave national importance because it involves interpretation of the Constitution and will affect Centre-state relations.

Apparently, displeased over Dhawan’s submission, the chief justice said: “This is unfair, uncalled for and (an) unwarranted argument. You can’t say something and attribute it to us.” The judge expressed dissatisfaction with Dhawan’s tone and tenor of arguments during the hearing.

However, Dhawan has a Constitutional right to present arguments which may or may not be palatable to the bench. A lawyer cannot sugarcoat all his arguments for a bench which may hold adversarial views and excoriating such a senior lawyer may leave him humiliated. Litigation is always adversarial and to drive home a point, it is necessary, occasionally, that a lawyer has to raise his voice.

There are microphones in Bombay High Court and Supreme Court but quite often the arguments are inaudible to the media and also to the litigants for whom the arguments have been advanced where the decisions based upon these arguments matter a great deal. It is nobody’s case that lawyers should raise their voices and lower the decorum of the court.

The point to be made is that Rajeev Dhawan has earned a formidable reputation as a human rights activist, columnist and author. Some reports say that Dhawan had a series of tiffs with various judges at the Supreme Court. In 2013, while the hearing of the high-profile 2G scam case was on, Dhawan had hit out at Justice G S Singhvi for recusing (abstaining) from the matter. Dhawan reportedly did not like the bench’s decision of deferring the case.

In 2014, Dhawan reportedly had a tiff with a bench of Justice KS Radhakrishnan and J S Khehar resulting in strong observations against his conduct. Again, Dhawan had a spat with CJI TS Thakur in the same case twice – in 2014 and 2016.

Later, Justice Thakur even said that some lawyers are discourteous in court. Lawyers had angrily said they were not given a “fair chance” to make their submissions and had threatened to walk out of the court in the Ayodhya case. By denying lawyers to put across their arguments vehemently, the apex court will not have heard contravening viewpoints and precedents based upon these contrarian viewpoints. Some of these judgments may naturally be stilted and subjective.

The CJI had reprimanded several senior lawyers, including Dhawan and Kapil Sibal. “Raising voices will never be tolerated. Argue on legal principles. Raising voice shows incompetency, not worthy of senior lawyers,” he said, adding, “When the Bar fails to regulate them, we will be compelled to regulate.”

Regulating lawyers is not the function of the judiciary, but of the Bar Council of India, which is the apex regulatory body for the legal profession. However, the senior’s gown is conferred by a panel of senior judges of the Supreme Court after a lawyer applies to be designated as a senior. Judges from the collegium, which selects judges for the 24 High Courts and the Supreme Court, will naturally form part of this panel.

There are various conditions to be satisfied and the names are circulated before judges before whom the lawyer has appeared so that they have had the opportunity to observe his demeanour and erudition in presenting his arguments.

Hence, by excoriating seniors, the judges are indirectly pointing fingers at themselves because it is they who have conferred the senior’s gown on the lawyers after observing them. Dhawan has indirectly and tactfully conveyed a point that the judiciary is not omniscient but quite often makes errors in both selection of judges, senior lawyers and occasionally in their judgments.