MODULE 4: BAR AND BENCH

● The place where the judges sit is called ‘Bench’

● The place where the advocates stand is called ‘Bar’.
● The term Bar represents the synergic group of attorneys who are empowered to practice in court, or courts
of any state. Anyone, who has a Law Degree (from any university) and who is a member of Bar-Council
of India, can be enlisted to be an advocate, thus, such advocates who practice in the court of law, are
considered as BAR.

Legally, the term ‘Bench’ has various meanings. Most importantly, it represents the place where the judges or
the judge of any court normally sit for the hearing of the trial. Secondly, it also represents the judges of
particular court collectively, For Example- Queen’s Bench in England & similarly in Wales.

Bench-Bar Reciprocity here means the practice of exchanging things, especially powers, privileges and duties
with each other for mutual benefit. Bench & Bar I.e., Judges & Advocates share with each other their common
powers & privileges in order to ensure effective administration & implementation of justice.
● Bar-bench means the cordial relationship among the judges & the advocates. Both Bench & Bar play an
important role in the administration of justice.
● The Advocates are like administrant of the court, their duty is to act like an ‘functionary agent’ to the court.
The judges are responsible for delivering justice, but they cannot do so without the help of the lawyers.
● Similarly, advocates are responsible for presenting their clients, whose rights have been violated and
ensuring that they do receive justice. Both Bench & Bar i.e., judges & Advocates are equally responsible
for the administration of justice. So, there must be mutual respect, understanding & effort.
● An Advocate is the member of the Bar Council of India, which is the statutory body established under
Section 4 of Advocates Act, 1961.
● The function of the Bar Council is to modulate and regulate legal practice & legal education all around the
country.
● The head of the ‘All India Bar Committee’ S.R. Das suggested for the establishment of the Bar-Council for
each state and All India Bar-Council as an apex body.
● The Law Commission along with the All-India Bar committee collectively introduced the Advocates Act,
1961 in order to ensure proper regulation of the legal education as well as legal practices, throughout the
country.
● It also stipulates etiquette, code of conduct, behavior & it also exercises disciplinary jurisdiction over the
bar.
The Hon’ble Supreme Court laid down in the case, P.D. Gupta V. Ram Murti & Others AIR 1988 SC 283:
“A Lawyer owes a duty to be fair not only to his clients but to the court as well as to the opposite party in the
conduct of the case” The Court further stated that “Administration of justice is not something that concerns the
Bench only, it concerns the Bar as well.” The SC in this case, also said that “Actually judges & lawyers are
complementary to each other. The primary duty of the lawyer is to inform the court as to the law & facts of the
case & to do justice by arriving at the correct conclusions.”

Mahant Hakumat Rai v. Emperor, AIR 1943 Lahore 14, the Lahore High Court had held that “Without
failing in respect to Bench, it is the duty of the members of the Bar to assert their just rights to be heard by the
tribunal before which they are practicing. They should be fearless and independent in the discharge of their
duties and would be perfectly right in protesting against irregular procedure on the part of any judge; and if the
advocate is improperly checked or found fault with, he should vindicate the independence of the Bar. He would
be perfectly justified in insisting on getting a proper hearing and he would be perfectly right to object to any
interruption in the course of his argument such as to disturb him in doing his duty to his client. Plenary powers
vested in the Presiding Officer of the Court, apart from the fact that they have rarely been used against
members of the legal profession so far, should only be used to vindicate the honor of the court or to satisfy the
necessities of public justice and not as a matter of course.”
● The Advocates must hold respect regardless of their status, while they’re in a court.
● The advocate must not give his private opinion on any matter of prior importance, he
must work to ensure proper administration of justice, and give the judiciary prior
importance.
● A corrupt judiciary would mean complete loss of the chance of individual’s happiness
and liberty.

Therefore, both Judges & Advocates must perform their respective duties. Because,
neither of them can run the administrative justice alone.
BENCH-BAR RECIPROCITY AS PARTNERS IN ADMINISTRATION OF JUSTICE

● A lawyer, who is a member of Bar Council and hence the judiciary system of India, represents his clients
in the court & has certain responsibilities towards them. He is responsible for providing pure justice to his
clients.
● A lawyer has to perform various functions: As a client’s representative, he represents his client in the
court of law. As an Advocate, he ensures proper delivery of justice. As an evaluator, he ensures that the
clients or individuals are aware of their rights & obligations and also takes steps to provide victims of
crimes with clear procedure for obtaining their remedy through law.
● An Advocate must be hardworking, prestigious, competent & diligent. A lawyer must be able to keep in
confidence info about the client & only disclose the information permissible by the law.
● A lawyer must solve the conflicts among his professional association with proficiency. His conduct must
be adequate in respect of the court, clients as well as with other advocates.
● A judge should be law-abiding, faithful in actions, loyal by heart, fearless in bravery & ambitious for
justice.
● For proper administration of justice there must be mutual understanding & respect among these two
branches I.e., Bench & Bar. Without cordial relations between these organs a peaceful atmosphere
cannot be created.
● Lawyers as well as judges have a very important & crucial role in maintaining the well-being of
society. These roles are crucial for society & can only be fulfilled with a complete understanding of
the relations among them.
● Legal profession demands proficiency, fearlessness, non-biasness. Whether one is a member of a Bar
or Bench, one must stand by what is right & what is wrong, in a cordial manner & without fear.
● There must be tolerance & understanding on the part of both sides. And neither the judge nor
advocate, neither of them is bigger than law.
 COMPOSITION OF BAR ASSOCIATIONS
Bar Association of India is an organization of lawyers established to promote professional competence,
enforce standards of ethical conduct, and encourage a spirit of public service among members of the legal
profession. Bar Association of India was structured by its founding fathers as a representative voluntary
body of the Indian legal profession. Its Governing Council is composed of

● Members elected by individual members of the Association from each State and Union Territory;
● Members elected by the District Bar Associations and
● Law Societies and other Bar Associations of each State and Union Territory.
● The Attorney General for India,
● Solicitor General of India and the
● Senior-most Additional Solicitor General of India,
● Advocate Generals of all States,
● President of the Supreme Court Bar Association and
● Presidents of all High Court Bar Associations are the Ex-officio Members of the Governing Council
of the Association.
The Association was established on 8th August, 1959 and was formally inaugurated on 2nd
April 1960 by the then President of India, Dr. Rajendra Prasad, in Vigyan Bhavan, New Delhi, in
the presence of the then Vice President of India Dr. Sarvepalli Radhakrishnan, the then Prime
Minister Pt. Jawaharlal Nehru, the then Chief Justice of India, Law Officers of India, all the
Advocate Generals and many other stalwarts of the profession including Presidents of various High
Court Bar Associations.

The Association represents Indian Legal Profession in all the major International Organisations of
legal professionals, including International Bar Association (IBA), Commonwealth Lawyers
Association (CLA), Union Internationale des Avocats (UIA), The Law Association for Asia and
the Pacific (LAWASIA), Inter-Pacific Bar Association (IPBA) and International Legal Assistance
Consortium (ILAC). The representatives/nominees of BAI have been elected to important
positions in these Associations, including to the post of President in the past.

The current President of the Association is Mr. Prashant Kumar

 DUTIES OF THE BAR
Advocates are the essence of the courts. They are expected to secure administrative justice in the courts. Advocates
assist the courts in serving justice to all. Hence, it is important for them to act in a certain manner that will not
hamper the system of justice & equality. Therefore, they must follow aforementioned duties strictly:

● An Advocate must not be involved in any corrupt practices, he must be loyal to the law & the court as
well.
● An Advocate must not use any illegal means in order to change or alter the decisions or proceedings of the
court.An Advocate has a responsibility to be fair and righteous towards his client as well as the court.
● His tone must always be professional while dealing with his case & he must not use any kind of bad
knowledge while the case is on trial.
● An Advocate must show respect to the judges & must not attempt contempt of court. Contempt of court
is of various types, for example, threatening the judges, or being disrespectful or disobedient towards the
court or its judges.
● An Advocate must have perfect knowledge of the law he is dealing with. He must always be prepared.
● The duty of Bar to Bench is to maintain its honor & integrity.
 FAIR TRIAL
Himanshu Singh Sabharwa v. State of M.P. and Ors., the apex court observed that if fair trial envisaged under the
Code is not imparted to the parties and court has reasons to believe that prosecuting agency or prosecutor is not
acting in the requisite manner the court can exercise its power under section 311 of the Code or under section 165 of
the Indian Evidence Act, 1872 to call in for the material witness and procure the relevant documents so as to
subserve the cause of justice.

State of U.P. v. Naresh and Ors, held that “every accused is assumed to be innocent unless his guilt is proved. The
presumption of innocence is a human right subject to the statutory exceptions. The said principle forms the basis of
criminal jurisprudence in India.”The principle of innocence is must in a trial in order to protect the accused from
arbitrary and wrongful conviction principle of natural justice ‘nemo judex in causa sua’

Shyam Singh v. the State of Rajasthan the court held that the question is not whether a bias has actually affected
the judgment. The real test is whether there exists a circumstance according to which a litigant could reasonably
apprehend that a bias attributable to a judicial officer must have operated against him in the final decision of the case.
In the case of Naresh Sridhar Mirajkar v. the State of Maharashtrathe apex court held that the right to open
trial must not be denied except in exceptional circumstances. High Court has inherent jurisdiction to hold trials
or part of a trial in camera or to prohibit publication of a part of its proceedings.This right is secured by the
Article 39A of the Constitution which provides for equal justice and free legal aid. Section 304 of Cr.P.C also
provides for legal aid at the expense of State. Legal assistance to accused that has no means to defend himself is
crucial to protect his life and personal liberty.

Legal aid has its root not only in Constitution and Criminal laws but also in human rights. In Khatri v. the State
of Bihar, the court held that the accused is entitled to free legal services not only at the stage of the trial but also
when first produced before the Magistrate and also when remanded.

The concept of speedy trial flows from Article 21 of the Constitution. In Husainara Khatoon v. the State of
Bihar, the Supreme Court recognized that speedy trial is an essential ingredient of article 21 of the Constitution
of India. And it’s the Constitutional duty of the State to set up such procedure as would ensure speedy trial to the
accused.

In the case of Moti Lal Saraf v. Union of India the court observed that the concept of a fair trial is an integral
part of article 21 of the Constitution.
This principle is placed on the rule of ‘nemo debet vis vexari‘ which means a man should not be put twice in peril for the
same offence. Prohibition on double jeopardy is a fundamental right protected by the Constitution of India under Article
20(2) which reads ‘no person shall be prosecuted and punished for the same offence more than once.’ The principle of
double jeopardy is based on the doctrine of autrefois convict and autrefois acquit

Article 20(2) of the Constitution and section 300(1) differs from each despite the fact that their meaning is the same. The
Supreme Court in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, differentiated between article 20(2) of the
Constitution and section 300(1) of Cr.P.C. While, Article 20(2) of the Constitution only states that ‘no one can be
prosecuted and punished for the same offence more than once’, Section 300(1) of Cr.P.C states that no one can be tried
and convicted for the same offence or even for a different offence but on the same facts. Therefore, the second
prosecution would be barred by Section 300(1) of Cr.P.C.

Article 20(3) of the Constitution reads, “No person accused of any offence shall be compelled to be a witness against
himself.” As per Article 20(3), no person is bound to accuse himself. The right has been provided to ensure that an
accused do not make any statement due to threatening, influence or any other compulsion. However, where an accused
himself admits the guilt without any inducement Article 20(3) cannot be invoked. According to this article, the accused
need not require to make any statement against his will and the onus is on the prosecution to establish the guilt. In
Nandani Sathpathy v. P.L. Dani, it was held that a person is required to truthfully answer all the question except those
which admit his personal guilt.
COURT DECORUM
Decorum refers to proper behaviors and etiquette in the courtroom. Parties to a case must conduct themselves
properly, such as observing decorum during a court appearance or when interacting with the judge or other
court staff. In other words, you should be on your best behavior during your case and when you appear in front
of the judge

Whether you have a criminal or civil case decorum rules apply to any court proceeding. Even in the small
claims inside court, which often follows relaxed rules of evidence and civil procedure, litigants must still
observe decorum.

Examples of decorum include the following:

● Addressing the judge as “your Honor"

● Showing respect to court officers and other court personnel like the bailiff and court clerk
● Turning your cell phone off during the court hearing
● Showing up on time for your court date
Commons rules of courtroom decorum include the following:

● Show up on time: Be prompt and prepared for your court date.

● Dress professionally: Don't wear a T-shirt or anything with logos or graphic designs. Consider wearing at
least business-casual clothing.
● Always address the judge as your Honor: Do not call them by name or as a judge unless told you could.
● Never interrupt or argue with the judge: Even if you disagree, know that outbursts won't help you.
● When speaking to the judge, stand up and be clear: Take your time and try not to shout.
● Your only interruptions should be legal objections to their statements: Don't interrupt them because you
disagree. Even if you think they are telling lies to the court, wait your turn. The court will allow you to
respond and cross-examine them later.
● Answer questions directly: Don't try to be clever or snarky.
● Don't comment under your breath: Non-verbal acts or responses may disrupt the court. If you believe the
opposing party made a false statement, don't roll your eyes or shake your head such that it disrupts the
proceeding.
● Turn off your cell phone: Do it before entering the courtroom, or leave it outside.
● Do not bring food or drinks into the courtroom: In addition, don't chew gum during your court case.
 DUTY OF JUDGES WITHOUT BIAS
In order to make a judicial decision fair, without any objective and without any bias, a Judge should follow
certain code of ethics. The code of ethics which should guide a Judge in execution of the judicial functions
may be summarized as follows:-
(i) The basic code of ethics is the principle that no man can be judge in his own cause.The principle
confines not merely to the cause where the Judge is an actual party to a case, but also applies to a case in
which he has interest. A Judge should not adjudicate in a case if he has got interest therein. Judge do require a
degree of detachment and objectivity in judicial dispensation. They being duty bound by the oath of office
taken by them in adjudicating the disputes brought before the court in accordance therewith, Judges must
remain impartial, should be known by all people to be impartial.
(ii) Judges must not fear to administer justice. “Fiat justitia, ruat caelum” that is “let justice be done
though the heavens fall” should be followed as a motto by a Judge. Every unjust decision is reproach to the
law of the Judge who administers it. A judge should not allow either reason of the Judge who administers it.
A Judge should not allow either reasons of State or political consequences, however, formidable they might
be, to influence his decision. He should guard against intimidation of powerful outside interests, which often
threatened the impartial administration of justice and keep himself free from application of crude pressure,
which may result in manipulation of the law for political purposes at the behest of the government in power
or anybody else.
(iv) Distances may be maintained from the relations and acquaintances, parties to the dispute
and their lawyers. Judges should be cautious in their outlook and approach. They should neither
provide supportive stool to their sons and daughters, close relations and acquaintances in order that
they may succeed in the profession nor recognize chosen ones in that sphere.
(v) Too much of activity and participation in social functions be avoided. It is often said that as a
result of a very considerable amount of ordinary social activity, a Judge may become identified with
people and points of view, and litigants may think they may not get fair trial. To repel that feeling, a
Judge should avoid too much of social activity. Again, Judges should be very selective in attending
social functions. The Supreme Court in Ram Pratap Sharma v Daya Nand issued a note of caution to
the effect that it is proper for a Judge not to accept any invitation and hospitality of any business or
commercial organization or of any political party or of any club or organization run or sectarian,
communal or parochial lines
(vi) Media Publicity be avoided: As far as possible a Judge should keep off the media. He should
refrain from expressing his views in media on matters either pending before him or likely to appear
for judicial consideration. Else he may be accused of prejudging the issue and his neutrality may be
questioned thereby. Lord Widgery, Lord Chief Justice of England since 1971 to 1980, said that “the
best judge is the man who should not court publicity and should work in such a way that they don’t
catch the eyes of the newsmen”. Lord Hailsham said that the “best judges are those who do not find
their names in the The Daily Mail and still, who abhor it”
(vii) Need of restrainment be not overlooked. Socrates said, four things belong to a Judge; to
hear courteously, to answer wisely, to consider soberly and to decide impartially. In the matter of
making disparaging remarks against a person or authority whose conduct comes into consideration
before a court of law, a Judge should consider: (a) whether the concerned party or authority is
before the court or has an opportunity of explaining or defending himself; (b) whether there is
evidence on record bearing on their conduct justifying the remarks; and (c) whether it is necessary
for the decision of the case, as an integral part thereof, to animadvert on that conduct
(viii) Judges not to yield to procrastinative tactics of the lawyer: It is the duty of the Judge to
see that the lawyer does not intentionally delay the proceedings of the court by seeking repeated
adjournments. When a complaint is made to the State Bar Council against an advocate for drawing
of disciplinary proceedings by the Disciplinary committee of the State Bar Council on the ground
that the concerned advocate had been seeking repeated adjournments for postponing the
examination of the witnesses who are present in the court without making alternative arrangement
for their examination, conduct of such advocate has been held by the Supreme Court to be
professional or other misconduct, and it is the duty of the Bar Council of India has refused to
entertain such a complaint against an advocate and the said order of the State Bar Council has
been affirmed by the Bar Council of India,
IMPARTIALITY AND GOOD CONSCIENCE IN JUSTICE
DELIVERY
Power and Jurisdiction of the Supreme Court of India under Article 142 of the Constitution of India,
Supreme Court’s interpretation of the scope of this provision led the legal profession to interpret this
decision in the widest possible sense and implement the doctrine. In the Constitutional Court, the
Supreme Court, In Siddique v. Suresh Das (Ram Janmabhumi Temple), the Supreme Court interpreted
Section 142 as the directly applicable source of doctrine. The Constitution of India does not expressly
provide for the application of the principles of “impartiality, justice and peace” when courts exercise their
jurisdiction and perform their functions

They are Articles 142, 32 and 136 (Jurisdiction and jurisdiction of the Supreme Court) and Article 226
(Jurisdiction of judgments of the Supreme Court). Of course, Article 142 of the Constitution has been
accepted in its broad scope as a true and complete expression of the principles of justice, equality and
peace of conscience, and this has been clearly confirmed in the judgment of the Ram Mandir Tribunal
 ACADEMIC CONTRIBUTION
Bar- Lawyers
Legal research and writing- Legal journals, commentaries, case analysis
Guest lectures and teaching- offering practical insights
Law Reforms and policy advocacy
- law commission consultations
- drafting bills
- policy changes
- Public interest litigations
Bench- Judges/ Judiciary

Judicial pronouncements- landmark judgments

Legal literature and speeches- books, articles, papers- conference, seminar

Legal philosophy

Constitutional interpretations

Mentors, research guides, internship guides

SKILLS OF LAWYERS
1. Public speaking
2. Writing Skills
3. Ability to work with the client
4. Ability to search, analyse, apply logic
5. Study of legal practice and legal research
6. Adapting to technologies
7. Knowledge of basic laws and legal procedures
8. Time management
9. Organisation
10. Teamwork (support of staff, consultants, senior guidance)