BL > CA's 'sagely' recommendation (verging on 'advice' (?) / diktat (?) ) to, of all, Judiciary ?!

S. MURLIDHARAN

Judges need to be provocative

Digvijay Singh clearly betrayed ignorance over conduct of court proceedings when he said that the judges should hold their tongue and say whatever they want to in their written order ... »

Xcerpt:

,........ A judge needs to ask provocative questions to bring out the best defence from the counsels.

A judge who does not rock the boat during the hearings could be handicapped by the lack of best viewpoints from either side, to the detriment of justice.

Probing and provocative questions from the bench have often left counsels sheepish and red-faced. A docile judge would be as much remiss in his job as a teacher who, parrot-like, reads the lesson and walks away gleefully at the sound of the bell announcing end of the class.

A teacher cannot adopt a ‘take it or leave it approach’, nor can he teach mechanically or robotically. Likewise, a judge should not allow himself to be led by the nose by wily counsels. ...."

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<> Impromptu :

1.  Given the necessary provocation but not yielding to its influence, auto voice of prudence dictates to restrain self not to go into the merits or otherwise of the points made. Albeit, one may have so much to write, to produce  a full-fledged thesis; more so,  if one were interested  to use it for procuring  a doctorate in law. The subject matter is apparently riddled with extreme complicity of its ilks , one would prefer not to  venture into  a pathway  which even angels may fear to tread.

2.  Coming to a more serious facet, the write-up mainly is (except  the concluding para ?), it appears, focused on, -why the need for a judge to be ‘provocative’. May be,  what he really meant to say or said to mean was, - judge should be quick -witted or intuitive/sharp  enough, to apprise which way the balance should be tilted, depending on which of the two mutually opposing  exhibition of wits be accepted. Anyone having practical experience or exposure may not readily agree, but, if at all, in any event on the first blush, agree only to disagree. What might not be acceptable is the burden of the song  which is to the effect that it is the judge  who has to be sufficiently shrewd for adjudicating  which of the two warring sides is entitled to succeed and have the balance tilted in favour .

3.  Again, turning to the lighter side of the law, being unsure of anyone having ever heard of it:

>The story relates back to the thirteenth century, The  most famous advocate was a gladiator called William Graham.  Businessman’s first choice; to be employed for a certain fee per fight. Graham was a most successful advocate; when engaged by any party, the case usually went uncontested.

> When William the conqueror came to England he introduced the system of  ordeal  or  trial, by battle. the fight had to be by the litigant in person unless he was allowed to be represented by a champion. Thus the gladiator was the predecessor of the modern day advocate

“I have never stopped thanking the providence for the change in the mode of advocacy.  If the mode which prevailed in the earlier centuries were to continue today,  there would be a drastic change in the leadership of the Bar.”

“...one of the tersest remarks on what judges are expected to do was the observation made by Lord Asquith, then a member of the Court of Appeal. It was at a dinner meet, in England, the members of the American Bar  with the English Bar.  Lord Asquith addressing the gathering said, -  “he could answer in a few words the question ..put to him as to what were the respective functions of the Kings Bench Division, the Court of Appeal and the House of Lords... it is the duty of the trial court to be slow, courteous and wrong. This is however not to say that it is the duty of the Court of Appeal to be quick, rude and right, for that would be to usurp the function of the House of Lords.”

 While the above are random samples, in a flash, for relishing the original flavour,  would  recommend  to read the most enlightening  lectures/articles  of fondly called and remembered,  renowned lawyer , but uniquely with a different cult, - ‘Nani’  - published in Chapter 17 of the Book, - WE, THE PEOPLE.