Advocate Practising Before Court Sitting as Magistrate Section 526

Section 526, BNSS 2023

No pleader who practises in the Court of any Magistrate shall sit as a Magistrate in that Court or in any Court subordinate thereto.

📖 A.K. Kraipak v. Union of India, (1969) 2 SCC 262

Facts: A selection board constituted to make appointments included, as one of its members, a person who was himself a candidate for selection. He did not sit when his own case was considered, but participated in the consideration of the other candidates and in the preparation of the final list.

Held: The Supreme Court held that the principle that no man shall be a judge in his own cause is not confined to proceedings before courts, and applies wherever a body is under a duty to act fairly in deciding something affecting the rights of others. It held that the question is not whether the member was in fact influenced by his own interest, nor whether he acted honestly: what matters is whether there was a reasonable likelihood of bias — and that where a person has an interest in the outcome, the proceeding is vitiated whatever his personal integrity, because the appearance is decisive. The Court rejected the argument that abstaining when his own case was considered was sufficient, holding that his participation in the rest of the exercise affected the comparative assessment and therefore the result. It emphasised that the rule exists to preserve confidence in the fairness of the process, and that human nature being what it is, a person cannot be expected to be a fair judge where his own interest is engaged.

Ratio: No man shall be a judge in his own cause, and the rule applies wherever a body must act fairly. The question is a reasonable likelihood of bias, not actual influence, and the appearance is decisive whatever the personal integrity of the adjudicator.

📖 Bar Council of Maharashtra v. M.V. Dabholkar, (1976) 2 SCC 291

Facts: Disciplinary proceedings were taken against advocates for conduct said to be unbecoming of the profession, and the Supreme Court took the occasion to describe the standards to which a member of the legal profession is held and the reasons for them.

Held: The Supreme Court held that the legal profession is not a trade or business but a calling in which the advocate owes a duty to the court as well as to his client, and that the standards expected of him are correspondingly high. It held that an advocate is an officer of the court, that the administration of justice depends on the confidence which the public reposes in those who conduct it, and that conduct which compromises the independence or the appearance of independence of the process is objectionable irrespective of whether any party has actually suffered. The Court observed that the profession’s claim to regulate itself rests on its willingness to enforce those standards strictly, and that the dignity of the court and the confidence of the litigant are matters in which every member of the profession has an interest. It emphasised that rules which appear technical frequently exist to prevent the occasion for suspicion from arising at all, which is a surer protection than examining suspicion after it has arisen.

Ratio: The legal profession is a calling in which the advocate owes a duty to the court as well as to his client. Conduct which compromises the independence or the appearance of independence of the process is objectionable irrespective of actual harm.

⚠ Why a structural rule rather than a case-by-case test

A case-by-case enquiry into whether a particular pleader-magistrate would be fair requires the objecting litigant to allege partiality against a person he must continue to appear before — which few will do.

It also requires the Court to decide a question about itself, which is precisely what the rule against bias says should be avoided.

And it leaves the appearance unaddressed even where the enquiry exonerates the individual. A litigant told that his judge was found impartial after enquiry is not in the position of one whose judge was never open to the question.

A structural rule avoids all three difficulties. It costs something — it disqualifies people who would in fact have been perfectly fair — and the law accepts that cost because public confidence is worth more than the convenience of the individual appointment.

The position stated shortly

1. Section 526: no pleader who practises in the Court of any Magistrate shall sit as a Magistrate in that Court or in any Court subordinate to it.

2. The objection is not to the advocate’s character but to the appearance created when the same person appears before a bench and then sits on it.

3. The section is absolute: it admits of no permission and no exception, and asks nothing about the particular case.

4. The disqualification is structural — it operates on the office, removing a class of persons from a class of courts.

5. Its reach extends to the Court in which he practises and any Court subordinate to it.

6. The principle is that no man shall be a judge in his own cause, and it applies wherever a body is under a duty to act fairly: A.K. Kraipak.

7. The question is a reasonable likelihood of bias, not actual influence, and the appearance is decisive whatever the personal integrity of the adjudicator.

8. An advocate is an officer of the court who owes a duty to the court as well as to his client, and conduct compromising the appearance of independence is objectionable irrespective of actual harm: M.V. Dabholkar.

9. Section 525 is case-specific and liftable; section 526 is structural and absolute. Both serve the same object.

10. A structural rule disqualifies some who would in fact have been fair, and the law accepts that cost because public confidence is worth more than the convenience of the individual appointment.