An advocate’s privilege

Eardley Norton, a formidable Barrister of the Madras High Court in the colonial era, faced a predicament similar to that of the present Advocate General of Tamil Nadu over his arguments in the Vishwaroopam case.

The Zamindar of Bodinayakanur was being prosecuted for his alleged role in a conspiracy to commit a dacoity. Norton, appearing for the Zamindar, argued that the case was concocted and that a senior member of the Madras Civil Service, Sullivan, was aware of this yet kept up the case for ulterior purposes.

Sullivan sued Norton for defamation and it was in this case that the Madras High Court was asked to decide the contours of counsel’s privilege.

In 1886 a full bench consisting of Collins, Kernan, Muthuswami Ayyar, Brandt and Parker (what a bench!) sat to hear this matter. The law laid down by the Madras High Court has held the field ever since.

The court ruled that it would be beyond measure embarrassing to advocates and disastrous to the interests of clients, if an advocate were to be exposed to the liability of civil or criminal charges for defamation for words uttered in court. The court approved the dictum, “If anyone needs to be free of all fear in the performance of arduous duty, an advocate is that person”.

This celebrated axiom hangs below the portrait of Eardley Norton in the High Court today.

It is true that good grace, self-restraint and magnanimity must inform every aspect of an advocate’s occupation. Tamil Nadu Advocate General Navaneetha Krishnan can at best be accused of breaching decorum for his remarks against the Central Board of Film while defending the ban on Vishwaroopam in the Madras High Court, but definitely not the law.

(N.L.Rajah is an advocate in the Madras High Court.)

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Printable version | Jan 16, 2022 4:49:55 PM |

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