Role Of Legal Profession In Administration Of Justice

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Law Commission Report

Role Of Legal Profession In Administration Of Justice

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LAW COMMISSION OF INDIA

ONE HUNDRED TI-IIRTY-FIRST REPORT

ROLE OF THE LEGAL PROFESSION
IN ADMINISTRATION OF JUSTICE

1988

Tel. No. 384475

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LAW COMMISSION
'WI'-'Cd HFFTI
GOVERNMENT OF INDIA
_,,,,, ma? was,
SHASTRI BHAWAN,
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NEW DELHI

D. A. DESAI
Chairman

August 31, 1933.
D.o. No. 6(2)(6)/87-LC(LS)

Shri B. Shankaranand,
Minister for Law and Justice,
Government of In.dia,

Shastri Bhavan,

NEW DELHI.

Dear Shri Shankaranand,

This is the journey's end. By the letter dated February 17, 1986,
your predecessor. the then Law Minister Mr. A.K. Sen, conveyed a
decision of the Government of India to the Law Commission that the
task of studying and recommending judicial reforms, for which a sepa-
rate commission was mooted, is assigned to the present Law Commission.
The reference also contained a request to give top priority to it because
of the day-to--day deteriorating situation in the system of administration
of justice. The Law Commission rescheduled its work accordingly.

I have great pleasure in informing you that all the terms for the
proposed 'Judicial Reforms Commission which were forwarded to us
have been duly taken into account and a report, or, where necessary,
more than' one report. has been submitted covering each term of refe-
rence. Among the terms of reference, term No. 6 was with regard to
'the role of legal profession in strengthening the system of administra-
tion of justice'. That was reserved for the last report.

I am happy to forward to you the 131st Report covering this term
and by sheer coincidence, this is the last report of the present Law
Commission.

I am sure that all these reports would be expeditiously implemented

with a View to reclaiming the system before someone has to call 'Amen'
to it. ' Tye'?!

With kind regards,

Yours sincerely,

Sd/-
(D.A. DESAI)

Encl : A Report

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CHAPTER I

CHAPTER 11

CHAPTER III

CHAPTER IV

CONTENTS

INTRODUCTORY . . . .

THE DEBATE
CONCLUSIONS AND RECOMMENDATIONS .

ACKNOWLEDGEMENTS . . .

NOTES AND REFERENCES . . . . .

QUESTIONNAIRE ON THE ROLE OF THE LEGAL PRO-
FESSION IN STRENGTHENING THE SYSTEM OF ADMINIS-
TRATION OF JUSTICE . . . . . . .

LIST OF PERSONS/BODIES WHO RESPONDED TO THE
QUESTIONNAIRE . . . . . . .

°HA1.'TF-3-1 Eli

, , 3 e " ' (p *1' ~ ..
1,1. While responding to the -inaugural» addness of the President of
Inma at the Fourth Commonwealth Law Confeivdnce on January 4, 1971,

Lord Hailsham of St. Marylebone, Lord Ghancellor of Great Britain-

saia : "Sir, you have been very generous shone; our profession. But we

cannot altogether conceal from ourselves the fact that lawyers, whom

1 am here to: represent, are a race not 'Iﬂ1iV6I\l8ll§' popular; nevertheless,

I believe, they are universally foundto ibelilﬂiih ensable. How can2they»-

be universally popular when it stands zto-,1' that in all contested
litigation one party at least must go away disappointed, and is usually
readier to blame his own lawyer, 0111113 a§ggrsgy's or, perhaps, shgqk-
ing as it may seem, even the Judge, rgtheg:-,tha'n his own conduct,.or
themvealmess of his case ? we lawyers are profoundly proud of our
calling. Whatever other people may think of us, we regard ourselves
as -being in the service of mankind?" Reserving the opinion on the cause
assigned for ;lack of popularity referredLto .I,.Q'rd Chancellor's speech,
the position of the Bar vis-a-vis administration of justice is here neatly
suxgned up. And the authority of the maker,g,:§ ._ e statement is unques-
tionablepbecapse he combines in his. person udge, the Minister, the
legislator and the lawyer rolled into pne.,Thg'lega1 profession has acquir-
edig' -high visibility proﬁle and conseg 'tlx, gheld multi-disciplinary
attepleisln 0_.f many sociologists of law." ; _a jurist unfairly yccusegl
of mthologicﬁl dislike for the profession ,to ._ ' A that 'if little sociology
leaﬁo ,ay1;§.y from the law, much S0ciOI_og.yj!'in a generic sense) returns
one tollﬁe study of the law". A number of gsecidlogical studies, of legal
profession have recently appeared.' ' ' ' '

«l. in

i~rli.2.=.-Legal! profession is multi-dimenuonalipins character. This report

does not purport torstudy and ana1yses:th¢slegal.pi'ofession with reference .. .

to 1ﬂl~dimensions--or its structure, organiiatinn; and functioning, nor does
it rpirport to: be the sociometry of the melsizklnlhip of legal' profession
tovvariousgnoups, such as litigants,' 'Judges, politicians, academics and
evenarnongst themselves. The limited scope' of the report may be arti-
culﬂed role of. legal -profession in stirengilbning the system of admi-
nistration of giustice. A; E _ I

' 'fr; . ' ;

1,3. This report would be the last lihkfin the chain of reports pre-
pared and submitted by the present Law Coiimiission after the task of
studying judicial reforms was assigned to it. One of the terms of refe-
rence drawn up by the Government of India for study of judicial

reforms is : 'the role of the legal profession irfstrengthening the system .
' of I inistration of justice'. The term articiilateé the scope and ambit

of t ,e report. Legal profession is one ofilfhe mosﬁ leading professions of

'intellectuals in this country and, as stated ea1'Her,=;it is multi-dimensional.

The present 1'.épOI't concerns itself with the 'role /of the legal profession
in strengthening the system of administratio1!*'oii'justice. It is, therefore,
neeasary to prescribe the parameters of this

1.4. The present system of administration. of justice owes its origin
to the adventaof the British rule in India: In itsnltructure and organisa-
tion,» the -administration of justice in India as atrpnesent in vogue has the
stamp 'of 'Made in U.K.'. The British system 'of jlistice is" iﬂC0I1Ce1Ve3b1e
without the barristers and so1icitors»b¢ﬁ:'1g..integ_'al part of the same.
When the British rulers by gradual 'doses"'intr('tluced the institution
of">British justice in India, simultaneotﬁly the imtitution Of legal PTO-
fessisbn came along with it, Came the barristersrind solicitors 3150- The
form and organisation in which the institution of: legal profession exists
today -has no Televance or connection. with the period of Indian history

I " ' prior to the advent of British rule in India. A research in this behalf 1135

lama, ~

revealed that while some researchers maintain that the litigants in pre-
British rule or even in ancient India hadajfights to delegate the represen-
tation of their claims to some other person sustaining the belief that
lawyers did exist in ancient lndia,' the contrary assertion is that lawyer
never existed as a distinct catego1y~with'i-n the legal system of ancient
India on the plea that, as per scriptures, it was the duty of the King or
the Judge to sift the evidence and do justice." In the pre-British period,
the system of administration of justice.did not acquire the overtones
of adversarial system with the result that the profession of lawyers was
hardly needed in the said cultural context to assist the litigant or his
delegates argue their cases before the "King who, as stated earlier, was
supposed to analyse the evidence and arrive at the truth directly perso-
nally. The same situation obtained throughout the Mughal period which
ended just before the British appeared on the scene.

1.5. The entry of the British in India towards the middle of the 18th
century ushered in a very signiﬁcant development resulting in several
systematic changes. As part of a systematic' process of consolidation of
the empire, English common law and British statutory laws were to be
madea part of the Indian legal system. 'Towards that end, members of
the British Bar were recruited as Judges. Conversant with the British
law and the common law, they interpreted the textual law, whatever
it was, giving it the overtones of common law. This needed a Bar able
to assist in this transformation. Macaulay' did the rest of it while codify-
ing laws in India. In the earlier period of' the history of Supreme Court
and Sadar Courts, the legal profession largely consisted of British Barris-
ters' and solicitors. The upshot of all these developments was the inesca-

pable, emergence and development of legal 'profession in the country '
which' had an automatic relevance in the context of court-based rational '

legal system of administration.

1.6. It was the Charter of 1774 which empowered the then existing
courts to approve, admit and enrol' advoegttes and attorneys to plead and

act onbehalf of the suitors, simultaneoiisly conferring power on the :

courts to remove lawyers from the roll of the courts 'on a reasonable
cause and to prohibit practitioners not properly admitted and enrolled
from practising in the court'.' The Royal Charter of 1774 was, in course
of time,' extended to other two preside'ncies--Madras and Bombay-
which also came to have their own Supreme Courts in 1801 and 1823
respectively. All this indeed provided a great boost to the legal profession
which now stood as statutorily recognised. With this, the lawyers now
not only came to enjoy the tremendous prestige but also had handsome
earnings---a fact, which has been reported by Samuel Schmitthener'
rather dramatically.

1.7. It must, however, be brieﬂy made clear that the legal profession
continued to be fragmented in two different court-settings, that is, Mofus-
sil (comprised of two-tier system of courts, i.e., Mofussil and Sadar
Courts) and the Presidency Courts. Broadly stated, the Presidency Courts
followed the law, codiﬁed by the British in India, or formulations of
common law, and the Mofussil Courts by and large followed Hindu and
Mohammedan Law. Further, as against the completely British composi-
tion of the profession at the Presidencies, the profession at the Mofussil
Courts, at least till 1846, was exclusively Indian, that is, Hindus and
Muslims'. This divergence between two co-existent variance of profes-
sions at' two levels continued till 1858 when the British Government
superseded the Company and took direct charge of the colony. First, the
British brought about a consolidation of the Royal Courts with the
Company's Mofussil Courts. They established High Courts which were

at the apex of the new system. With the expansion of the Empire and .

larger areas being brought under the Queen's Domain, High Courts were
established at Allahabad (1880), Patna (1916) and Lahore (1919). The
whole point in detailing the evolution of legal profession in India during
the British time is meant to underscore that the said uniﬁcation greatly.
helped in universalising the professional ethos and also lent a certain

1-gjy"

collective character to the legal community. 'A n" ber of Indians were
attracted to this profession. Indian lawyers co ,d henceforth practise
side by side with their British counterparts and thus imbibe from them
such norms of professional conduct and practice as the latter had brought
with them as part of the British legal system.

1.8. The Indian legal profession proliferated as the western legal
system struck deeper roots in India. More and e Indians adopted law
as their career and started performing as we ngtheir British counter-
parts did. Barrister's qualiﬁcation had the _ _ tability of its own. A
large number of Indians started going to ' ., A n to get themselves
trained as barristers and then returned to practise in Indian courts.

1.9. Apart from the barristers and solicitors qualiﬁed in England, a
provision was made for appointment of vakils or native pleaders in the
Court of Civil Judicature. The Bengal Regulation VII of 1793 regulated
the appointment of vakils. It contained an e p 1;,' 'nary provision where-
by only Muslims and Hindus could be enrpll ' as pleaders. Later on, this
discrimination between various communities. was waived. Under the
Punjab Chief Courts Act, 1866 a provision was made that 'Any person
duly authorised by the Secretary of State' for India-in--Council to appear,

could plead or act on his behalf'?

1.10. Although the establishment of the Indian legal profession was

originally a case of 'transfer of a western institution' brought about by
a foreign power to meet the exigencies of its administration in India, it
soon assumed the leadership of national struggle for independence. The
profession played a stellar role in the movgxrent for independence. It
acquired its awareness because of its connection with British democratic
institutions through legal literature. The Indian National Congress which
led the movement for independence became the rallying ground for the
legal luminaries of the time, such as Gopal Krishan Gokhale, Lokmanya
Bal Gangadhar Tilak, Mahatama Gandhi, the Father of the Nation, Motilal
gehru, Chittaranjan Das, Dr." Rajendra Prasad, Sardar Vallabhai Patel,

ithalbhai Patel, Pandit J awaharlal Nehru and many others. Most of

them who survived occupied positions of eminence in» independent India.

1.11. It is uncontroverted that the members of the Indian legal profes-
sion occupied a vantage position in freedom movement. Members of the
legal profession acquired the respectability of being leaders of thought
and society. Participation of the members of the legal profession in the
then socio-political stream was also evidenced by growing participation
of Indians in the administration of various Provincial Legislative Councils
under the British Government's policy of granting limited Provincial
autonomy. Till the advent of freedom, it carmot be gainsaid that the
members of the legal profession occupied a vantage position.

1.12. Is that position maintained till today? In the post-independent
era, has the legal profession maintained and augnented its position as
leaders of thought and society ? If it has not, the causes of decay and
deterioration will have to be objectively analysed, not by the approach
of a hostile or carping critic but a sympathetic friend who was also a
member of the legal profession and who, by introspection, would like to
find out the causes and suggest remedies for restoration of the position
to that place of eminence and acquire its pristine glory. That, however,
would requirean extensive research and that is beyond the scope of this

report.

1.13. The report will concern itself with the role of the legal profes-
sion P-iris-a-vis administration of justice. As pointed out earlier, British
system of justice is adversarial in character and that system survives
till today. Adversarial system renders the position of a Judge to a passive
listener, a sort of an umpire in a game of. cricket, denying him the active
participatiqn in unravelling the truth. The members of the legal profes-
sion in adversarial system enjoy a position ofabsolute indispensability.

If he adversarial system is to continue since it is here for over 200 years
forfa further period of trial and érrbr, ;the role of the legal profession «in
mﬁing the adversarial systernif ' ' lly operational in the, proé,e$,pf
re ering justice will have to 'Fe 'f_; cyﬂgppreciated and if any

, have to be eliminated so that '

and drawbacks have develop;
ride in strengthening the system of

legal profession would render 'ass1
administration of justice.

' t 1.14. This approach needs tp the role of the legal profession
in trial' by adversarial system} gi ff, ratlistinction to inquisitorial's'ysteﬁ1
and that of the Judge opeﬁatrn t gsaiéie system with a view to r ' '''.
i'ng§ justice. Mr. Warran Burger he jset, the goal for both by saying " 1;
'Our constant purpose must be'to eep' in mind that the duty of lawyers
and, function of Judges is to deliver the best quality of justice at the least
costin; the shortest time'."' This is? the tespective role of. the lawyers and
Ju s. If role assigned to each is -préperly, adequately, sincerely arid
'e ' iently performed, the adverisaliilés 'tem against which pungent criti-
cisrti has been offered can still be relt 6 only on the ground of antiquity,
extending' over two centuries.' Hbwevir, s the criticism can be said largely
to be well-merited, the defectgdeﬁcie "cies and imperfections have to be
cured before a fresh lease of life can 'be? imparted to it. ' i

1.15. As some of the ugly features of the present justice delivery
system, namely, prolixity, high formalit , dilatoriness and expensiveness,
sur ac"ed, those connected with"ﬂ1e 'systesh attempted to unravel the 'causes
wh' hp generated these festering sores. Undoubtedly the whole
system' came under pungent When 'a system is cﬁti.
cised, its imperfections and dbﬁciéncies are highlighted. Onué
they are highlighted, the" 'séarﬁ turned towards unravelling» ':15;
ca_ "es for the same. Amonyt 'the "causes now preferred for:
tie y andstratiﬁcation of the ustibéi delivery system, some' are att" ':1.
table to 'the foreign nature of ;e syﬂkhj. But the fact should not be' lost
of that the system is in V6' ue over two centuries inithis ca'un'_-' _
To ome extent also it can be; ,aid,:1§;ii : " indigenized, though"its ovéllgl
pic' e remains British and, thetef " Q eign. Even the profession
dev loped as an integral part «if t 'sjQ§tem has also retained' in 'its
approach, sartorial signiﬁcance, 'alt addressing the court and' thié
colleagues, and the way of ascertaining the truth as in vogue in United
'Till very recently, exfen tlti jdesignations were imported', 'such
as arristers' and 'Solicitors': The language of the superior courtsvis
unquestionably English. Common 1'a.:w formulation are looked upon with
re"ve'rence. Therefore, a sizeable bodybﬂ Opinion has developed thatwsome
of the ills of the system are attributable to adversarial system. Evenein'
the', land of its birth, serious doubts are raised about the efficiency of the
system. ' '

1.16. Sir John Foster QC. reﬂectediupon the English legal system.
Says. he: I

"I think the whole English legal system is nonsense. I would go to
the report of it----the civil case between two private parties is a
...;.mimic battle in which the ~C1Ia;;lpiQ}1s are witnesses chosen by- each
side but who are not necgsaﬁly ' ople who know the facts. Ahd
. the battle is conducted accordiqglifto medieval rules of eviden e,.
There is no need for a QQC. .tq:,a§lways have plurnber's,mate. e
use of -juniors should be tailored -tp the demands of the case.
, legal aid is so vastly expensive jjqguse the system is so si1ly----ypu'
have to have everybody in 'court on the same day .... .. It is too easy
to persuade an English Court that black is white; it would be less

, easy if the arguments were presented in writing"."

Lsord,_Devlin, speaking about the legal methods in England, made a cryptic
obseﬂvation : i i

: "If our business methods .vqere,__ ticiuated as our legal methods, xte

-- should be a bankrupt countryl ¥h;ere is need for a comprehenslé
inquiry into the roots of our procedure, backed by a deteI'm1I13h°n
to adapt to ﬁt the conditions of the Welfare State"."

sun... . .

W"?

1.17. Justice Krishna Iyer, a former Judge of the Supreme Court of
India, evaluated adversary system as under:

"The adversary regime, a legacy of Anglo-American legal culture,
is splendid in principle in many res cts and is a victory in practice
for human rights, viewed historical with Star Chamber memory,
but is hostile to the actualisation of icouitjustice unless operational
innovations to conscientize, sensitize. and radicalize current judicial
methodology be creatively and crusadingly undertaken".'3

'In the final third of this century, We are still trying to operate the
courts with fundamentally the same basic nietliodg, the same procedures

d the same machinery' Roscoe Pound said,"wé_re not good enough in
1 06.-.In the supermarket age, we are trying "to operate the courts with
crackerbarrel 'corner grocer methods and :9 -iP§ments--~vintage 19001"
There is a body of Opinion that of all the ugy atures, the two most
important being prolixity and expensiveness are a tributable to the role
of legal profession-. This is not said in any derogatory sense but with a
View to pointing out where reform is possible.

1.18. While examining the role of legal profession in strengthening

administration of justice, these benchmarks Wilkhave to be kept in view.

, CHAPTER II

THE DEBATE

2.1._Ord1narily a group, class orcategory generally tries to safeguard
and defend its image and interests, nevertheless, in order to have 3
compreh€HSiV9 View of the problems related to profession, the Law Com-
mission considered it desirable to explore profession's own perceptions
on various issues, including its role in 'strengthening judiciary. The Law
Commission accordingly prepared a Questionnaire, annexed at Appendix I
and gave wide criculation to it. Every attempt was made to send the
Questionnaire to the organisations of the members of legal profession
such as Bar Councils and Bar Associations. Anyone interested in the sub-'
ject was invited to call for a copy of the Questionnaire The Questionnaire
was also sent to each High Court requesting the Registrar to bring 'the
same to the notice of the Chief Justice and J udgcs of High Court so as
to obtain a cross-sectional view. The questions were devised to focus
attention on various facets of legal profession, such as ;

(i) the state of profession and its public image;

(ii) p1'0feSSi0n's attitude towards the policy of social change intended
under the Constitution;

(iii) the functioning of the Bar'C0uncils and the question of discipli-
nary jurisdiction;

(iv) the strike by lawyers, its implications and fall out;

(V) the question of hobnobing between the Bar and politicians,
between the Bar and the Judiciary;

(vi) regulation and standardisation of fees chargeable by the mem-
bers of the profession in relation to the monopolistic character
of the profession.

2.2. Before the respo_nse to the Questionnaire is tabulated, the made-
quacy of the response of the organised Bar may be adverted to here. If
the Bar Council of India, the apex body of the organized Bar, had res-

- ponded to the Questionnaire and had shown willingness to have debate

and dialogue, the Law Commission would have extended every facility
for the same. In fact, Secretary of the Bar Council Trust, who was an
expert assisting the Law Commission in the matter of assessing, evaluat-
ing and, if need be, reforming the role of legal profession in strengthen-
ing the administration of justice, suggested that the Bar Council of India,
if some ﬁnancial assistance is forthcoming, would be willing to organise
a representative seminar to discuss the topic. The Law Commission seized
upon this opportunity and agreed to extend ﬁnancial help within the

parameters of its overall policy decision in this matter. Earlier, a sugges-

tion had also emanated from the Indian Law Institute, New Delhi, to
organise a seminar on the same subject in collaboration with the Law
Commission. So when the Secretary of the Bar Council Trust mooted
the idea of a seminar, the Law Commission suggested to him whether
all the three. namely, the Law Commission, Bar Council of India and
lndian Law Institute. can jointly organise the seminar. He said that it
would be the best thing to do. Accordingly, the Indian Law Institute was
informed to be a co--sponsor of the seminar. Later on, the Bar Council of
India had some reservations about the participation of academics repre-
sented by the Indian Law Institute and suggested that the Indian Law
Institute should not be a co-sponsor. The Bar Council of India also sug-
gested that it would alone organise a seminar without the ﬁnancial contri-
bution of the Law Commission. The dates of the seminar were ﬁxed. The
Law Commission had sent its contribution also. Ultimately, the Bar
Council of India, for the reasons which need not_be elaborated here,
returned the contribution made by the Law Commission, postponed the
seminar and never convened it. It also failed to submit its response to the
Questionnaire. The loss, of course, is of the Law Commission and the

Indian legal fraternity. -
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2.3. Total respondents to the Questionnaire were 36. A list of persons /
bodies who responded to the Questionnaire is annexed at Appendix 11
to this report. The tabulation is as under :--

Lexal Bar councils] High Judges Volunt A~ d '
Practitioners Associations Court bodies/my La emlcs
etc. Admn. oongumgfs
of justice
7 ll 2 6 6 4

Before the views expressed by the respondents are summarised, the grje-
vances against the Questionnaire may be summed up to avoid an unme-
rited criticism that critique of the Questionnaire is not h1gh11gmed_ The
Bombay Bar Association, while forwarding its responses to the Question-
naire, expressed its chagrin at the language and tenor of the questions,
feeling that 'the queries were framed in a populist manner with a pro-
nounced bias against the legal profession. It appears on a perusal of the
questions that the draftsman had already pre-determined some of
the issues therein. Some of the questions themselves were un-
clear, some had built-in assumption and some were illogical'. In order
to appreciate the merit of this criticism, the Law Commission has annexed
the Questionnaire as Appendix I to this report. Without commenting on
the 'views expressed, because the Law Commission cannot enter into
polemics with the Bombay Association as it started the 'debate to ascer-
tain the yiews, the Law Commission would leave it to the readers to
look at the questions and make their own assessment. One can only say
that the criticism lacks merit. Only one assertion may be made that the
tr°uth.,hu1'ts. But that is inevitable if introspection is a primary necessity
for salv ing the situation in which the profession vis-a-vis the society
is vie-we . The Ahrmedabad Bar Association, while responding to the
Questionnaire, expressed the feeling of the majority of the members that
'the innuendo emanating from the language and the frame of the ques-
tions is despicable and hence resented'. On the other hand, the Bihar Bar
Council expressed the opinion that, 'the Questionnaire is thought provok-
ing and if answers are forthcoming and are implemented, can accelerate
the pace of fulﬁlment of the goal of social change. It further stated that,
'it is true that contemporary legal profession has fallen in the popular
estimation, mainly because lawyers have grown up participating in public
activities. They have now become too self--centred and have concentrated
on earning money alone'. Further, it is stated that it is not 'denied that
the image of the legal profession in the country has gone down. The
factors 'contributing to the lowering of the image are manifo1d--some are
printable and some are not printable'. Bar Council of a State represents
the Bar of the State and one of its representative also sits on the Bar
Council of India. Muzaﬁarpur Bar Association in the State of Bihar has
expressed itself on this point by saying that 'the contemporary legal pro-
fession has fallen in the popular estimation because the economical gain
and beneﬁt has become their ﬁrst _goal due to economic upheaval and
devaluation of money, and their main role to assist in the administration
of justice has become subordinate to the said ﬁrst goal'. On the other hand,
the Bar Council of Punjab and Haryana has statedthat legal profession
has not fallen in the estimation of the general public. It may have fallen
in the estimation of the State as it may not have toed the line of the
State when it felt endangered'.

2.4. One Bar Council expressed an opinion that there 15 all r0uI'l_d
deterioration about the image of every limb of Governmentand the pri-
mary responsibility for this rests with the Executive Which d09S_ not
provide sufficient Judges and staff and does not enforce law or itself
indulges in lawlessness'. It was also stated that 'the fall of legal profession
in the popular estimation has its roots in overcrowding at the Bar, delay
in disposal of court cases and inaction and apathy on the part of the
Bar Council of India in observing its statutory duties towards legal pro-
fession'.

2.5. Before one adverts to the views expressed by persons other than-
members of legal profession, it 'must be stated that even amongst-"the;
bodies representing the legal profession there is a feeling that the legal:
profession has sunered devaluation in the estimation of the public. uf'
course, members of the legal profession would hesitate to accept this
impalatable fact. And obviously while stoutly denying this universally
accepted fact the organisation of the legal profession would cast a§'per-
sions on the Questionnaire which provoked the assertion. That is' how
the bonaﬁdes of those who drew up the Questionnaire have been ques-
tioned by at least two bodies which have been specifically set out here-
inabove.

2.6. The non-professional voluntary bodies have a different tale to
tell. One respondent stated that 'people are openly saying that.
the legal profession is no longer _ service-oriented that it is only
proiit--oriented, and that the lawyers are out only to squeeze the clients
to the maximum extent possible'. Another voluntary body devoted toil
providing legal aid to the needy women, opined in a similar reframi: that,
'the contemporary legal profession has fallen in the popular estimation?

because of the greed for monly, lengthening of the case for years together, _

for small reasons and even anging their loyalty to the other party for
the sake of money only. Sometimes, lawyers of both sides join hands to
make both the parties compromise even if the clients have to sufferthe
loss. lvlajority of the lawyers harass their clients for more and more fees,-,
false bills while not taking' the required interest in the case'. i " '

2.7. Some Judges of the High Court found time from their busy sbhe-év
dule to respond to the Questionna'n'e. nBy aptitude and temperament, they:
generally chart the middle couisezw-'I'hus, even though recognizing that!
'to some extent the present day profession has moved far from the
function of the legal profession to assist in rendering justice', it wassi
maintained in the same breath ﬂint 'though we cannot go to the extent.-
of saying that its present role is counterproductive, but a timely i-ntrosvi,»
pection and proper change are: of immediate necessity', By and
Judges were of the opinion :that'certain modiﬁcations in the Advocates
Act are desirable and should becavried out on the basis of responses to_.
the Questionnaire received. ' V V .«

2.8. The academics in general 'ten to perceive the problem of declin,-:
ing, standards of professional conduc , not as an isolate but in relaition
to other problems of society: P01ity and legal system. It is said :

"Legal profession by itself cannot be an impediment to the admini-3
stration of justice. It operatesias one of the components of the justice.
system and is subject to stresses and strains generated by other,
components. Technically speaking, dilatoriness and prolixity cannot:
be brought about by profession alone; other factors, such as attitude.
of the Judiciary, complexity of procedural and substantive law, deﬁ-2
ciencies in the system of legal education, equally impinge the
functioning of the system'. 'It is rather the failure of the tate to.
regulate the profession. than the grow quick rich propensitiesof the
members of the profession which has been responsible for the
existing state of affairs".
0

2.9. Still another academic states :

"We cannot say that legal profession is an impediment to justice.
The complex, technical and formal approach is mainly to .
justice because the jimtiee is ﬁltered through procedures and the

' consumer gets it clean and unbiased, It is not only the profession
but mainly it is Government which is responsible for delays because
it keeps the Judiciary understaifed".

lg!

guggestions, one! academic remarks :1

2:10; .While'is\1ggesting measures necessary $31.1-{"1-:e3;toring the lost self-

'festeem land pubge image of the profession, the, -aqademics repeatedly

' pighasise the ,ne'oessity of--(i) uplifting standards of legal education,
i1)VcapuﬁouS..Se1.ect1on of a.dV.0C3t€S on the part; of Bar Qouncils; and (iii) the
£918 t' _be played by the .ac.adem1c lawyers. On the. last of these three

"New _rn'_odalitTes need to be devised for interaction between acade-
mic lawyers and members of the profession. 'The Legal Education
Committee of the Bar Council of Inﬂiaishould be reorganised.
Representatives of the Committee shouldjhe selected from'institu-
tions well-known for excellence as also from outstanding academi-
cians who have made contribution to legal education".

» .-2.1}. Strike by lawyers has become a nauseating/ly recurring pheno-
menon. It is of recent origin, Strong views are held on either side whether
"';lEe!1béI'S>0f the legal profession can go -on strike or not and if they can,
-'what would be the justifying and compelling reasons and for what length
jofﬁme. In-the Questionnaire issued by the Law Commission, part of
question No. 4 "and ouestion No. 5 referred to recent strikes by the members
-of thelegal proﬁession in different parts of the country. Members of the
organised Bar with one voice supported theiright to strike. On the other
hatid. a number-of voluntary organisations, judges': of High Court and
individuals expressed the opinion that the lawyers have no right to go on

strike. f""

The High Court of Orissa expressed the View that members of
legal profession» should not go on strike. nor, should they resort to strike
in gunnorttof their demands or ventilatingltheir ances. Some Judges

2 !Jf..the~fI'Iigl;r.Co1i1'fs in their individual capa:city:.1;e's riding to the Ques-

I'ﬁiﬁnnaireyclea-Iflyyexbressed themselves against a. J e. The Bombay Bar

Association was of the view that the Bar shoiil 'fol low other means of
_ t-in keeping with its dignity and resort to strike only if no other
ilitioﬁ is possible. On the other hand. Ahmedabad Bar Association
'ﬂéirly express! itself in favour of legal nrofemion going on strike in
» sh' ' rt 'o'jf'the 'e ds coveted by the Bar. In between these extreme views,

for and against strike were expressed by lawyers responding in
'_ j thep;l1"'iy€;idivi'rIu"al-*_c,ap:icit:y. Voluntary organisatiom and others expressed
"'o'nii'.1ion that' ordinarily members of the: legal profession should not

"re§('5rt to strike because strike in the long run undeimviines the administra-
tion of justice. '
2.13. A local journalist in his column stated that :

' "Lawyers 'are the most organised community» in the country with
stdtutory Bar Councils, voluntary Bar Associations and a host of
-legal. soéi¢ti'es well-oiled with f11ndS'd61'iV_fed'2fI'OIn their licensed
fnonopoly to" run the legal business niprketrgpitjvided by courts and
tribiinals. All this power is of awesome propor ons for the ordinarv

771

citizen in Delhi. their strike raised some troublesome questions .
., _ lawyers' strike with reference to the irieidcnts' that occurred at

' 1

C ri Court in January-February 1988 led'a iournalist writing in

to ranark that 'lawyers' strike is delaying justice." By and
large, the print media showed little sympathy for the Ca11Se'0f the Strlke
or for the strike itself. A Jurist has expressed himself that the ,members
of the Bar proceeded on strike for maintaining the status quo.

2, Someztcauses of the strike may be examined in yiew of the
at there; are justifying and compelling ci_ms.$ for which the 'Bar,
itjit es not, resort to strike, would be failing in 385 duty. The Guiarat
High, e urt Bar.was on long strike on the 'groundriihajt the aC_t1l'1g Chlef
Justice was not conﬁrmed. The entire_Bar in the State of Gularat Went
on_ strike for a couple of months on the ground that-some of the persons
iiebomménded for elevation to the Bench by, the Chief Justice 'of the
High Court 'were not appointed by the Govergirnent. The Delhi Hlgh
Court Bar Association went on strike on the ground that the acting Chief

' should' have been appointed in a pe£!1nt.§i§flt,-{CaI§3¢itY- T,he repeat
"péifﬂriiénoe Wé when a district judge Wat --€19?§3¥d to the Hlgh C°"rt

over the head of his senior. The Allahabad High Court Bar Association
resorted to strike for a period of about 13 days in May 1980 when the
then Chief Justice initiated sevei'al"reforms in the administration of the
High Court, accusing the Chief Justice of 'massacring justice'. In';ftorvetn-
ber 1987, the members of the Delhi High Court Bar Association went -tm
strike in protest against the decision of the High Court to raise its pecu-
niary jurisdiction to ﬁve lakh rupees in respect of civil suits. This strike
dislocated the work in the High Court to the extent that more than 20
civil suits which were either to be decided or had been listed for record-
ing oi evidence on the ﬁrst two days of the strike would most probably
be coming up_ for hearing around 1991-92.' In January-February, 1988 ad-
vocates practising in all courts in the capital went on strike protesting
against handculiing of a lawyer by police and the two subsequent ind-
dents in which police allegedly resorted to lathi charge. Sometimes the
Bar so dominates the Bench as to subvert both the spirit and the text
of law seeking to achieve a modicum of expedition in trial.' About a few
days back, lawyers practising in Tis Hazari Courts in the capital revived
their strike which led Hindustan Times to comment editorially that the
lawyers, by their over reaction, have put the public into much inconve-
nience and they seem to be reluctant to change their line of action. The
paper exhorted the people to resist this attempt to dictate because, ac-
cording to it. lawyers in Delhi are setting a bad example to their commu-
nity in. the rest of the country.' The members of the Criminal Court Bar
Association, Ahmedabad, went "on strike on the ground that the powers
under sections 107 and 151 of the Code of Criminal Procedure are being
withdrawn from the Executive Magistrates and are being conferred upon

Commissioner of Police wherever a Police Commissioner is appointed.

for an area. Taking cue from their learned friends in Delhi over 17,000
advocates in Bombay and adjoining Thane district abstained from courts
to protest against police assault on a' lawyer and his reported handcufﬁng.'
It will thus appear that the causes which have provoked strike would
.leave one bewildered.

2.15. Analysing the responses, the ﬁrst thing that strikes us is that
by and large the members of the legal profession individually or through
organisations were unwilling to abdicate the right to strike which is
ﬁercely and self-righteously claimed. The right to strike is claimed as a
fundamental right, being a non-violent means of expressing protestto
the unjust and improper actions of the authorities. It was claimed that
if the right to strike is taken away from the lawyers, it will make the
lawyers impotent which will jeopardise Indian democracy. The contrary
View expressed in the debate needs mention :

"The lawyers, as a class, have come to believe that they are entitled
to special consideration distinct from ordinary citizens because
they have an access to courts and deal with the Judges direct, from
day to day. A succession of strikes which ended with the acceptance
by Government or the courts of their demands, has in effect, pro-
vided them with a clout, which they are now in a position to wield
to bring the judicial system to halt".

It was maintained by the members of the legal profession that the
strike is not against the court but against the actions of the Government.
But it was further claimed that if a member of the Judiciary is unfairly
treated, the Bar has a duty to show its resentment by resorting to strike.

2.16. Individuals who had something to do with the court and volun-
tary organisations by and large adversely commented upon the strike by
lawyers. It was said that it is not at all proper for the membersof the
Bar to go on Strike for any reason, including an unfair treatment of a
member of the Judiciary by the Government. It was £!e_I1eI'a11Y_m?mt3i"'
ed that the strike by lawyers caused irreparable and irreversiblelharm
only to litigants and. in the long run, weakens the system of administra-

tion of justice.

2.17. To recall, the Law Commission is examining the ?01e_ Of 19331
nrofession in strengthening the system of 'administration of ,l119'f1i¢- What
is the fallout of this recurring strike '.7 Available ﬁgures Indicate t_ at even
if. the strike. may be. from the p'o1.r?s_t Of V19W 9f the 19931 °r°ft%s"3"-by'-'
whollyjustiﬂed and for a eompeﬂing reason. it had at least 9 11 1°43

2 1 «.4?
'i

----&._._.. ,",_'*'i-ii .

distinction of piling up the arrears and the,-victims are the consumers of
justice, namely, litigants, whose cases could not be listed for hearing and
would not be listed for years to come. This can be substantiated by sta-
tistical information with regard to the piling up of arrears in the Supreme
Court of India and the Delhi High Court between 31-12-1987 and 30-6-1988,
during which period the lawyers almost in all courts in the capital were
on strike for a fairly long period. The pendency as on 31-12-1987 in the
Supreme Court of India was 1,75.748.7 The pendency as on 30-6-1988 1n 1}
the Supreme Court of India is 1.85.950." There is thus an increase of 10.202
in the backlog of cases in a period of six months. If previous graph of .
increase in pendency yearwise" is compared to the present ﬂfaoh. What
stares into the face is that this sudden rise is purely attributable to the
strike of the lawyers even in the Supreme' Court of India. Similarly, in
Delhi High Court where the lawyers were on strike. the pendency on
31-12-1987 was 77,444 and it rose to 82.712 on 30-6-1988." Latter ﬁgure does
not include cases which. though ﬁled, were awaiting registration. Can a
claim that the strike is for strengthening the administration of justice be
entertained in the face of these stark facts '.7 The irreducible minimum
which ﬂows from this situation. is that while not strengthening at any
rate the strike of lawyers weakens the system of administration of justice.

2.18. The next subject that elicited a ferocious debate with entren-
ched positions being taken on either side is with 'regard to the disciplinary
iurisdiction of the Bar Council over the members of the legal profession.
Question No. 11 of the Questionnaire invited a debate on the disciplinary
iurisdiction over the members of the Bar. The question was framed keen-
ing in view the accountability of the profession to the consumer of its
service. A view was expressed that the transfer of disciplinary jurisdic-
tion to the Bar Council has weakened the control over the members of
the Bar and. therefore, attempt must be made to examine whether the

.. jurisdiction should be" retransferred to the'High Court.

2.19. Before Chapter V of the Advocates Act. 1961 came into force,
the disciplinary jurisdiction over the members of the Bar vested in the
High Court under the repealed sections 10 to 13 of the Indian Bar Councils
Act. 1926. There was a demand for what is called Peer's justice which led
to the conferment of disciplinary jurisdiction on the Bar Council. simul-
taneously extinguishing the jurisdiction of the High Court. The debate
revealedirreconciliable positions between those who are enjoying the
jurisdictions and those who desire a change. The Bar Councils generally
were wholly opposed to any change in disciplinary jurisdiction; on the
other hand. the Judges Strongly felt that disciplinary jurisdiction of the
High Courts should be restored. The individuals who responded to the
Questionnaire and some voluntary organisations were in favour of res-
toring the disciplinary iurisdiction of the High Courts. One voluntary or-
ganisation asserted that. 'most of the matters pending before the Disci-
plinary Committees of the Bar Councils are the complaints by the liti-
gants against their advocates. That such complaints are at present eva-
luated and decided by the professional brothers of the accused is by
itself ironic and strange'. One reason. why Bar Councils are not geared
up, the way they ought to be, is that. 'criticisms of the Bar Councils and
Bar is absent because people are afraid of this pressure group, even
Judges are afraid of them. then how can any individual dare to do it'.
This was the view expressed bv another voluntary organisation. A sug-
gestion was made by a third voluntarv organisation that in order to 'con-
fer credibilitv on the Disciplinary Committee of the Bar Council. the
complainant should be empowered either to be a member of the Discipli-
nary Committee or to nominate his representative on the Disciplinary
Committee.

2.20. The Law Commission had the expert assistance of an academe
who. for long number of years. was closely associated with the Bar
Council of India. His View is :

"Closely related to the above issue is the lack of adeouate enforce-
ment of professional discipline and standards of ethical conduct. A
Verv few people outside the profession are aware of the existing
system of punishing erring advocates. Peer Group Justice has not
been a success if one were to go by the statistics of violations and

» Ci.'-:.~_a

12-

the extent of indiscipline often nnotviced among the advocates'.?Puni'

had to be corrected by tlid Supreme Court." The cases are not ptibi-"

shmen.ts administered are said to be too mild which in many cases

licised and the public are in dark about the misdeeds of

lawyers on whom they depend-for' their life, liberty and property;
A number of unholy practices, such as 'Bench ﬁxation', fee sharing,'
etc., are not even recognised as unethical conduct inviting discipli'-_
nary jurisdiction. Besides, strike and boycott of courts at State ahd'
local levels have become a regular feature with the advocates who
are geﬁzing unionised on political and regional grounds. The tond
hope of the All--In.dia Bar Committee for an integrated Bar with
high professional standards is steadily being eroded by the actions
and omissions of a certain section of the advocates themselves .... ..
The situation call for a revision of the rules of professional conduct
and etiquettes keeping in mind not only the interests of the mem-
bers of the profession but also those of the litigating public
Supervisory role of the High Courts on disciplinary matters may
-have to be revived at least in a limited manner to enforce accoun-
tability from recalcitrant members of the Bar".

2.21. It is undoubtedly true that section 38 of the Advocates ACt';COnr
fers appellate jurisdiction on the Supreme Court of India over the deci-
sion of the Disciplinary Committee of the Bar Council of India at the
instance of any person aggrieved by the same or at the instance of the
Attorney General of India or the Advocate General of the concerned
State, as the case may be. The appellate jurisdiction inheres the power
to vary the punishment which has been interpreted to include the power
to enhance the punishment also. It is' for consideration Whether this
jurisdiction is sufficient to allay the a prehension of the litigating public
about the outcome of peer's justice. Itis equally necessary to examine-this
aspect from the point of View of the accountability of the profession,
amongst others, to the litigants.

. 2.22. One more facet of the tdebpte which needs to be examined has
reference to the mounting cost of litigation which litigants have to beer

at, present." In the present context, thevaspect is examined with regard'
to,,on,ly one limb of it, namely, 1awyer's fees. Question No. 14 in. the'

Q ionnaire was 'whether it waeredesirable to have a lstandardised

schejule of fees that would beehargcdby the lawyers from the clients'

If the, view favours such a standardisation, a request was made' for
suggesting a method for enforcing the same.

2.23. The trend is not in favour of standardisation of fees. The view
varied from it being desirable but "not practicable 'because the cost of
living and the standards of livlrig differ not only from man to man
from Iocalityto locality also', on thfeother hand, it was stated that, 'the
need to have a standardised sciieduleofjfees that may be charged from
clients is being largely felt but it isi tant to arrive at a schedule
of fées and to enforce it'. One State ' ar Council was of the opinion
that such a measure, if adopted, would; give rise to greater corruption
and encourage the growth of black money. Voluntary organisations. {on
the other hand, suggested that they or hra-legal bodies should be given
due encouragement to appear in the dburt to render assistance to the
needy for 'legal services. The voluntary bodies working in the field of

' legalaid to the needy favoured standardisation of fees pavable to lawyers,

In ﬁadfig the schedule of fees. it was recommended that it must be
done: after consultation with the organised bodies of legal profession.
There should be a committee to which alone the fee will be paidjand
the committee will render account to the lawyer.

2.24. Though it is difficult to quote anv single speciﬁc instance. the
fees charged by some senior advocates are astronomical in character.
And it so happens that the corporate sector is willing to retain talent
at a very high cost. The payment thus develops into a culture and it

permeates down below. Undoubtedly a schedule of fees has been drawn'?

no by the Bar Council of India but the views expressed to the Law
Commission would reveal that nobody takes note of it. It is not merely
the ittemot to prescribe standardisati of fees but the enforcement
mac 'inery that would become irioropizavant.

V ; : ; I 1 T :'.?''_'.'.i;

.A E
4. , i '

I
t
.;;~2g
2.4; ..%i::;;»;3 .

'H-

,,,_

CHAPTER' III' '

CONCLUSIONS AND. RECOMMENDATIONS'

3.1. Legal profession enjoys on the one hand uninhibited (Eulogy and
on. the; other. hand no holds barred condenigiation. Free from either,
objectively and dispassionately, the role of. legal profession may be
examined with a view to making its role. justice and people oriented;

3.2..Socialists and éliialysists. have found something in the. atmos-
phere,of. the-. law schools. which tendzto pmduce a ﬁnished product. which
is. impervious to. change. Charles R€lCh.ii'2 this. context said,

"Finding themselves in law school ....... .. (students) discover that
they. are expected to become _:'argumentative' personalities who
listen to what someone is saying only for the purpose of' disagreeing;
'analytic' rather than receptive people, who dominate information
rather than respond it; and intensely. competitive and self-assertive
as.well. Since many of them are not sort of personality before
they start law School, they neact initially with anﬁr and despair,
and later. with resignation .... In a. very real sense, they 'become
stupider' during. law school, as the. range. of their. imagination, is
limited; their ability to respond. with sensitivity and to receive

impressionsis reduced, and the scope. of. their. reading and thinking.

is progressively narrowed!"

3.3: This led George Bernard Shah tmquip that, "All professionsare
conspiracies against the laity....... In a society' where justice, in theory. at
least, is- held up as the highest ideal, lawyers", it is said, "are always
looking for technical and sometimesdubious means of bending the, law
to their advaiitage."-' The criticism against. the profession is. as. old. as
the profession itself. William Shak-espearevsaid that 'the first thing, to do,
let us'ki1l- all the lawyers'.

3.4. Abjuring this criticism, in our country, the role of legal profes-
sion has.to be assesed in the context of the constitutional mandate as set
out in. article 39A of the CCnstitutiCn_ It is the duty of the State tosecure
that the operation of the legal system promotes justice, on a basis of
equal opportunity, and shall, in partic'ula'r, provide free legal' aid,' by
suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason
of economic or. other disabilities? The role of legal profession in streng-

. thening administration of justice must be inconsonance with the intend-

merit underlying article 39A. In other words, in an adversary system' as
[11 vogue in. law courts being the fulcrum. of administration of justice,
the role-of legal profession must ensure eqiial opportunity to all litigants
in seamh..o£ justice. In the process. opportunity for securing justice should
not berdenied to any citizen by reason offeconomic or other disabilities.
Legal prqfession is expected to ensure that "anyone who has not the econo-
midwherewithal to seek justice must not' turn away from law courts on
the only ground that he is unable to incur. necessary expenditure' for
securing justice. Equally important is the fact that social disabilities
should not. deny access to centres of justice of which legal profession IS
anintegml and inseparable adjunct. The State, which has conferred a
monopoly; on the legal profession by permitting it to regulate its OWII
admission, qualiﬁcation for admission and be the regulator of its own
internal: discipline, should so conduotgitselfi as affording every facility for
seeuring jutice. To discharge this obligation" the legal profession must
make"its.-sservices available to those needy who otherwise cannot afford
to pay the cost of legal services. Costs as.a_l.so.thei_r. other social disabilities
may noteome in the way of legal profession 'assisting such persons from
securing, justice. The profession must develop its own. public sector.

ss-L/J(N)1siMofLJ&oA--'2 13

Brieﬂy stated, ways and means must be devised so that the profession
plays a meaningful role in promoting the quality of Justice and to bring
about such changes in society as are in oonsonance with the egalitarian
goals, to which we are committed both constitutionally as also as our
poncy 0bJeC1',1v€S. Within these parameters, the role of legal profession in
strengthening administration of justice must be spelt out.

3.5. Monopoly is resented by the society because consumers of the
monopoly can be held to ransom in the absence of availability of alter-
native services, A monopoly without a liability of accountabiiityis likely
to iead to tyranny, 11; 1S unquestionable that legal profession is mono-
polistic in character. This does not needelaboration. lf the profession is
monopolistic in character, it must be accountable to the consumers. of its
services and let the consumer class be not narrowed down only to litigants.
Even the court system of which it is an integral part can be said to be
the consumer of its service. 'l'herefore, apart I1'0m the wider concept of
accountability of monopolistic profession to the society at large, there
mus; be ways and means of making the legal profession accountable to
the litigants and the court system.

The legal profession continues to be central to the socio--politicai
domain of the lrtoian society, its structure as well as process tend either
to change or sﬂstain the existing order of things. iviembers of the legal
profession constitute' the single largest group In' Harliament which is
vested with the task of taking the most vital decisions aitecting the
present and future of the Indian nation. It can, therefore, be stated with
coniidence that they do exercise the single largest iniiuence over the
national life. The members of the legal profession can, therefore, have
a decisive voice in law-making. Therefore, they can also promote the
quality of justice by so shaping the laws as would advance justice. It is
true that the professional bodies of the members of the legal profession
are sensitive to criticism because some of them viewed the Questionnaire
of the Law commission as motivated. Even in the matter of strike, the
members of the profession asserted that right to strike is beyond question.
An impression is likely to be formed that the members of the profession
are keen. to guard their own interests notwithstanding the fact that by
their attitude sometimes public good is impaired, The profession must
maintain the difference between profession and guild or business.

3.7. Therefore, the question must be posed : 'What can the organised
profession do at their level individually and collectively to promote the
quality of justice ? The answer lies in the intendment underlying article
39A.'

3.8. It is unquestionable that in any organised profession, there are
bound to be some persons Who are unable to maintain the high standard
of profession. In some cases, evidence reveals a sordid state of aifairs in
lawyer-client relationship. This itself cannot be sufficient to condemn the
profession as a whole but this aspect cannot be ignored also. It is here
the question of accountability of the profession» to the litigant and system
comes to fore. The leaders of the Bar must show a deliberate concern
with the fate of the poor and the indigent by volunteering to take up
their cases in courts of law. They must also take up the role of questioning
the 'credentials of persons who do not maintain high professional standards,
its accountability by introspection or by internal regulation of the pro-
fession. It must submit itself to social audit. It is too much to expect a
litigant coming from rural areas to understand what is expected of his
lawyer and to complain against him if 'he feels cheated and thereafter
to prosecute his complaint before the Bar Council. It is for the profession
to provide a self-regulating mechanism whereby it takes notice of an
errant lawyer and deals with him without anyone coming forward to lay
a complaint. This would be its first and foremost task, namely, to perform
its duties both towards the profession and the wider society. Maintenance
of the irreducible minimum standards of profession cannot be left to
members of the society complaining against an.yone. That is a tall order.
Accountability can be provided for by a self-regulating mechanism. This
must also include an improper or unprofessional behaviour in the court

1 that would be impairing the system.

3.9. The foremost requirement of the present day is to reclaim the
glory of the profession. No doubt there are some sociologists who believe

'that the prestige of the legal profession since the independence has not

declined. It is said that "a perusal of facts available suggests that thg
public position of Indian lawyers _has not declined after independence.
of course, he reaches this conclusion by asserting that the lawyers had
prestige in the context of anticolonial struggle not as professionals but as
freedom ﬁghters. Not that some of them did not enjoy lucrative practice;
but they were venerated by the people precisely for giving up the same,
for altruism they demonstrated!" On the other hand, the role of the
profession in independence movement is eulogised by asserting that the
profession had pragmatic and dynamic participation in the socio-political
history of the past two centuries but as against this backdrop, the present
times present a picture of contrast." In the year 1958, a' ﬁnding was based
on the evidence collected by the Law Commission that "There is a fall
in eliiciency and standards at the Bar. The recent recruit to the profession
is said to be inferior in his legal equipment, less pain-staking and in a
hurry to find work".' Three decades after, a leading Gujarati daily des-
cribed the members of the legal profession in its editorial columns as
Icajiya dalals (dispute brokers)?" The editor went on to state that the
members of the legal profession have been encouraging litigation more
and more by giving impetus to disputes.

3.10. By a concerted action to be taken by the organisation of legal
profession, a serious attempt should be made to erase this picture of the
profession even if it is in the minds of few. Every step has to be taken
to restore the respectability and credibility of the profession not only
in the eyes of the society but even the litigating public.

3.11. Therefore, the ﬁrst step that is required to be taken is not to
encourage litigation but to reduce litigation. The role of the legal pro-
fession is to resolve disputes and only in the last resort the matter should
be permitted to go to court. "Disc0urage litigation. Persuade your neigh-
bours to compromise whenever you can. Point out to them how the
nominal winner is often a real loser-in. fees, expenses and Waste of time.
As a peace-maker, the lawyer has a superior opportunity of being a good
man. There will be business enough."° The role of the lawyer is clearly
spelt out here. From the accusation that the lawyers perpetuate disputes,
the members of the profession must undertake discouraging litigation,
persuade parties to compromise, and impress upon the parties how futile

lS the litigation. There could not have been a better summing up of the
role of lawyers.

3.12. This very aspect has been put/in a different form when it is

said that the slogan of the members of legal profession should be 'arbi-
trate, don't litigate'. Undoubtedly, there is a body of opinion that arbitra-
tion proceedings may be disastrous in character." This extreme statement
even about arbitration proceedings need not discourage the members of
the legal profession because arbitration as a mode of resolution of disputes
by a Judge of the choice of the parties was considered preferable to
adjudication of disputes by courts. Viewed from this angle, it has already
been recommended that as soon as a notice making a claim is served,
the other side should nominate a lawyer and both the lawyers should
meet and try to resolve the dispute or narrow down the area of conﬂict
and this will be their both statutory and professional obligation." And
this approach enhances the role of the legal profession and affords it a
vital role at the most preliminary stage even before the courts step in

to resolve the dispute and thereby to eliminate litigation,

3.13. There is widespread belief, both among the litigating public and
legislators, that intervention of lawyers in court proceedings have the
built-in tendency to delay the disposal of cases. In other words, the
dilatoriness and prolixity of the proceedings in the court are being attri-
buted to the members of the legal profession. Expeditions resolution of
disputes is one of the fundamental requirements :of any effective and
efiicient system of administration of justice. Today, unquestionably, the

v.-f-i-.~u.aw,«-.r.:mv-ivwvn-~x~<

3.16. For a positive check, while deciding the cost quantum to be
pointing out that the cases in the Supreme Court are pending from 1968
onwards and in this year they have become two decades old. Even
criminal appeals of 1975 are pending in the Supreme Court. Similarly,
in the 18 High Courts, 30,970 civil cases and 615 criminal cases over 10
years old are pending as on 1-1-1987." Can anyone be expected to wait
for a generation in search of justice ? Any system which delays disposal
of cases or resolution of disputes over decades can be said to have outlived
its utility. The system may need basic Changes but, without minimising
and law were raised, the same must enter the verdict and quantify the
time spent in resolution of disputes,

3.14. lt is an oft-repeated suggestion that the lawyers must be ex-
cluded from appearing before certain tribunals and certain types of cases.
This is sought to be justified by reference to a provision like sub-section
(3) of section 36 of the Industrial Disputes Act, 1947, which provides that
no party to a dispute shall be entitled to be represented by a legal practj-
tioiier in any conciliation proceeding under the Act or in any proceeding
before a court. There are similar provisions in some other statutes, more
especially statutes dealing with agrarian reforms. The Law Commission
does not subscribe to this view. Appearance of the members of the legal
profession provides a healthy check on the angular behaviour of the
presiding Judges. The presiding Judges may be able to control the
members of the legal profession and vice versa, The role is complementary.
The experience of excluding members of the legal profession from
appearing in certain proceedings has neither contributed to the expeditious
disposal of cases nor to a more satisfactory solution of disputes. Therefore,
exclusion is not the answer. The accountability of the members of the
legal profession, while appearing in proceedings and dealing with the
same, will provide a healthy check on the possible dilatory tactics some-
times resorted to in some need--based litigation, such as a position of a
tenant under the Rent Act who is under a threat of eviction or the position
of an employer wh-en a dismissed employee is likely to be reinstated. Even
here, the dilatory tactics should be completely eschewed_ And, for this
purpose, the hands of the presiding officers should be strengthened by
appropriate provisions so that this tendency to delay the disposal of the
cases may be effectively controlled.

3.15. Another tendency which has become very recently. visible,
especially where pleadings are drawn up for Mofussil Courts, is to raise
all and sundry, frivolous and untenable points of facts and law. It would
be ditiicult to come across a single pleading in the l\/lOfuSSll Court where
a dispute as to court fees and as to limitation is never raised. They are
the standard defences, This is at"tributable to excessive dependence on
seniors as well as pai'a.--pl'olessionals by the new entrants into the pro-
fession Who are trained in the old worn out methods of drawing up
pleadings. 'In the first case it is often oppressive and in the second case
it is invariably degrading to the new entrants. In either event, to become
independent from this occupational cobwebs, the new entrant into the
legal pofession has to have a long gestation period.'"' Longer the gestation
period, the fear that he will absorb all the worn out techniques of the
prolession becomes real. it is, therefore, necessary for the Bar Council to
provide for a training period before being enrolled as a lawyer for the
new entrants to the profession in subjects of drafting, cross-examination,
court manners and making precise and accurate statements before the
court." Some of those subjects meant for training of judicial officers can
be well adopted for training the new entrants to the profession.

..,.16. For a positive check. while deciding the cost quantum to be
awarded one way or the other. the presiding Judge must also certify
whether untenable and frivolous defences were raised, necessitating
fiaining oi' the issues on which parties were at V'£'.|'l£ll1C(} and the time
spe';'i'r. in recordiiig (lcci>:i«'>iis on them. If the picsicliiig Judge is satisfied
that such irivolous and totally untenable defences with regard to facts
and law were raised, the same must enter the verdict and quantify the
costs to be awarded.

..~,«..,.~..
i Vu

3.17. Recording of oral evidence consumes too much time. It is often
noticed that large number oi' witnesses are examined on the same point,
the cross--examination 1S prolix, rambling, partaking the character of a
fishing expedition. l\/lultipiicity of witnesses on the same point, 'coupled
with cross-examination by way of rambling ﬁshing inquiry, accounts for
consumption of courts valuable time to a considerable extent. This area
is referred to here because the members of the legal profession in adver-
sary system can contribute in not only improving the situation but re-
moving the malaise. A duty must be cast on lawyers, if need be by a
statute, to decide how many witnesses are required to be examined
Equally the cross-examination must be pointed and limited to speciﬁc
inquiry. One more improvement can be made by lawyers in this area by
agreeing to get the evidence recorded by a Court Commissioner. How can
this be achieved has been fully examined earlier and it is not necessary
to reproduce the approach of the Law Commission in this behalf."

3.18. The next point that the members of the legal profession can
assist effectively is the s'«.age where summing up of the case 1S undertaken
after the evidence is l'€C<)l'UL(l. Oral arguments are heard for days on end.
Once the argument is ad,iour.ned to another day, repetition becomes
unavoidable. Again this stage consumes valuable time of the court. And
it is avoidable. The arguments must be addressed on speciﬁc points which
must be submitted to the court in advance; only minor elaboration may
be permitted; time for listening the arguments on each side can. be fixed
in advance; both the parties must be given right to submit written sub-
missions and this is the area where lawyers alone can contribute to the
speedy and expeditious disposal of trial. An innovation in this behalf, if
need be by a provision in the Code of Civil Procedure, is overdue.

3.19. The last stage where the lawyers can contribute eilectively is
the exercise of the right to appeal. There is a feeling that sometimes the
iparty which loses the action is encouraged by the lawyer out of his
deﬂated ego on account of loss to prefer an appeal. In fact, the lawyer
of the losing party is the best Judge whether there is any merit in his
case and whether the Judge of the trial court has committed a reversible
error and that appeal will advance the cause of justice. He has to examine
this aspect dispassiontately and. he must honestly and sincerely advise
whether to appeal or not to appeal. if he Op'il'1€S that the case is not good
for appeal, any other member of the profession, if approached, should
enquire from the trial lawyer what opinion he has given. If the other
lawyer differs, he should have valid grounds in support of his conclusion
Otherwise, the client must be discouraged from preferring an appeal.

3.20. The features of tire trial herein discussed are those in which
apart from the litigants, the lawyers alone have a role to play. Therefore,
while examining the role of legal profession in strengthening administra-
tion of justice, these features are rcl'crred to here. if the lawyers play
a positive, constructive and creative role in the areas herein discussed.
they would be establishing their accountability both to the litigant and
to the system.

3.21. As pointed out earlier, a time has come when, as the system is
under such a stress that it is likely to collapse, alternative modes of
resolution of disputes must be seriously explored. One such mode which
the Law Commission has examined and already recommended is prc-trial
conciliation proceedings. it is the lawyers appearing on either side who
can encourage the client to agree to refer the matter to the Conciliation
Court. The Law Commission has already recommended setting up of such
Conciliation Courts in all urban areas. A Conciliation Court scheme has
been devised by the Chief Justice of the Himachal Pradesh High Court.
The same has been anneexd as Appendix V to the earlier report of the
Law Commission." Further. the \\'l'10le scheme has been discussed in
detail." The success of the scheme wholly depends upon the members of
the legal profession assisting the parties in adversarial system.

""V¢vﬁ"r-PS3,' ...i \.

4.... ,

322. It has been pointed out repeatedly that legal profession is
monopolistic in character. A monopoly tends to be impervious to the
consumers of its service. Why the profession is called a monopoiy.p1'o--
fession need not be discussed here; only two saiientrfeatures which make
it aimonopoly may be referred to. The members or the profession haV€
a power to regulate admission to the profession and they alone, save in
rare cases where the court permits someone else to appeal' and Pl9ad_1_n
courts, have the right to appear and_ plead cases in. courts. It can decide

charges for its services. Therefore, it cannot be gainsaid that the pro-

fession is monopolistic in character.

3.23. Monopolies are generally frowned upon. Monopoly abjures
competition. Absence of competition tends to adversely affect the'services
rendered by the monopoly. Competition in a niaiiiet economy. guarantees
both the price and the quality. Monopoly foreswears competition.

3.24. Article l9(l)(g) guarantees to a citizen the right to practise
any profession, or to carry on "any occupation, trade or business. This
right is subject to the reasonable I'eStI'iCt10n that can be imposed under
clause (6) of article 19. As clause (6) was originally drafted, a question
arose whether the Union or the State Legislature was competent to
pass law in regard to commercial and industrial monopolies. '.L'he State
of U.P. set up a monopoly of transport for operating bus services under
the name and style of Government Roadways'. Tms 'action was chal-
lenged and the Allahabad High Court struck it down as unconstitutional,
holding that such a monopoly totally deprived the citizens or their rights
under article l9(l)(g). By the Constitution (First Amendment) Act, 1951,
clause (6) of article 19 was amended to confer power on the State,
either by itself or by a Corporation owned and controlled by the State
to carry on any trade, business, industry or service, whether to the
exclusion, complete or partial, of citizensor otherwise. After this amend-
ment, it was again contended before the Supreme Court that the amend-
ment made in clause (6) has not the effect to exempt the law passed
from creating a State monopoly from application of the rule prescribed
by the ﬁrst part of article 19(6)." Upholding largely the validity of the
legislation, namely, Orissa Kendu Leave (COl11;I'Ol of Trade) Act, 1961,
the Court observed that the essential attributes of the law creating a
monopoly will vary with the nature of the trade or business in which
the monopoly is created. They will depend upon the nature of the
commodity, the nature of commerce in Wﬂich it IS involved and several
other circumstances. The purpose of this discussion is to point out that
monopoly has the inbuilt tendency to abuse its position. If legal pro-
fession is monopolistic in character, as it unquestionably is, provision
has to be made to free it from the possible abuse. Accountably would
be check on abuse.

3.25. What constitutes accountability especially in or in relation to
legal profession'? Ol'(ll.ll&-ll'lly,' accountability is confined to professional
ethics, discipline and professional regulation. There is, however. a body
of opinion that accountability of legal profession has a broader spectrum
than mere ethics. discipline and regulation. It inheres public perception
of professional responsibility and professional response to such public
perception. It also concerns itself with public expectation aroused by
professional services. In the context of legal profession, constitutional
goalsand the role of legal profession in achieving the same would also
constitute a parameter of accountability. In short, the determinant is
the involvement of professional interest with public interest and their
ultimate C0inCid_€nC€'-1" In thus specifying the parameters of accountabi-
lity, it was noticed that 'the movement of all professions, hitherto has
been from chaos to organisation, organisation to consolidation and
consolidation to autonomy and monopoly'. On achieving the monopolistic
status, a general outcry against it is heard. 'It is said that they are
execlusive; they are elitist: they do not represent the people; they show
no concern evenlor the basic problems of the people. Their contribution
to society is minimal. Lawyers and Judges, doctors and surgeons, working
and non-working journalists, teaching and non-teaching teacher from

a holy alliance to intimidate any layman presumptuous or foolish enough
to enter into a dialogue with them .... .. People are slowly fed up of
the professions and there has now emerged a demand for accountabi-
1i1;y,"~'° Recalling the famous statement of Jimmy Carter. the former
President of' United States of America, that 'lawyers as a profession
have resisted both social change and economic reform', it was said that
'the Bar must remember that its members must make out a P_1-tma facze
case for the monopoly it enjoys and reorganise theprofession into a
public sector which ensures human rights and remedies against human
wrongs to the weakest and the protestant. 'Public law demands of public
profession public commitments in public interest and disrobes it of its
mistakes."

3.26. To some extent, disciplinary jurisdiction. over the errant
members of the profession may provide a corrective against monopoly.
As pointed out earlier, disciplinary jurisdiction, till Chapter V of the
Advocates Act, 1961 came into force. vested in the High Court under
sec_tions 10 and 13 of the Indian Bar Councils Act, 1926. While 'discussing
the debate. it has in terms been pointed out that the peer's justice system
is far from eifective. That is. not only the view of the consumers of
services of legal. profession but even some experts closely associated
with the functioning of the Bar Council of India, It is, therefore, time
to have a second look at the disciplinary juristiction enjoyed by the
members of the profession itself, Without attempting to introduce any
far-reaching change. the High Court must be invested with suo motu
power to review the decisions of the Disciplinary Committee of the Bar
Council of State. Either the High Court should be invested with jurisdic-
tion to do it suo motu or at the instance of the complainant. An appeal
to the Bar Council of India and a further appeal to the Supreme Court
of India is beyond the reach of many indigenous litigants. Therefore,
a step of minor signiﬁcance should be taken by investing jurisdiction in
the High Court suo mom to review the decision. of the Disciplinary
Committee of the Bar Council of the State or the power must be
exercised at the instance of the complainant or at the instance of the
Advocate General of the State.

3.27. On the vexed question of strike. having given earnest consider-
stion to all the arguments for and against. it can be said that the members
of the legal profession not in general but with speciﬁc reference to

'ventilate their Erievances or in support of some causes held dear by

them. At any rate, any strike on the supposed ill-treatment of a member
of the Judiciary must be wholly avoided because it has the pernicious:
tendency of eating into the vitals of the independence of the Judiciary.
Tt is too obvious to need spelling out. One may spellout a rare cause
on which the strike is iustiﬁed but it must be treated as the weapon
of last resort. If the administrative side of the court creates serious
difficulties in the way of the members of the legal profession practising
in the court and these are remediable. the members of the profession
practising in the court should highlight the ditiiculties and bring them
to the notice of the presiding Judge. informing him that these are
remediable problems. On such information being laid with the presiding
Judge, immediate steps should be taken to convene :1 meeting of the
representatives of the Bar and of the presiding Judge and to undertake
deliberations and dialogue to find out the solution. If the presiding Judge
or the administrative side of the court turns deaf ears to the diﬁiculties
experienced by the members of the profession which have been brought
to the notice of the administration. an intimation may be given that, as
a matter of last resort, strike would be resorted to. Save this exceptional
area. the strike by the members of the legal profession on the gF011Y1d
of their dispute with police. other administrative deparﬁnerlts 01' 501119
other grievances not attributable to the court administration must be
wholly eschewed. This is suggested in the larger interest of the con-

sumers of the service of legal profession the harassed Victims 05 th'?
strike '

3.28. No one can seriously question, though evidence of a concrete
nature is hard to come by for reasons not difficult to foresee, that the
fees charged have reached astronomical ﬁgures. There may be a class of
litigants who can afford the same. But that microscopic minority class
need not destroy the culture of legal profession nor the market of fees.
If legal profession enjoys a monopoly through a statute passed by
Parliament, it is the duty of the Parliament to prescribe fees for the
services rendered by members of the legal profession, The profession
cannot merely have privileges and no obligations. It is time, therefore,
to take a first step to prescribe the floor and ceiling in fees. The organised
Bar must have administrative department where the client can go, pay

the prescribed fees and seek the assistance of a lawyer. Therefore, there '

is no negotiation for fees and nothing more is payable. It is not for a
moment suggested that some revolutionary suggestion is being pressed
into service. Look around and there are countries where this system is
in vogue."

3.29. An additional limb in support of the recommendation that the
fees chargeable by the members of the legal profession for their services
must be standardised within the ﬂoor and the ceiling is that, according
to the representatives of the organised profession. a large number of
lawyers are unable to earn minimum to keep body and soul together.
The representatives of the organised Bar approached the Government
of India for enacting a legislation to set up Advocates Welfare Fund."
The Government of India appointed a Committee under the chairperson-
ship of retired Judge of the Supreme Court of India and Member of
the Rajya Sabha, Mr. Justice Baharul Islam, The Committee has sub-
mitted its report recommending setting up of the Fund as well as the
method of funding the Fund. The Committee has also drawn up a model
Bill that may be moved in the Parliament. If this is the assistance which
members of the legal profession seek from Parliament. it is equally
their dutyto accept the power of the Parliament to prescribe fees, beyond
which no one can charge.

3.30. Closely allied to the question of prescribing the ﬂoor and ceiling
in fees chargeable by members of the legal profession for rendering
service to litigants is the question of providing totally free service to a
Class Of litigants Who are unable even to pay the minimum of fees. The
philosophy underlying article 39A of the Constitution has to be trans-
lated into an action--oriented programme. Even if the ceiling and ﬂoor
in fees are prescribed. there will still be members of our society who
would suffer denial of justice because they can il1--afford the fees payable
to the legal profession. The fee would be a barrier to access to justice.

Article 39A was a promise to them, when it was said that the State .

shall ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other, disabilities, If such seekers of
justice who cannot even afford to pay the minimum fees would suffer
denial of justice on account of economic disability. article 39A would
stand violated. To make effective the intendment underlying article 39A.
the legal profession has to gear up to provide service 'to such seekers of
justice. The legal profession is, to all intents and purposes, in private
sector. The medical profession. is also in private sector but free public
hospitals have been set up where anyone can get medical service without
the obligation to pay any fees. The poorest can have access to such
hospitals. Unfortunately, till today, there is no public sector in legal pro-
fession. It is the duty and obligation of the organised legal profession
to set up its public sector unit yvhere the services of its members would
be available to those needy who cannot afford to pay the fees for their
services. Legal aid scheme operated bv the Government of India to some
extent helps in this behalf. However. concrete measures have to be taken
to set up public sector clinics, operated bv members of the 18831 Pro'
fession, where anyone who is needy and cannot afford to Pay the f"-'P? of
the private sector can walk in and not only get advice but even_in1t1ate
proceedings for seeking justice. This is an" overdue measure which the
legal profession must undertake. To some extent this will also resolve
the problem of accountability, T

3.31. That brings us to the last limb of our examination. The
approach herein indicated ﬂows from the monopolistic character of the
profession. If, as stated earlier, accountability is a checl; on the abuses
of monopoly. equally social audit of the profession is a positive check on
possible abuses of a monopoly. That needs us to speil out what is social
audit. This term has been made current by the Sociologists and is very
much in vogue when Sociology of professions is examined. The Law
Commission uses it in a limited sense, As pointed out earlier, a complaint
by an aggrieved litigant against a member of the legal profession is hard
to come by for the fear that the concept of Peers justice would permit
probing of the charge by the compatriots of the delinquent lawyer
himself. Social audit must be done by a body which does not inhere
preponderance of the members of the legal profession. And the audit, to
be effective. must be by a body representing persons who would other-
wise claim to be aggrieved. Two institutions can effectively jointly
undertake social audit of the profession. That consists of the members
of the Judiciary who day in and day out have directly to deal with the
members of the legal profession. And the other body consists of con-
sumers of justice. They know where the shoe pinches. Therefore, the
Law Commission is of the opinion that the social audit of the errant
members of the legal profession as well as of the profession as a whole
must be undertaken by a body to be statutorily constituted by introducing
adequate provisions in the Advocates Act, 1961. to consist of retired
Judges and consumers of justice. A methodology will have to be devised
to give representation to the consumers of justice. The constituency must
be of those who had to go to the court and had an unfair treatment at
the hands of the members of the legal profession. It is. therefore, for
consideration that legal profession must individually and collectively be
subject to social audit by a body herein indicated,

3.32. If all the steps herein indicated are taken, the role of the legal
profession in strengthening the system of administration of justice would
be fully appreciated and the situation. both qualitatively and quantitati-
vely. change for the better.

3.33. The Law Commission recommends accordingly.

CHAPTER IV
ACKNOWLEDGMENTS

4.1. The role of legal profession. in strengthening the system of
administration of justice has been examined. To repeat, this report does
not concern itself with examining the role of legal profession in all its
dimensions. This report concerns itself with the limited task of examining
the role of legal profession in strengthening the system of administration
of justice. Therefore, the parameters of the report may be viewed and
understood in this context.

4.2. Legal profession is very vocal. It would not suffer any criticism
of it. It is very sensitive to criticism. In fact, it resents criticism. This
will be clear to any reader of this report, It is, therefore, necessary to
specify clearly that apart from the Debate set out in Chapter II of this
report, the Law Commission was assisted in preparing this report by
Dr. Madhava Menon, Director of the Law School at Bangalore and for
years Secretary of the Bar Council of India Trust and even now the
editor of the Indian Bar Review, the mouthpiece of the Bar Council of
India Trust. Unfortunately, Mr, Menon submitted his expert advice only
on points he found time to deal with. On. the other hand. Dr. J. S. Gandhi,
Prof. of Sociology, Jawaharlal Nehru University, was requested to assist
the Law Commission as an expert to examine, analyse and evaluate the
role of legal profession from the point of view of a sociologist. He helped
the Law Commission with his ﬁndings. The Law Commission acknow-

vledges with thanks the assistance received by it from Dr. MadhVa Menon

and Dr. J. S. Gandhi.

(D. A. DESAI)
Chairman

(V. S. RAMA DEVI)
Member Secretary

New DEIIJ-11',
August 31., I988.

NOTES AND REFERENCES

CHAPTER I

12.

14.

. Ludo Rocher,

Proceedings of Fourth Commonwealth law Conference, 11 Indian Advocate (1971) p.89.

Marc Galanter and Robert Kidder ed. Lawyers In Developing Societies" with particular reference
to India," 3 (2 and 3 special issue ) L.'lW and Soeiety Review 1968-69.

. Dr. Upendra Baxi, S0ci0--Legal Reseraeh in India : A Programschritt, (ICSSR Occasional

Monograph 12, 175) as quoted in foreword to Sociology of Law and Legal Prafessiolt by Shri
K.L. Sharma (1984), P. (ix).

Dr. J.S. Gandhi, Lawyers And Tout: A study in the sociology of the profession (1982) and
Sociology of law and legal system: The imliuu setting (1987) and KL. Sharma at note 3.

"Lawyers in classical Hindu Law" 3 (2 and 3 special issue) Law and Society
Review (1968-69) citing from Halhed's A Code of Gentoo Laws 93 (1777), A translation of
Ancient text called Vivadarmmtsetu, pp. 383-384.

. U.C. Sarcar, Epoch; in Hindu Legal History, 1958 p. 37 (cited in Lodo Rocher ibid).
. E.C. Ormand, Rules of Calcutta High Court, 1940.

. Samuel Schmitthner, "A sketch of the Development of the Legal Profession in India" supra .

note 2 p. 337 at 343 et. seq

. Quoted from the Original Act in Report of the All-India Bar Committee, India Government

Ministry of Law, 1953. p.9.

Quoted from the address, of Shri Y.V. Chandrachud, former Chief _Justice of India to 19th
Biennial Conference of the International Bar Association at New Delhi in Eastern Book Company
edited Challenge to the Legal Profession: Law and Investment in Developing Countries (1984);). 4

. Quoted by Justice V.R. Krishna Iyer, Justice and Beyond p. 20.

Quoted by Justice V.R. Krishna Iyer, A Constitutional miscellany, p. 179.

. Ibid.

Warren Burger in his address to American Bar Association in 1970, "The State of the Judiciary
----1970" 56 (Oct) ABA Journal, p. 929.

CHAPTER 11

Krishan Mahajan in The Hindustan Times dated 7-2-1988 'legal perspective'.
Avil Rana in The Statesman dated 11-221988.

The Hindustan Times dated 12-11-1987.

. Dr. Upendra Baxi, The Crisis of Indian Legal System (1982) p. 75.

Editorial, The Hindustan Times dated 22-8-1988.

The Hindustan Times dated 24-8 1988.

Annual Report' of the Ministry of Law and Justice, Governrnment of India, 1987-88, p. 31.

Answer by the Minister of State in the Ministry of Law and Justice to the Unstarred Question

' No. 303 in Rajya Sabha dated 29-7-1933.

D. 91.

See _LCI, 125th Report on The Supreme Court--A Fresh L
23

12.

Figures supplied by the Additional Registrar, Delhi High Court.

. See c.g. cases, Bar Council of Maharashtra V. M.V. Dab/iolkar, AIR 1975 S.C. 2092; PJ.

Rut/zamV.D. Kanikuram, AIR 1964 S.C. 244; V.C. Rangadurai V. D. Gopalan, AIR 1979 S.C.
281 and M. Veerbhaora Rao V. Tek Chand, 1984 S.C.C. Supply. 571.

For analysis of this aspect, reference is insisted to LCI, 128th Report on the Cost of Litigation

CHAPTER III

10.

11.

12.

16.

17.

20.

22.

23.

. O. Chinnappa Reddy, former Judge of the Supreme Court of India

§:.'l':'{:;'1lC/.:b%l."R1:?(ilC'!',l),le1:Sl::C( if America, extracted by Mark H. McCormack, The Terrible

Ibid. Preface, p. 9.

. The Constitution of India, article 39A.

. T.K. Oommen, "The Legal Profession in India 2 Some Sociological Perspectives" in N.R.

Madhava Menon ed. The Legal Profession: A Preliminary Study of the Tamilnadu Bar (1984) p. 3

. Ibid., p. 4.
. Dr. J.S. Gandhi, Lawyers and Touts : Study in the Sociology of the Legal Profession, p .33,

. LCI, 14th Report, Vol 1. p. 556.

. Narottamdas L. Shah V. Patel Maganbhai Revabhai and Another. 1984 Gujarat Law Herald 687

Abraham Lincoln as quoted in The Terrible Truth About Lawy b M k
page Preceding Dreface. 6" y at H' McC°mm°k-

SJ & M.M. Price Ltd. v. Milner, (1966) 1 Weekly Law Reporter 1235.

For a more elaborate discussion of this aspect of the matter, s LCI 129t
Litigim'on----Mediation as Alternative to Adjudication, para 5. 12.6 h Report on Urban

t}§:p1g1itr(l)iSIJn.I;st£3;It:r(§:1a&Ol:l rS(i1b::1l:1St(i)c|;i:stion No. 2561 dated August 12, 1988 by Minister of state in

. Supra note 4, extracted in Introduction.

. . f . ' . '
}='::i1;_ct;}(1zl!1er0le})?(é)e(;svit1on 0 this aspect, reference may be made to LCI 117th Report on Traimng of

. See Supra note 11, paras 5.6 and 5.7.

Ibid., para 3.21 and Appendix V.

Ibid., paras 3.21 to 3.29.

. Akadasi Padhan V. State of Orissa, (1963) suppl. 2 SCR 691.

sions, 14 (4) Indian Bar Review. 1987 p. 624. on Accountability of Pmfe"

Ibid.. pp. 623-624.

. Ibid., Justice V.R. Krishna Iyer, former Judge of the Supreme Court of India p 658

As for example, U.S.S.R. and German Democratic Republic.

As for example, U.P. State Advocates Welfare Fund.

iaarv

APPENDIX 1

LAW COMMISSION OF INDIA

QUESTIONNAIRE

ON ,
'HIE ROLE OF THE LEGAL PROFESSION IN STRENGTHENING
THE SYSTEM OF ADMINISTRATION OF JUSTICE

1
.-war.-.«.m-,.....» .
.u .;

26
LAW COMMISSION or INDIA

The terms of reference drawn up for the proposed Judicial Reforms
Commission were assigned to the Law Commission.. One of the terms in
the context of studying judicial reforms is 'the role of the legal pro-
fession in strengthening the system of administration of justice.' The Law.
Commission is now poised to deal with this term of reference. The role
of the legal profession ordinarily should not resort to strike either to
strengthening the system of administration of justice may have to be
examined from different angles. One such angle is: what role the legal
profession in India can play in promoting and accelerating the process
of social change through the instrumentality of legal justice system. The
desired social change is in the direction of building-up the egalitarian and
equalitarian society as envisaged by the Constitution.

The institution of legal profession is an old one. Its present structure
and format have been shaped during the Raj days. Following the Queen's
proclamation in 1857. when the Crown; assumed direct responsibility for
the governance of India leading to the setting-up of the High Courts in
three principal towns, English Barristers and Solicitors came over to
India by their training and tradition shaped the legal justice system on
British model. The Barristers became the symbol of status. Numerous
Indians went to U. K. for becoming Barristers and acauired the British
training and culture and tradition and on return to India transformed
the indigenous legal profession into the British model. Even the division
in the profession Solicitors-Barristers was on the same lines. Undoub-
tedly, because of the knowledge of the English language and their contact
with British justice system, some of the Barristers of those days parti-

-cipated in the independence movement and played a pioneering role in

it. However, on the advent of Independence, the legal profession in India
failed to transform itself from one serving the colonial legal justice
system into the system suited for the republican India to be governed
under the liberty-oriented Constitution. The profession persisted with the
out-dated and wornout legal formulations of the Raj days and for this
purpose, the Court of Appeal and the House of Lords became their
sou1'ce of inspiration. This had led considerably to the present malaise.
The most glaring reason being that a system suited to a highly literate
elitist society could hardly be effective for a society with high percentage
of illiteracy and poverty.

With the spread of education, more and more people turned to legal
profession as it became very lucrative in course of time. Its fall-out is
that the element of service has totally disappeared and the profession is
Wholly proﬁt-oriented willing to squeeze the maximum proﬁt. All
undesirable tendencies unequivocally have entered the profession.

Every institution has to be socially useful for the purpose of trans-
forming the society in which it is operating. The role of legal profession.
it being a powerful vocal institution has to be examined in the context
of its assistance in achieving the goals of the Constitution. the most
important being amongst others to secure that the operation of the legal
system promotes justice on the basis of equal opportunity. and shall, in
particular. provide free legal aid, and to ensure that opportunities for

securing justice are not denied to any citizen by reason of economic or .

other disabilities.

It is a moot point whether the legal aid movement both voluntary
and _State-backed came into being on the failure of the legal profession
to discharge its social obligations. It cannot be questioned that many in
search of justice failed to invoke the jurisdiction of the court for want
of wherewithal to pay the lawyer. Legal profession is wholly mono-
polistic in structure and functioning and it is now necessary to enquire
whether the evils 'of inonopoly have overtaken the profession. This is not
in the spirit of criticism but introspection to ﬁnd out solutions,

~ r-ww-"

a .

The Law Commission proposes to examine the role of the legal
profession primarily for strengthening the system of administration of
justice. The Law Commission has been in touch with the Bar Council of
India and also with the bar councils at the State level on various
connected issues. These bodies represent the institutional format of the
organised Bar. But the society as a whole is interested in the role of the
legal profession. The injustice ridden teeming millions of India are the
largest body of consumers of justice and they may be given an opportu-
nity to articulate their views. They may have a grievance syndrome
against the legal profession. There are voluntary organisations, activists,
protagonists of social action litigation and several others, who may make a
useful contribution in analysing, examining and evaluating the role of
legal profession. It is to them the Law Commission approaches by this
small questionnaire and invite them to participate in the debate. The

Law Commission. would be interested in responses to the following
questions :

1. Is the feeling rampant throughout the people who have to deal
with the legal profession, that legal profession is an impedi-
ment, roadblock and obstruction to justice because of its
dilatory, prolix, technical and formal approach, valid'!

2. One of the primary function of the legal profession is to assist
in rendering justice, It it true that the present day profession

has moved far from it and its present role is clearly counter-
productive ?

3. Law is an instrument of social engineering. Its two most
important limbs are the Judiciary and the legal profession.
And obviously for achieving the goals, their role must be
complimentary to each other. Is it true that instead of becoming
complimentary, a sort of a confrontationist situation has
developed between the organised profession and the Judiciary ?

4. If the answer to the last question is in the negative, how,

would you assess and evaluate recurrent strike by the legal
profession ?

5. The concept of strike came from the World of industrial re-
lations It subsumes that the one, who is in a position to meet

by the Government'? Would it in the long run not impair the
Independence of Judiciary coveted by the Bar? Can, the Bar

80 _on strike'? If yes for what cause and with what justi-
ﬁcation ?

6. How would you view the disinclin

t' f '
of the Bar to accept Judgeshipl a ion 0 the senior members

10.

11.

12.

13.

14.

15.

16.

What can be done to restore the lost image or esteem of the
legal profession in the country? Among various steps that
may be recommended for this purpose, can we also think of
some modiﬁcations, minor or major, in the existing Advocates
Act? Or, can we think" of new Act to replace the present one.
If so, what can be its general, outline?

Should the professional bodies such as Bar Council of In.dia or
State Bar Councils only conﬁne themselves to "entering"
lawyers on their rolls as of now ? Should they not lay down
speciﬁc norms such as the ones lawyers should follow with
regard to the poor and indigent clients ?

Formerly, disciplinary jurisdiction over the members of the
Bar vested in the High Court. A demand for Pcer's justice led
to the profession in the Advocates Act which abolished the
jurisdiction of the High Courts and vested it in the Disciplinary
Committee of the Bar Council at the State and National level.
Has it improved the situation? Would a mere appeal under
section 38 of the Advocates Act to the Supreme Court of India,
be adequate in restoring the balance ?

What measures may be taken to curb or contain the alleged
hobnobbing and intimacy between :--

(i) The Members of the Bar and Judiciary;

(ii) The Members of the Bar and prosecuting oﬁicers.

Is it necessary to prevent a tie-up between professional bodies
on the one hand and politicians and political parties on the
other ?

Is it desirable to have a standardised schedule of fees that may
be charged from the clients? If so, how should it be arrived
at? How would it be enforced?

What can possibly be done to tone down monopolistic character
of professional business ? It is possible to think of some norms
for distributing case-load among seniors in the bar and those
who are relatively juniors?

Is it not now opportune to devise a system by which indigenous
litigants must be in a position to appear before courts and
tribunals on their own and be assisted by voluntary agencies
and para-legal bodies ?

. W .....,...._.--

APPENDIX Il
List of persons/bodies who responded to the questionnaire.
1. HIGH COURTS
1. High Court of Orissa
2. High Court of Karnataka
2. JUDGES '
9 1. Justice Jayachandra Reddy, Andhra Pradesh High Court
2. Justice Y.. V. Anjaneyulu, Andhra Pradesh_High Court
3. Justice S. T. Ramairingam, Madras High Court
4. Justice S. M. Daud, Bombay High Court
5. Justice Tipnis. Bombay High Court
ti. Shri Sanjeev Dutta, Trainee Judge Morena, M. P.
BAR COUNCILS/BAR ASSOCIATIONS
1. Shri Gobardhan. Pujari, Member, Orissa State Bar Council

2. Shri K. A. Palanishwami, Member, Bar Council of Tamil Nadu
District

3. Shri Satender Narayan Das, Bar Council, Madhubani, Bihar

4. Shri G. D. Panda, Secretary, Lawyers' Association, Parlakhe-
- mundi District, Ganjam

5.- Shri P. C. Biswas, Secretary, Shillong Bar Association
6. Bombay Bar Association

7. Ahmedabad Bar Association

8. Bihar State Bar Council, Patna

9. Bar Association, Muzzafarpur, Bihar
10. Bar Council of Maharashtra and Goa

11. Bar Council of Punjab and Haryana, Chandigarh
4. Am/ocA'rEs
1. Mrs. M. Sharma, Advocate, Shillong
Shri Koka Raghava Rao, Advocate, Hyderabad
-Shri T. V. S. Dasu, Advocate, Hyderabad
Shri R. Rama Krishnayya, Advocate, Tenali, Guntur

Shri L. Ramanandha Rao, Advocate, Tenali Guntur
Shri R. K. Bhatt, Advocate, Ajmer

.'*".<7°$"!"'S'-7."

Shri Ranjit D. Chaudhari, Advocate, Nagpur
29

5. ACADEMICS

Shri D. N. Saraf, Ahmedabad

2. Shri K. P. Singh Mahalwar, M. D. University, Rohtak
3. Shri P. C. Juneja, D. University, Rohtak A

4 Shri O. P. Shukla, Indian Law Institute

6. VOLUNTARY ORGANISATIONS/ CONSUMERS OF JUSTICE

.Shri D. B. Mane, Nyaya Sudhar Sangathan, Sangli, Maha-

rashtra

2. Shri H. D. Shourie, Common Cause, New Delhi
3. Legal Aid Centre for Women, New Delhi
4.
5
6

Shri R. N. Vasudeva, New Delhix

. Shri Harish Uppal, New Delhi.
. D. M. I. Furtado, Goa.

88-L/J(N)78lMofLJ&CA-----1,200----21-10-89fGI'PS

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