Report No. 266
Annexure - II
Analysis of Responses Received by Law Commission of India
Based on the facts in the matter of Mahipal Singh Rana,72 the Apex Court highlighted the dismal state of the regulatory mechanism governing lawyers with emphasis on an urgent need to review the provisions of the Advocates Act dealing with the regulatory mechanism for the legal profession and other incidental issues, in consultation with all concerned.73 Consequently, the Court requested the Law Commission of India to go into all relevant aspects relating to regulation of legal profession and submit a report on the same. In light of the above direction, the 21st Law Commission of India issued a notice on 29th August 2016, inviting comments on "the need for reform in regulation of legal profession". In response to the notice, 136 responses have been received, out of which 79 are from judges; 10 are from Bar Council(s) and Bar Associations; 16 are from Lawyers; 6 from Government Lawyers and Officials; 7 are from academics, research organisations and other organisations; and 18 from others.
At the very inception, the general tenor of the comments received point out the lack of defined regulatory objectives and principles in the Advocates Act itself. Although the provisions of the Act do provide for the basic regulation of legal profession throughout its scheme, it has been observed that a set of defined objectives and guiding principles would do better in regard to the interpretation of the Act with the regulatory framework in mind. As the regulatory mechanism for legal profession in India still abides by the principles of 'self-regulation', overwhelming number of responses point out the failure of the existing mechanism and hence have realised the need for urgent reform required.
In regard to the responses regarding specific provisions, a number of responses have highlighted the existence of faulty/unsatisfactory definitions such as the definition of advocate (which does not extend to the law firms, partnerships, body corporate etc.). Additionally, the general tenor of the responses have highlighted that at present, there exists no definition of professional or other misconduct which has resulted in the arbitrary usage of Section 35 (Punishment of advocates for misconduct). It is important to point out here that changes to definition will also result in changes in the accompanying provisions such as maintenance of rolls of advocates (to include rolls of law firms, partnerships, corporate entities etc.).
For the ease of access to the list of State Bar Councils as well as to forgo the necessity of making amendments to the Advocates Act every time a new State comes into existence, a list of the State Bar Councils in the form of a schedule has been suggested. Moreover, a number of responses have highlighted the need for stricter requirements regarding the eligibility of members to be elected in the State Bar Councils as well as the Bar Council of India. Additionally, apart from lawyers, to dilute the 'self-regulatory' mechanism in place, a number of responses have suggested the need to change the composition of Bar Councils to include individuals outside of the legal profession.
In regards to the functions performed by the State Bar Councils as well as the Bar Council of India, the general tenor of responses highlight the need for reform in relation to Nation Entrance Tests, Continuing Education Schemes, Apprenticeship Programs as well as concerns regarding inspection and approval of law universities across the country. Some responses have also highlighted the lack of welfare schemes for advocates due to paucity of funds received by the State Bar Councils for the same. Some specific responses also point out the mushrooming of Bar Associations thereby urging the need to regulate the same.
While dealing with the provisions regarding the establishment of disciplinary committees for regulating the conduct of lawyers, a large of number of responses have highlighted corrupt practices within the lawyer fraternity thereby giving rise to issues of vested interests while performing the disciplinary functions. The responses have hence urged to make amendments in the Act providing for composition of disciplinary committees which would include retired judges, persons from high court registry, civil society members, bureaucrats, and legal academicians so as to dilute the majority of lawyers in the disciplinary committees. There have also been calls to make disciplinary committees as permanent standing bodies. A number of responses have also pointed out the need for uniform qualifying examination and thorough verification of documents and character of a person as a pre-requisite for enrolment.
Moreover, to give effect to the observations made in the Mahipal Singh Rana judgment (supra), the responses have unanimously agreed with the observation of the Supreme Court thereby necessitating amendment in section 24A of the Advocates Act to provide for post-enrolment disqualification. Also, the responses have suggested increasing the duration of disqualification (from 2 to 5 years) and have suggested necessary amendments in the provision to include certificate of good character an essential before re-enrolment after the disqualification period. Certain responses have also highlighted the need for statutory recognition of suspension of right to practice until advocate purges himself of contempt. A number of responses have also called for stricter penalties such as fine and imprisonment for professional or other misconduct and also pointed out the need for statutory recognition of the power of the courts and disciplinary committees to pass interim orders for the same. Additionally, some responses point out the need to increase the time granted for disposal of disciplinary committee proceedings because it has not been found to sufficient given the current capacity of the Bar Councils.
In regard to the power of the Bar Council of India as well as the High Court to make rules regulating the conduct of lawyers, responses suggest that there is a need of specific mention in section 49 I to exclude the jurisdiction of the Bar Council of India to regulate the conduct the lawyers within the court thereby giving effect to the Harish Uppal's judgement establishing the domain of the High Courts' to regulate conduct of lawyers even if has a limited effect on the right to practice. In reiteration of the Supreme Court's observation in Mahipal Singh Rana case, certain responses have agreed that appeal to High Courts from the State Disciplinary Committees should be made statutory recognising the existing powers of the High Court as found under Article 226 of the Constitution of India.
Other general suggestions include the need for establishment client forums and legal ombudsman for protection of client interests. Problems regarding the charging of exorbitant fees of by advocates have also resulted in responses urging the need for structuring fee payments as well as capping and incidence of fee payments. A specific response has also called for lifting the restriction on advocates for advertising while highlighting the need for legal profession to adapt to evolving international best practices.