Report No. 14
16. Only one Bar Association for one Court.-
We are living under a Constitution which enjoins equality before the law. The Bar throughout, it is hoped, is about to attain its ideal of unification. The profession, when united, can rise to even greater heights of distinction and service. It is certainly anomalous that in these circumstances the Bar should still remain split into different groups. Bar Associations should, in our view, be constituted only for each Court or groups of Courts and all members of the Bar practising in a Court should be able to enjoy equally the privileges and amenities of these associations.
17. The dual system in Calcutta and Bombay.-
A question may, however, be asked whether, in view of our recommendation that a unified bar and a common roll of advocates with a right to practise in all the Courts should be established, it is consistent or proper to permit the continuance of the dual system in certain Courts. We proceed therefore to examine this question. The High Courts of Calcutta and Bombay have maintained, ever since their creation, what has been called the dual system on their Original Sides. Till a few years ago, dual system also prevailed in the Supreme Court. It has been recently replaced by what may be called a modified dual system under which the advocate on record, who files an appearance in the C6urt on behalf of the client and is in the position of an instructing solicitor or agent, is also entitled to the right of audience.
Two questions arise for consideration. First, whether the dual system on the Original Sides of the Calcutta and Bombay High Courts should be continued. Secondly if its continuance is advisable, whether such a continuance would in any manner be inconsistent with the creation of an All-India Bar with a common roll of advocates and their right to practise in all Courts in the country.
18. Its working.-
The question of the continuance of the dual system in Calcutta and Bombay was considered by the Chamier Committee of 1923 and the All-India Bar Committee of 1951. As the views of the members of the Chamier Committee were sharply divided, the Committee refrained from making any recommendation on this question. The Bar Committee by a majority took the view that no case had been made out for the abolition of the dual system in Calcutta and Bombay. Sub-section (4) of section 9 of the Indian Bar Councils Act (XXXVIII of 1926) was enacted specifically for the purpose of enabling the two High Courts to maintain the system in the manner and to the extent they wished. Since the passing of that Act, the system has been continued in these two Courts.
19. The case for the dual system.-
As pointed out by the All-India Bar Committee, the dual system is, in its essence, a distribution of work or a division of labour between two classes of legal practitioners. Such a division of labour is a special feature of the British legal system and came to be introduced in India on the Original Sides of the High Courts as, initially, the practitioners and the Judges on the Original Sides, were British barristers. The opinion of lawyers in India on the continuance of this system has been sharply divided. By and large, however, it has been conceded even by the critics of the system that it makes for greater efficiency.
Some of these critics have admitted that, even where the system is not obligatory, as in appeals from the lower Courts heard by the High Courts on their appellate sides, there is, in fact and substance, in vogue, in all important matters, a division of labour like that enforced under the dual system. In these matters, usually more than one advocate is engaged and it is left to the junior advocate or advocates to do the preparatory work including that of gathering information from the clients, while the senior advocate is entrusted with the task of presenting the matter to the Court. The adoption of this practice, even when not required by the rules of the Court, indubitably establishes its utility and necessity in all important matters.
At one time, objections were raised to its continuance on the ground that it cast on the losing litigant a heavy burden of costs. This was, however, controverted and figures were produced to show that in many matters decided on the Original Sides, the fees paid to both sets of practitioners working under the system amounted to much less than what would have been payable to an advocate remunerated by a percentage of the value of the claim. More over, it was conceded that, even on the appellate side where the rules prescribed a percentage on the amount of the claim as payable to advocates, very heavy daily or lump sum fees were, in fact, charged by the advocate or advocates engaged, thus increasing the costs to the clients.
However, the criticism that the system entails excessive costs to the clients has lost its force, as the High Courts have framed rules prescribing varying scales of posts, fixing specified amounts as costs chargeable in a number of matters and providing for strict taxation. Two basic facts should not, however, be lost sight of while considering the question of the increased costs involved in the working of the dual system. The litigant in these commercial centres is by and large willing to bear them. He is so willing because he obtains a double service which yields efficient work.
A curious objection to the system has been that it is foreign in origin. Surely that cannot be a valid argument for its discontinuance and it will be obviously unsound to uproot the system regardless of its merits or demerits; merely because of its foreign origin. One cannot forget that our system of administration of justice and our laws have their roots, in a great measure, in the British system and British Statutes and the Common law.
The single ground on which the opponents of this system are eventually driven to rest themselves is that a litigant should not be compelled, as in the dual system, to engage more than one advocate. This, however, appears to be an objection grounded merely on theory and has no regard to the practical aspect of the matter. Many aspects of a citizen's private life are in the modern state regulated by law and he cannot seek the assistance of a Court of justice even when deprived of his fundamental rights without having to pay substantial amounts as court-fees. The compulsion involved in the maintenance of the dual system is in no way different from the various other forms of regulation enforced by societ.- and is more easily defensible than most of them as it promotes efficiency and is accepted by those on whom it operates.
22. Consensus of opinion in its favour.-
A large body of opinion in Calcutta and Bombay where the system operates favours its continuance as is indicated by the Report of the West Bengal Judicial Reforms Committee of 1949 and the views expressed before the All-India Bar Committee by witnesses from Calcutta and Bombay. Surely it is strange to talk of the abolition of the system when the persons who are Chiefly concerned and who are supposed to be its victims express their preference for it.
It is a remarkable testimony to the popularity and efficiency of the system that, though the door has been open to the litigating public on the Original Sides of the High Courts in Calcutta and Bombay to employ advocates of the Supreme Court who are entitled to appear on the Original Side without being instructed by an attorney under the decision of the Supreme Court in Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369. it has not chosen to employ them to any noticeable extent and has continued to entrust its cases to attorneys and counsel under the dual system.
It is difficult to appreciate the reasoning which calls for the abolition of a system proved and admitted to be efficient at a time when the public and those in authority are clamouring for an improved and more efficient system of administration of justice. It may, in this connection, be noted that a considerable section of public opinion in the United States where this system does .not .prevail has asked for its introduction.
23. Not only has the system been acknowledged to provide for more efficient work, but there is evidence that, it provides "for a standard of conduct which the unitary system will not easily provide". Indeed, in order to eradicate the evil of touts, it has been advocated that the tout should be turned into a sort of an agent by giving him some training and bringing him under control by legislation as a recognised agent entitled to a prescribed scale of remuneration.1 This indeed is the dual agency in another garb.
1. AIR 1955 Journal 25 (27)
24. views of the All-India Bar Committee.-
The whole matter was exhaustively reviewed by the All-India Bar Committee who reached the conclusion that there was no reason requiring the abolition of a system which had been in vogue in Calcutta and Bombay for about a hundred years. We cannot do better than quote the conclusion reached by the Committee:
"On a review of the entire situation and the improvements made by the rules since the days of the Chamier Committee and in view of the fact that the persons mostly affected by the dual system want its continuance the present Committee does not think that any case has been made out for the abolition of the dual system in Calcutta or Bombay and it sees no reason why that system should not continue in those two places. The Committee is satisfied that the continuance of the dual system will not in any way militate against the ideal of an All-India Bar just as a division of the Advocates into two categories of senior and junior, which also imposes the obligation on the senior Advocates not to act, would not do.
The dual system is nothing more than a division of labour which of necessity ensures for the better preparation of the cases and enables the Advocate to effect a better and forceful presentation of the client's point of view before the Judge. If the views of the majority of the Committee in regard to the dual system be accepted, then it will be necessary for the Government of India to undertake legislation to exempt the Original Sides of Calcutta and Bombay from the operation of the Supreme Court Advocates (Practice in High Courts) Act, 1951, in so far as acting on those sides is concerned."1
1. Report, pp. 32-33, para. 81.
25. The question whether the continuance of the system would in any manner be inconsistent with the creation of an All-India Bar with a common roll of advocates with a right to practise in all Courts has also been answered by the Bar Committee. The right to practise in all Courts does not mean that the rule of the Courts where the Advocates go to practise may be ignored. What is meant is that there should be no rule of any Court preventing any advocate ordinarily practising in any other Court from exercising his profession in the first mentioned Court in the manner in which an advocate ordinarily practising in that Court may do."1 We are in entire agreement with this view.
1. Report, p. 25, para. 65.
26. Dual system in Supreme Court.-
The question of the continuance of the dual system in the Supreme Court was also considered by the All-India Bar Committee. The Committee recommended its abolition in the special circumstances which prevailed in the Supreme Court and made recommendations for the introduction of a system under which there was to be a division of advocates into Acting Advocates on Record and Pleading Advocates in every case in the Supreme Court. There had to be engaged an acting Advocate in every case unless the party appeared in person and the acting Advocate could act as well as plead. However, a party could engage, in addition to the acting Advocate, an advocate entitled only to plead and who could appear only when instructed by an acting Advocate. The recommendations made by the Committee have, with some modifications, since been incorporated into the Rules of the Supreme Court.
27. Its unsatisfactory nature.-
What has been introduced is in substance a truncated form of the dual system which entitles the advocate on record who corresponds to the Solicitor in Calcutta or Bombay both to act and plead. This altered system has not tended to improve the manner in which work is handled in the Supreme Court. It is no exaggeration to state that the litigant in the Supreme Court is, in the matter of legal assistance, at a considerable disadvantage as compared with the litigant in most of the High Courts. In a large majority of cases, very little work, in the matter of preparation of the cases, is done by the advocate on record; and in very many cases in which the advocate on record pleads before the Court, very little assistance is derived by the Court from the Bar. This state of affairs in the highest Court of the land must occasion grave concern.
28. Changes necessary.-
It is for consideration whether the introduction of the dual system as it prevails on the Original Sides of the High Courts of Calcutta and Bombay will not lead to an improvement. It is true that the conditions of work in the Supreme Court differ from those on the Original Sides of the High Courts of Calcutta and Bombay. As observed by the All-India Bar Committee, "the amount of acting involved in matters in the Supreme Court is very much less than what is done by the Attorneys on the Original Sides of the High Courts and is even less than the acting done by the Advocates on the Appellate Side."1
It is also true that the difficulties besetting the introduction of a full fledged dual system in that Court are great in as much as there are hardly any facilities for Attorneys or Agents being trained, it would be unfair to insist on persons desirous of qualifying to be Attorneys or Agents to go for a proper training to Calcutta or Bombay. At the same time, it has to be remembered that some firms of Attorneys from Calcutta and Bombay have opened branches in Delhi and some advocates on record have combined into firms which are working in a manner as efficient as Attorneys in Calcutta or Bombay. In our view, therefore, there is no reason why a system closely analogous to a dual system, the regulations relating to which can only be worked out by the Court having regard to its conditions of work, should not be introduced in the Supreme Court.
1. Report, p. 33, para. 82.
A large number of matters in the Supreme Court are matters of prime importance and substantial value, and it is very necessary to the efficient working of the Court that it should be assisted by a Bar which has given thought and labour to the preparation of the case. Most of these matters can well bear the cost involved in the employment of two lawyers. In fact, two lawyers, an advocate on record and a pleading advocate, are instructed in a large number of cases before the Court. In any case, the condition of the Bar at the moment, in fact, involves the litigant in much heavier costs in as much as in most important cases the advocates who have been familiar with the matters in the High Court are brought to the Supreme Court either to plead or to instruct the advocate who pleads.
Further, the question of cost is a matter which can always be regulated by the Court and if the introduction of such a system does involve costs which the Court considers excessive, steps can be taken to scale or quantify them as on the Original Sides of the High Courts of Calcutta and Bombay. In our view it is imperative that measures should be adopted to ensure that the cases presented to the Supreme Court are adequately prepared and efficiently handled, so that the Court may have the assistance of the Bar in a full measure in the discharge of its onerous task.
29. Division of the Bar into seniors and juniors.-
We may next consider the question of the division of the Bar into senior and junior advocates. This question was also considered by the All-India Bar Committee. The committees were not, however, of one mind and refrained from making any recommendations.
30. Opinion divided.-
The opinion we were able to elicit, disclosed a wide diversity of views on this question. Some of the witnesses were opposed to the very idea of such a division, while others thought that the proposal would not be workable at any rate so far as the district and subordinate Court bars were concerned. Generally speaking, however, representatives of the legal profession in most of the States, particularly the junior section of the Bar expressed views supporting such a division. Broadly speaking the evidence before us favoured the acceptance of the principle of a voluntary division of the Bar into seniors and juniors, the seniors being, by reason of their status, precluded from accepting certain types of work and from appearing in cases unless briefed with a junior.