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Report No. 14

51. views of the Bar Committee endorsed.-

We have thought it unnecessary to go into a detailed discussion of the composition and functions of the State and All-India Bar Council. These matters have been exhaustively examined by the All-India Bar Committee and we entirely endorse the recommendations on these heads made by them. We have dealt above with only some aspects of these heads which we thought needed emphasis and clarification.

52. Tout.- views of the Chamier Committee.-

The existence of the evil of touting was recognised as early as 1879 when provision to combat the evil were made in the Legal Practitioners Act of that year. It was brought prominently to the notice of the Indian Bar Committee of 1923-24 who noted that it was rampant in the Punjab and that so great was the evil that under the conditions then existing in Lahore, a Bar Council at Lahore could not function at all, unless it were entirely controlled and guided by the Bench, the evidence received by them left no doubt that touting of various kinds prevailed in most parts of India.

They observed1 that "The plain fact is that unless the legal profession assists the courts to suppress touts little can be done by way of legislation." One of the principal causes, in their opinion, of the existence of the evil was the serious overcrowding in the legal profession. They hoped that.with the qualifications of entrants to the profession being raised and the number admitted not being excessive, it may be possible to enforce a higher standard of discipline. They ended their observations by expressing the hope that the Bar Councils, the establishment of which they recommended, would regard the suppression of touting as one of their principal concerns.2

1. Report, pp. 39-40.

2. Report, pp. 127-128, para. 20.

53. Recommendations of the Rankin Committee.-

The Civil Justice Committee of 1924-25 referred to the existence of the evil which had been pointed out by the Indian Bar Committee and observed that "In the first instance it would seem to lie with the members of the Bar themselves to see that the law is put in motion. Moreover, it is open to them to make persistent and unanimous efforts to ensure that no member of the Bar appears, acts or pleads in cases brought to him by a tout. Unfortunately, as matters stand their efforts in these directions are at best very occasional, spasmodic and unconvincing."1

The Committee suggested that a tout who continued to act after being proclaimed a tout should be guilty of a criminal offence and that the definition of 'tout' in section 3 of the Legal Practitioners Act should be enlarged so as to include persons who carried on the activity of touting in serais, railway stations and other places by intercepting prospective litigants. These suggestions were accepted and amendments were made in the Legal Practitioners Act giving effect to them.

1 Report, pp. 127-128, para. 20.

54. Persistence of the evil.-

Notwithstanding the view expressed by the Bar Committee that the Bar Councils should take steps to eradicate the evil and their hope that the Bar Councils would make the eradication of this evil their principal concern, it does not appear that they have attempted to take any steps in this direction.

Rampant in some areas.-The evidence given before us showed that the evil persists and has increased in certain areas. We were told that the evil was rampant in certain districts of Andhra Pradesh where the touts are known as village barristers and that in effect these touts are employed by the clients, the touts in their turn employing for a small proportion of the remuneration received by them, the lawyer to do the client's work in the Courts. Our attention was also drawn to the great dimensions which this evil has reached in the Punjab where a senior lawyer stated that the majority of the members of the Bar were guilty of the unprofessional conduct of employing touts and that in the circumstances, an honest member of the Bar would find himself in trouble if he tried to take steps to fight the evil.

55. Lawyers responsible for existence of touts.-

It is obvious that the root of the evil lies in the profession itself. It is the professional man accepting work from a tout and agreeing to share his remuneration with the tout who creates the evil and makes its continuance possible. The man who works as a tout is but an auxiliary, and in many cases an agent of the professional man who indulges in this practice. Enactments which provide for proclaiming persons as touts, excluding them from entering certain places and punishing them, are thus really measures directed not against the persons who are primarily responsible for the existence of the evil but only against persons who act merely as the tools or agents of those on whom the real responsibility rests.

It is obvious that the real cure for this evil lies in the hands of the profession itself and that no amount of legislation directed against those who act as touts can succeed in eradicating or even mitigating the evil.The overcrowding in the profession is undoubtedly one of the causes which has contributed to the growth of the evil. Persons entering the profession, whose economic conditions make it impossible for them to wait before they can start earning a living or who have waited without success, are driven to these practices in their struggle for existence.

It not infrequently, happens, however, that lawyers who have been driven to these practices in the earlier stages of their career in their need to earn a living continue these practices even after they have gathered considerable practice at the Bar and some of them even after they have attained seniority in the profession. We have suggested earlier some measures which we hope will result in restricting the number of entrants into the profession.

A full time academic law course ending with properly conducted tests, followed by a professional course at the conclusion of which there would be a very stiff examination, should result in limiting the number who go into the profession and bring into it only those who have the real and serious purpose of practising it. In suggesting that the professional course should end with a very stiff test, we have equally in mind the entry into the profession of really well equipped persons and the necessity of limiting the number of entrants into it so that correct professional standards may be maintained.

The division of the Bar into senior advocates and advocates should also in some measure help to make the lot of the new entrants into the profession easier and thus tend to remove the temptation to indulge in these undesirable practices.

56. Bar Associations to expel members employing touts (Members to report undesirables).-

These however, can only be palliatives as the root of the evil lies in the profession itself. Only a sustained effort by all professional bodies, like Bar Councils and Bar Associations, can result in effecting a real improvement. Every Bar Association can frame rules, entitling it after enquiry suo motu or on complaints received by it, to post persons known to be acting as touts as undesirable persons on their notice boards. The rules should provide that members of the association observed or known to be associated with the persons notified to be undesirable persons shall, after due enquiry, be excluded from the membership of the association.

The mere making of such rules will, however, serve no purpose. Members of the association who happen be know about the contacts of their brother members with the persons notified to be undesirable must, in their own interest and that of the profession, courageously come forward when the occasion arises and state what they know about their brother members. If the honourable and honest members of the Bar make a sincere effort in this direction taking upon themselves the unpleasant task of exposing the evil practices of their brethren one can definitely hope for an improvement in the situation.

57. Employment of touts by Lawyers to be a criminal offence.-

"Touting" is an evil which affects the due administration of justice. This view has been accepted by the law regarding it as a crime [section 36(6) of the Legal Practitioners Act]. There is no reason, therefore, why both the persons participating in the commission of the crime viz., the proclaimed tout as well as the concerned legal practitioner should not be punishable under the law. Indeed, as has been pointed out above, the legal practitioner bears a greater responsibility in the matter than the tout.

58. Absence of touting in certain areas and reasons (Spread of education, decentralization of Courts and low fees.).-

It was disclosed that in the State of Kerala the evil to touting existed, if at all, in a very small degree. We were at pains to enquire into the causes of this somewhat puzzling situation. It was said that as the vast majority of the people in the State were literate or educated, it was difficult for the touts to carry on their activities. The litigants knew or could find out for themselves the lawyers who would best help them. An alternative explanation of the absence of touts was that the people of the State were poor, the level of fees charged by lawyers was low and that there was, therefore, no scope for the sharing of fees with touts. The far greater decentralization of Courts which we found had been carried out in Kerala may also account for this situation. The lawyers would be near to the litigants and would probably be well known to them.

If the spread of education and the decentralization of the Courts are likely to be of help in mitigating this evil it may be hoped that in course of time with increasing education and greater decentralization of Courts, touting may be on the wane.

59. The functions of the lawyers.-

The unification of the Bar, which it is hoped will soon be accomplished, will bring into existence an influential brotherhood of highly educated persons associated together in a common profession with common interests and common ideals. It will furnish glorious opportunities to the lawyer not only in the professional field but in other and wider fields.

It was said by Chief Justice Vanderbilt1 that a lawyer had five functions, "counselling, advocacy, improving his profession, the courts and the law, leadership in moulding public opinion and the unselfish holding of public office." He said:

1. Five Functions of the Lawyer by Chief Justice Arthur T. Vanderbilt, ABA Journal, Jan 1954.

"In a free society every lawyer has a responsibility, that of acting as an intelligent, unselfish leader of public opinion-I-accent the qualities "intelligent" and unselfish-within his own particular sphere of influence. Finally, every great lawyer must be prepared, not necessarily to seek public office, but to answer the call for public service when it comes."

60. The lawyer's role in modern India.-

The unified Bar of India can be a powerful influence for welding the country together and for combating all sectional, regional and communal trends. It can largely mould public opinion in matters relating to law, legislation and the administration of justice. The impact of the lawyer on public affairs is waning. An All-India Bar, organized and striving after true ideals, could restore, and even add to, the influence that lawyers used to exercise in public affairs. These tasks can, however, be achieved only if the lawyer lives up to the great ideal of his profession, and maintains proper professional standards not only of efficiency but of integrity.

Some of our eminent lawyers have helped to frame our great Constitution. It will be for the unified Bar of India to help achieve the lofty ideals embodied in its noble Preamble. The lawyer of the future will have to think less of advancing himself and his profession and more of service to the common man and his motherland.

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