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Report No. 131

Role of the Legal Profession in Administration of Justice

Chapter I

Introductory

1.1. While responding to the inaugural address of the President of India at the Fourth Commonwealth Law Conference on January 4, 1971, Lord Hailsham of St. Marylebone, Lord Chancellor of Great Britain said: "Sir, you have been very generous about our profession. But we cannot altogether conceal from ourselves the fact that lawyers, whom I am here to represent, are a race not universally popular; nevertheless, I believe, they are universally found to be indispensable.

How can they be universally popular when it stands to reason that in all contested litigation one party at least must go away disappointed, and is usually readier to blame his own lawyer, or his, adversary's or, perhaps, shocking as it may seem, even the Judge, rather, than his own conduct, or the, weakness 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."1 Reserving the opinion on the cause assigned for lack of popularity referred to in Lord Chancellor's speech, the position of the Bar vis-a-vis administration of justice is here neatly summed up.

And the authority of the maker of the statement is unquestionable because he combines in his person the Judge, the Minister, the legislator and the lawyer rolled into one. The legal profession has acquired a high visibility profile and consequently has held multi-disciplinary attention of many sociologist of law.2 This led a jurist unfairly accused of pathological dislike for the profession to assert that 'if little sociology leads one away from the laW, much sociology (in a generic sense) returns one to the study of the law'3. A number of sociological studies of legal profession have recently appeared.4

1. Proceedings of Fourth Commonwealth Law Conference, 11 Indian Advocate (1971), P. 89.

2. Marc Galanter and Robert Kiddered Lawyers in Developing Societies "with particular reference to India," 3 (2 and 3 special issue ) Law and Society Review, 1968-69.

3. Dr. Upendra Baxi Socio-Legal Research in India: A Programschritt, (ICSSR Occasional Monograph 12, 175) as quoted in foreword to Sociology of Law and Legal Profession by Shri K.L. Sharma (1984), P. ix.

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

1.2. Legal profession is multi-dimensional in character. This report does not purport to study and analyse the legal profession with reference to all dimensions or its structure, organisation and functioning, nor does it purport to be the sociometry of the relationship of legal profession to various groups, such as litigants, Judges, politicians, academics and even amongst themselves. The limited scope of the report may be articulated viz., role of legal profession in strengthening the system of administration of justice.

1.3. This report would be the last link in the chain of reports prepared and submitted by the present Law Commission after the task of studying judicial reforms was assigned to it. One of the terms of reference drawn tip by the Government of India for study of judicial reforms is: 'the role of the legal profession in strengthening the system of administration of justice'. The term articulates the scope and ambit of the report. Legal profession is one of the most leading professions of intellectuals in this country and, as stated earlier, it is multi-dimensional. The present Report concerns itself with the role of the legal profession in strengthening the system of administration of justice. It is, therefore, necessary to prescribe the parameters of this report.

1.4. The present system of administration of justice owes its origin to the advent of the British rule in India. In its structure and organisation, the administration of justice in India as at present in vogue has the stamp of 'Made in U.K.'. The British system of justice is inconceivable without the barristers and solicitors being integral part of the same. When the British rulers by gradual doses introduced the institution of British justice in India, simultaneously the institution of legal profession came along with it. Came the barristers and solicitors also. The form and organisation in which the institution of legal profession exists today has no relevance or connection with the period of Indian history prior to the advent of British rule in India.

A research in this behalf has revealed that while some researchers maintain that the litigants in pre-British rule or even in ancient India had rights to delegate the representation of their claims to some other person sustaining the belief that lawyers did exist in ancient India,1 the contrary assertion is that lawyer never existed as a distinct category within 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.2

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 personally. The same situation obtained throughout the Mughal period which ended just before the British appeared on the scene.

1. Ludo Rocher 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 Vivadarnavasetu, pp. 383-384.

2. U.C. Sarcar Epochs in Hindu Legal History, 1958, p. 37 (cited in Lodo Rocher ibid).

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 made a 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 codifying laws in India. In the earlier period of the history of Supreme Court and Sadar Courts, the legal profession largely consisted of British Barristers and solicitors. The upshot of all these developments was the inescapable 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 advocates and attorneys to plead and act on behalf of the suitors, simultaneously 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',.1

The Royal Charter of 1774 was, in course of time, extended to other two presidencies-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 Schmitthener2 rather dramatically.

1. E.C. Ormand Rules of Calcutta High Court, (1940).

2. Samuel Schmitthner A sketch of the Development of the Legal Profession in India.

1.7. It must, however, be briefly made clear that the legal profession continued to be fragmented in two different court-settings, that is, Mofussil (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 composition 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 professions 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 collective character to the legal community. A number of Indians were attracted to this profession. Indian lawyers could 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 more Indians adopted law as their career and started performing as well as their British counter parts did. Barrister's qualification had the respectability of its own. A large number of Indians started going to Britain 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 extraordinary provision whereby only Muslims and Hindus could be enrolled 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

1.Quoted from the Original Act in Report of the All-India Bar Committee, India Government, Ministry of Law, (1953), p.9.

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 movement 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 Nehru, Chittaranjan Das, Dr. Rajendra Prasad, Sardar Vallabhai Patel, Vithalbhai Patel, Pandit Jawaharlal Nehru and many others. Most of them who survived occupied positions of eminence in independent India.



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