Report No. 131
1.11. It is uncontroverted that the members of the Indian legal profession 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 cannot 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 augmented 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 require an extensive research and that is beyond the scope of this report.
1.13. The report will concern itself with the role of the legal profession vis-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 participation in unravelling the truth. The members of the legal profession in adversarial system enjoy a position of absolute indispensability.
If the adversarial system is to continue since it is here for over 200 years for a further period of trial and error, the role of the legal profession in making the adversarial system functionally operational in the process of rendering justice will have to be fully appreciated and if any infirmities and drawbacks have developed, they have to be eliminated so that the legal profession would render assistance in strengthening the system of administration of justice.
1.14. This approach needs to ascertain the role of the legal profession in trial by adversarial system in contra-distinction to inquisitorial system and that of the Judge operating the same system with a view to rendering justice. Mr. Warran Burger has set the goal for both by saying that 'Our constant purpose must be to keep in mind that the duty of lawyers and function of Judges is to deliver the best quality of justice at the least cost in the shortest time'.1
This is the respective role of the lawyers and Judges. If role assigned to each is properly, adequately, sincerely and efficiently performed, the adversarial system against which pungent criticism has been offered can still be retained only on the ground of antiquity, extending over two centuries. However, as the criticism can be said largely to be well-merited, the defects, deficiencies and imperfections have to be cured before a fresh lease of life can be imparted to it.
1. 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), p. 4
1.15. As some of the ugly features of the present justice delivery system, namely, prolixity, high formality, dilatoriness and expensiveness, surfaced, those connected with the system attempted to unravel the causes which generated these festering sores. Undoubtedly the whole system came under pungent criticism. When a system is criticised, its imperfections and deficiencies are highlighted. Once they are highlighted, the search turned towards unravelling the causes for the same. Amongst the causes now preferred for the decay and stratification of the justice delivery system, some are attributable to the foreign nature of the system.
But the fact should not be lost sight of that the system is in vogue for over two centuries in this country. To some extent also it can be said to be indigenized, though its overall picture remains British and, therefore, foreign. Even the profession which developed as an integral part of the system has also retained in its approach, sartorial significance, mode of addressing the court and colleagues, and the way of ascertaining the truth as in vogue in United Kingdom.
Till very recently, even the designations were imported, such as 'Barristers' and 'Solicitors'. The language of the superior courts is unquestionably English. Common Law formulation are looked upon with reverence. Therefore, a sizable body of opinion has developed that some of the ills of the system are attributable to adversarial system. Even in the land of its birth, serious doubts are raised about the effiCiency of the system.
1.16. Sir John Foster Q.C. reflected upon the English legal system. Says he:
"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 Champions are witnesses chosen by each side but who are not necessarily people who know the facts. And the battle is conducted accordingly to medieval rules of evidence. There is no need for a Q.C. to always have plumber's mate. The use of juniors should be tailored to the demands of the case. And legal aid is so vastly expensive because the system is so silly - you 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 writings"1.
Lord Devlin, speaking about the legal methods in England, made a cryptic observation:
"If our business methods were antiquated as our legal methods, we should be a bankrupt country. There is need for a comprehensive inquiry into the roots of our procedure, backed by a determination to adapt to fit the conditions of the Welfare Staten"2.
1. Quoted by Justice V.R. Krishna Iyer Justice and Beyond, p. 20.
2. Quoted by Justice V.R. Krishna Iyer A Constitutional miscellany, p. 179.
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 respects and is a victory in practice for human rights, viewed historically with Star Chamber memory, but is hostile to the actualisation of court justice unless operational innovations to conscientize, sensitize and radicalize current judicial methodology be creatively and crusading undertaken1".
'In the final third of this century, we are still trying to operate the courts with fundamentally the same basic methods, the same procedures and the same machinery' ... Roscoe Pound said, were not good enough in 1906. In the supermarket age, we are trying to operate the courts with crackerbarrel corner grocer methods and equipments-vintage 1900'.2 There is a body of opinion that of all the ugly features, the two most important being prolixity and expensiveness are attributable 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.
2. Warren Burger in his address to American Bar Association in 1970, The State of the Judiciary, 1970, 56 (Oct) ABA Journal, p. 929.
1.18. While examining the role of legal profession in strengthening administration of justice, these benchmarks will have to be kept in view.