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Report No. 131

Chapter II

The Debate

2.1. Ordinarily a group, class or category generally tries to safeguard and defend its image and interests, nevertheless, in order to have a comprehensive view of the problems related to profession, the Law Commission considered it desirable to explore profession's own perceptions on various issues, including its role in strengthening judiciary. The Law Commission accordingly prepared a Questionnaire, annexed at Appendix I, and gave wide circulation to it.

Every attempt was made to send the Questionnaire to the organisations of the members of legal profession, such as Bar Councils and Bar Associations. Anyone interested in the subject was invited to call for a copy of the Questionnaire. The Questionnaire was also sent to each High Court requesting the Registrar to bring the same to the notice of the Chief Justice and Judges of High Court so as to obtain a cross-sectional view. The questions were devised to focus attention on various facets of legal profession, such as:

(i) the state of profession and its public image;

(ii) profession's attitude towards the policy of social change intended under the Constitution;

(iii) the functioning of the Bar Councils and the question of disciplinary jurisdiction;

(iv) the strike by lawyers, its implications and fall out;

(v) the question of hobnobing between the Bar and politicians, between the Bar and the Judiciary;

(vi) regulation and standardisation of fees chargeable by the members of the profession in relation to the monopolistic character of the profession.

2.2. Before the response to the Questionnaire is tabulated, the inadequacy of the response of the organised Bar may be adverted to here. If the Bar Council of India, the apex body of the organized Bar, had responded to the Questionnaire and had shown willingness to have debate and dialogue, the Law Commission would have extended every facility for the same. In tact, Secretary of the Bar Council Trust, who was an expert assisting the Law Commission in the matter of assessing, evaluating and, if need be, reforming the role of legal profession in strengthening the administration of justice, suggested that the Bar Council of India, if some financial assistance is forthcoming, would be willing to organise a representative seminar to discuss the topic.

The Law Commission seized upon this opportunity and agreed to extend financial help within the parameters of its overall policy decision in this matter. Earlier, a suggestion had also emanated from the Indian Law Institute, New Delhi, to organise a seminar on the same subject in collaboration with the Law Commission. So when the Secretary of the Bar Council Trust mooted the idea of a seminar, the Law Commission suggested to him whether all the three, namely, the Law Commission, Bar Council of India and Indian Law Institute, can jointly organise the seminar.

He said that it would be the best thing to do. Accordingly, the Indian Law Institute was informed to be a 'to-sponsor of the seminar. Later on, the Bar Council of India had some reservations about the participation of academics represented by the Indian Law Institute and suggested that the Indian Law Institute should not be a co-sponsor. The Bar Council of India also suggested that it would alone organise a seminar without the financial contribution of the Law Commission.

The dates of the seminar were fixed. The Law Commission had sent its contribution also. Ultimately, the Bar Council of India, for the reasons which need not be elaborated here, returned the contribution made by the Law Commission, postponed the seminar and never convened it. It also failed to submit its response to the Questionnaire. The loss, of course, is of the Law Commission and the Indian legal fraternity.

2.3. Total respondents to the Questionnaire were 36. A list of persons/bodies who responded to the Questionnaire is annexed at Appendix II to this report. The tabulation is as under:-

Legal Practitioners

Bar Councils/Associations etc.

High Court Admn.

Judges

Voluntary bodies/consumers of justice

Academics

7

11

2

6

6

4

Before the views expressed by the respondents are summarised, the grievances against the Questionnaire may be summed up to avoid an unmerited criticism that critique of the Questionnaire is not highlighted. The Bombay Bar Association, while forwarding its responses to the Questionnaire, expressed its chagrin at the language and tenor of the questions, feeling that the queries were framed in a populist manner with a pronounced bias against the legal profession. It appears on a perusal of the questions that the draftsman had already pre-determined some of the issues therein. Some of the questions themselves were unclear, some had built-in assumption and some were illogical'.

In order to appreciate the merit of this criticism, the Law Commission has annexed the Questionnaire as Appendix I to this report. Without commenting on the views expressed, because the Law Commission cannot enter into polemics with the Bombay Association as it started the debate to ascertain the views, the Law Commission would leave it to the readers to look at the questions and make their own assessment. One can only say that the criticism lacks merit. Only one assertion may be made that the truth, hurts. But that is inevitable if introspection is a primary necessity for salvaging the situation in which the profession vis-a-vis the society is viewed.

The Ahmedabad Bar Association, while responding to the Questionnaire, expressed the feeling of the majority of the members that 'the innuendo emanating from the language and the frame of the questions is despicable and hence resented'. On the other hand, the Bihar Bar Council expressed the opinion that, 'the Questionnaire is thought provoking and if answers are forthcoming and are implemented, can accelerate the pace of fulfilment of the goal of social change. It further stated that, 'it is true that contemporary legal profession has fallen in the popular estimation, mainly because lawyers have grown up participating in public activities.

They have now become too self-centred and have concentrated on earning money alone'. Further, it is stated that it is not 'denied that the image of the legal profession in the country has gone down. The factors contributing to the lowering of the image are manifold-some are printable and some are not printable'.

Bar Council of a State represents the Bar of the State and one of its representative also sits on the Bar Council of India. Muzaffarpur Bar Association in the State of Bihar has expressed itself on this point by saying that 'the contemporary legal profession has fallen in the popular estimation because the economical gain and benefit has become their first goal due to economic upheaval and devaluation of money, and their main role to assist in the administration of justice has become subordinate to the said first goal'.

On the other hand, the Bar Council of Punjab and Haryana has stated that 'legal profession has not fallen in the estimation of the general public. It may have fallen in the estimation of the State as it may not have toed the line of the State when it felt endangered'.

2.4. One Bar Council expressed an opinion that there is all round deterioration about the image of every limb of Government and 'the primary responsibility for this rests with the Executive which does not provide sufficient Judges and staff and does not enforce law or itself indulges in lawlessness'. It was also stated that 'the fall of legal profession in the popular estimation has its roots in overcrowding at the Bar, delay in disposal of court cases and inaction and apathy on the part of the Bar Council of India in observing its statutory duties towards legal profession'.

2.5. Before one adverts to the views expressed by persons other than members of legal profession, it must be stated that even amongst the bodies representing the legal profession there is a feeling that the legal profession has suffered devaluation in the estimation of the public. Of course, members of the legal profession would hesitate to accept this impalatable fact. And obviously while stoutly denying this universally accepted fact the organisation of the legal profession would cast aspersions on the Questionnaire which provoked the assertion. That is how the bone fides of those who drew up the Questionnaire have been questioned by at least two bodies which have been specifically set out hereinabove.

2.6. The non-professional voluntary bodies have a different tale to tell. One respondent stated that people are openly saying that the legal profession is no longer service-oriented that it is only profit-oriented, and that the lawyers are out only to squeeze the clients to the maximum extent possible'.

Another voluntary body devoted to providing legal aid to the needy women, opined in a similar reframe that, 'the contemporary legal profession has fallen in the popular estimation because of the greed for money, lengthening of the case for years together, for small reasons and even changing their loyalty to the other party for the sake of money only. Sometimes, lawyers of both sides join hands to make both the parties compromise even if the clients have to suffer the loss. Majority of the lawyers harass their clients for more and more fees, false bills while not taking the required interest in the case'.

2.7. Some Judges of the High Court found time from their busy schedule to respond to the Questionnaire. By aptitude and temperament, they generally chart the middle course. Thus, even though recognizing that 'to some extent the present day profession has moved far from the primary function of the legal profession to assist in rendering justice', it was maintained in the same breath that 'though we cannot go to the extent of saying that its present role is counter¬productive, but a timely introspection and proper change are of immediate necessity'. By and larger Judges were of the opinion that certain modifications in the Advocates Act are desirable and should be carried out on the basis of responses to the Questionnaire received.

2.8. The academics in general tend to perceive the problem of declining standards of professional conduct, not as an isolate but in relation to other problems of society, polity and legal system. It is said:

"Legal profession by itself cannot be an impediment to the administration of justice. It operates as one of the components of the justice system and is subject to stresses and strains generated by other components. Technically speaking, dilatoriness and prolixity cannot be brought about by profession alone; other factors, such as attitude of the Judiciary, complexity of procedural and substantive law, deficiencies in the system of legal education, equally impinge upon the functioning of the system. It is rather the failure of the State to regulate the profession than the grow quick rich propensities of the members of the profession which has been responsible for the existing state of affairs".

2.9. Still another academic states:

"We cannot say that legal profession is an impediment to justice. The complex, technical and formal approach is mainly to seek justice because the justice is filtered through procedures and the consumer gets it clean and unbiased. It is not only the profession but mainly it is Government which is responsible for delays because it keeps the Judiciary understaffed".

2.10. While suggesting measures necessary for restoring the' lost self-esteem and public image of the profession, the academics repeatedly emphasise the necessity of-(i) uplifting standards of legal education, (ii) cautious selection of advocates on the part of Bar Councils; and (iii) the role to be played by the academic lawyers. On the last of these three suggestions, one academic remarks:

"New modalities need to be devised for interaction between academic lawyers and members of the profession. The Legal Education Committee of the Bar Council of India should be reorganised. Representatives of the Committee should be selected from institutions well-known for excellence as also from outstanding academicians who have made contribution to legal education".



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