Report No. 131
Conclusions and Recommendations
3.1. Legal profession enjoys on the one hand uninhibited eulogy and on the other hand no holds barred condemnation. Free from either, objectively and dispassionately, the role of legal profession may be examined with a view to making its role justice and people oriented.
3.2. Socialists and analysists, have found something in the atmosphere, of the law schools which tend to produce a finished product which is impervious to change. Charles Reich in this context said:
"Finding themselves in law school (students) discover that they are expected to become 'argumentative' personalities who listen to what someone is saying only for the purpose of disagreeing; 'analytic' rather than receptive people, who dominate information rather than respond it; and intensely, competitive and self-assertive as well. Since many of them are not this sort of personality before they start law school, they react initially with anger and despair, and later with resignation In a very real sense, they 'become stupider' during law school, as the range of their imagination is limited, their ability to respond with sensitivity and to receive impressions is reduced, and the scope of their reading and thinking is progressively narrowed."1
1. Charles A. Reich The Greening of America, extracted by Mark H. McCormack The Terrible Truth About Lawyers, (1987), p. 34.
3.3. This led George Bernard Shah to quip that, "All professions, are conspiracies against the laity In a society where justice, in theory, at least, is held up as the highest ideal lawyers", it is said, "are always looking for technical and sometimes dubious means of bending the law to their advantage."1 The criticism against the profession is as old as the profession itself. William Shakespeare said that 'the first thing to do, let us kill all the lawyers'.
1. Ibid., Preface, p. 9.
3.4. Abjuring this criticism, in our country, the role of legal profession has, to be assessed in the context of the constitutional mandate as set out in Article 39A of the Constitution. It is the duty of the State to secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.1 The role of legal profession in strengthening administration of justice must be in consonance with the intendment underlying Article 39A.
In other words, in an adversary system as in vogue in law courts being the fulcrum of administration of justice, the role of legal profession must ensure equal opportunity to all litigants in search of justice. In the process, opportunity for securing justice should not be denied to any citizen by reason of economic or other disabilities. Legal profession is expected to ensure that anyone who has not the economic wherewithal to seek justice must not turn away from law courts on the only ground that he is unable to incur necessary expenditure for securing justice.
Equally important is the fact that social disabilities should not deny access to centres of justice of which legal profession is an integral and inseparable adjunct. The State, which has conferred a monopoly on the legal profession by permitting it to regulate its own admission, qualification for admission and be the regulator of its own internal discipline, should so conduct itself as affording every facility for securing justice. To discharge this obligation, the legal profession must make its services available to those needy who otherwise cannot afford to pay the cost of legal services.
Costs as also their other social disabilities may not come in the way of legal profession assisting such persons from securing justice. The profession must develop its own public sector. Briefly stated, ways and means must be devised so that the profession plays a meaningful role in promoting the quality of justice and to bring about such changes in society as are in consonance with the egalitarian goals, to which we are committed both constitutionally as also as our policy objectives. Within these parameters, the role of legal profession in strengthening administration of justice must be spelt out.
1. The Constitution of India, Article 39A.
3.5. Monopoly is resented by the society because consumers of the monopoly can be held to ransom in the absence of availability of alternative services. A monopoly without a liability of accountability is likely to lead to tyranny. It is unquestionable that legal profession is monopolistic in character. This does not need elaboration. If the profession is monopolistic in character, it must be accountable to the consumers of its services and let the consumer class be not narrowed down only to litigants.
Even the court system of which it is an integral part can be said to be the consumer of its service. Therefore, apart from the wider concept of accountability of monopolistic profession to the society at large, there must be ways and means of making the legal profession accountable to the litigants and the court system.
3.6. The legal profession continues to be central to the socio-political domain of the Indian society, its structure as well as process tend either to change or sustain the existing order of things. Members of the legal profession constitute the single largest group in Parliament which is vested with the task of taking the most vital decisions affecting the present and future of the Indian nation. It can, therefore, be stated with confidense that they do exercise the single largest influence over the national life. The members of the legal profession can, therefore, have a decisive voice in law-making.
Therefore, they can also promote the quality of justice by so shaping the laws as would advance justice. It is true that the professional bodies of the members of the legal profession are sensitive to criticism because some of them viewed the Questionnaire of the Law Commission as motivated. Even in the matter of strike, the members of the profession asserted that right to strike is beyond question. An impression is likely to be formed that the members of the profession are keen to guard their own interests notwithstanding the fact that by their attitude sometimes public good is impaired. The profession must maintain the difference between profession and guild or business.
3.7. Therefore, the question must be posed: What can the organised profession do at their level individually and collectively to promote the quality of justice? The answer lies in the intendment underlying Article 39A.
3.8. It is unquestionable that in any organised profession, there are bound to be some persons who are unable to maintain the high standard of profession. In some cases, evidence reveals a sordid state of affairs in lawyer-client relationship. This itself cannot be sufficient to condemn the profession as a whole but this aspect cannot be ignored also. It is here the question of accountability of the profession to the litigant and system comes to fore. The leaders of the Bar must show a deliberate concern with the fate of the poor and the indigent by volunteering to take up their cases in courts of law.
They must also take up the role of questioning the credentials of persons who do not maintain high professional standards, its accountability by introspection or by internal regulation of the profession. It must submit itself to social audit. It is too much to expect a litigant coming from rural areas to understand what is expected of his lawyer and to complain against him if he feels cheated and thereafter to prosecute his complaint before the Bar Council. It is for the profession to provide a self-regulating mechanism whereby it takes notice of an errant lawyer and deals with him without anyone coming forward to lay a complaint.
This would be its first and foremost task, namely, to perform its duties both towards the profession and the wider society. Maintenance of the irreducible minimum standards of profession cannot be left to members of the society complaining against anyone. That is a tall order. Accountability can be provided for by a self-regulating mechanism. This must also include an improper or unprofessional behaviour in the court that would be impairing the system.
3.9. The foremost requirement of the present day is to reclaim the glory of the profession. No doubt there are some sociologists who believe that the prestige of the legal profession since the independence has not declined. It is said that "a perusal of facts available suggests that the public position of Indian lawyers has not declined after independence."1 Of course, he reaches this conclusion by asserting that the "lawyers had prestige in the context of anti-colonial struggle the as professionals but as freedom fighters.
Not that some of them did not enjoy lucrative practice; but they were venerated by the people precisely for giving up the same, for altruism they demonstrated."2 On the other hand, the role of the profession in independence movement is eulogised by asserting that the profession had pragmatic and dynamic participation in the socio-political history of the past two centuries but as against this backdrop, the present times present a picture of contrast.3 In the year 1958, a finding was based on the evidence collected by the Law Commission that "There is a fall in efficiency and standards at the Bar.
The recent recruit to the profession is said to be inferior in his legal equipment, less pain-staking and in a hurry to find work".4 Three decades after, a leading Gujarati daily described the members of the legal profession in its editorial columns as kajiya dalals (dispute brokers).5 The editor went on to state that the members of the legal profession have been encouraging litigation more and more by giving impetus to disputes.
1. T.K. Oommen The Legal Profession in India: Some Sociological Perspectives in N.R. Madhava Menon (Ed.) The Legal Profession: A Preliminary Study of the Tamil Nadu Bar, (1984), p. 3.
2. Ibid., p. 4.
3. Dr. J.S. Gandhi Lawyers and Touts: Study in the Sociology of the Legal Profession, p .33.
4. LCI, 14th Report, Vol. 1.
5. Narottamdas L. Shah v. Patel Maganbhai Revahhai, 1984 Gujarat Law Herald 687.
3.10. By a concerted action to be taken by the organisation of legal profession, a serious attempt should be made to erase this picture of the profession even if it is in the minds of few. Every step has to be taken to restore the respectability and credibility of the profession not only in the eyes of the society but even the litigating public.