Report No. 131
3.21. As pointed out earlier, a time has come when, as the system is under such a stress that it is likely to collapse, alternative modes of resolution of disputes must be seriously explored. One such mode which the Law Commission has examined and already recommended is pre-trial conciliation proceedings. It is the lawyers appearing on either side who can encourage the client to agree to refer the matter to the Conciliation Court. The Law Commission has already recommended setting up of such Conciliation Courts in all urban areas.
A Conciliation Court scheme has been devised by the Chief Justice of the Himachal Pradesh High Court. The same has been annexed as Appendix V to the earlier report of the Law Commission.1 Further, the whole scheme has been discussed in detail.2 The success of the scheme wholly depends upon the members of the legal profession assisting the parties in adversarial system.
1. LCI, 129th Report, para. 3.21 and Appendix V.
2. Ibid., paras. 3.21 to 3.29
3.22. It has been pointed out repeatedly that legal profession is monopolistic in character. A monopoly tends to be impervious to the consumers of its service. Why the profession is called a monopoly, profession need not be discussed here; only two salient features which make it a monopoly may be referred to. The members of the profession have a power to regulate admission to the profession and they alone, save in rare cases where the court permits someone else to appear and plead in courts, have the right to appear and plead cases in courts. It can decide charges for its services. Therefore, it cannot be gainsaid that the profession is monopolistic in character.
3.23. Monopolies are generally frowned upon. Monopoly abjures competition. Absence of competition tends to adversely affect the services rendered by the monopoly. Competition in a market economy guarantees both the price and the quality. Monopoly forswears competition.
3.24. Article 19(1)(g) guarantees to a citizen the right to practise any profession, or to carry on any occupation, trade or business. This right is subject to the reasonable restriction that can be imposed under clause (6) of Article 19. As clause (6) was originally drafted, a question arose whether the Union or the State Legislature was competent to pass law in regard to commercial and industrial monopolies. The State of U.P. set up a monopoly of transport for operating bus services under the name and style of Government Roadways. This action was challenged and the Allahabad High Court struck it down as unconstitutional, holding that such a monopoly totally deprived the citizens of their rights under Article 19(1)(g).
By the Constitution (First Amendment) Act, 1951, clause (6) of Article 19 was amended to confer power on the State, either by itself or by a Corporation owned and controlled by the State to carry on any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. After this amendment, it was again contended before the Supreme Court that the 'amendment made in clause (6) has not the effect to exempt the law passed from creating a State monopoly from application of the rule prescribed by the first part of Article 19(6).1
Upholding largely the validity of the legislation, namely, Orissa Kendu Leave (Control of Trade) Act, 1961, the Court observed that the essential attributes of the law creating a monopoly will vary with the nature of the trade or business in which the monopoly is created. They will depend upon the nature of the commodity, the nature of commerce in which it is involved and several other circumstances. The purpose of this discussion is to point out that monopoly has the inbuilt tendency to abuse its position. If legal profession is monopolistic in character, as it unquestionably is, provision has to be made to free it from the possible abuse. Accountably would be check on abuse.
1. Akadasi Padhan v. State of Orissa, 1963 Supp 2 SCR 691.
3.25. What constitutes accountability especially in or in relation to legal profession? Ordinarily, accountability is confined to professional ethics, discipline and professional regulation. There is, however, a body of opinion that accountability of legal profession has a broader spectrum than mere ethics, discipline and regulation. It inheres public perception of professional responsibility and professional response to such public perception. It also concerns itself with public expectation aroused by professional services. In the context of legal profession, constitutional goals and the role of legal profession in achieving the same would also constitute a parameter of accountability.
In short, the determinant is the involvement of professional interest with public interest and their ultimate coincidence.1 In thus specifying the parameters of accountability, it was noticed that 'the movement of all professions, hitherto has been from chaos to organisation, organisation to consolidation and consolidation to autonomy and monopoly'. On achieving the monopolistic status, a general outcry against it is heard. 'It is said that they are exclusive; they are elitist: they do not represent the people; they show no concern even for the basic problems of the people.
Their contribution to society is minimal. Lawyers and Judges, doctors and surgeons working and non-working journalists, teaching and non-teaching teacher from a holy alliance to intimidate any layman presumptuous or foolish enough to enter into a dialogue with them People are slowly fed up of the professions and there has now emerged a demand for accountability.2
Recalling the famous statement of Jimmy Carter, the former President of United States of America, that 'lawyers as a profession have resisted both social change and economic reform', it was said that 'the Bar must remember that its members must make out a prima facie case for the monopoly it enjoys and reorganise the profession into a public sector which ensures human rights and remedies against human wrongs to the weakest and the protestant. Public law demands of public profession public commitments in public interest and disrobes it of its mistakes.'3
1. O. Chinnappa Reddy, Former Judge of the Supreme Court of India on Accountability of Professions, 14(4) Indian Bar Review, 1987, p. 624.
2. O. Chinnappa Reddy, Former Judge of the Supreme Court of India on Accountability of Professions, 14(4) Indian Bar Review, 1987, pp. 623-624.
3. Ibid., Justice V.R. Krishna lyer, former Judge of the Supreme Court of India, p. 658.
3.26. To some extent, disciplinary jurisdiction over the errant members of the profession may provide a corrective against monopoly. As pointed out earlier, disciplinary jurisdiction, till Chapter V of the Advocates Act, 1961 came into force, vested in the High Court under sections 10 and 13 of the Indian Bar Councils Act, 1926. While discussing the debate, it has in terms been pointed out that the peer's justice system is far from effective. That is not, only the view of the consumers of services of legal profession but even some experts closely associated with the functioning of the Bar Council of India.
It is, therefore, time to have a second look at the disciplinary jurisdiction enjoyed by the members of the profession itself. Without attempting to introduce any far-reaching change, the High Court must be invested with suo motu power to review the decisions of the Disciplinary Committee of the Bar Council of State. Either the High Court should be invested with jurisdiction to do it suo motu or at the instance of the complainant.
An appeal to the Bar Council of India and a further appeal to the Supreme Court of India is beyond the reach of many indigenous litigants. Therefore, a step of minor significance should be taken by investing jurisdiction in the High Court suo motu to review the decision of the Disciplinary Committee of the Bar Council of the State or the power must be exercised at the instance of the complainant or at the instance of the Advocate General of the State.
3.27. On the vexed question of strike, having given earnest consideration to all the arguments for and against, it can be said that the members of the legal profession not in general but with specific reference to ventilate their grievances or in support of some causes held dear by them. At any rate, any strike on the supposed ill-treatment of a member of the Judiciary must be wholly avoided because it has the pernicious tendency of eating into the vitals of the independence of the Judiciary. It is too obvious to need spelling out. One may spellout a rare cause on which the strike is justified but it must be treated as the weapon of last resort.
If the administrative side of the court creates serious difficulties in the way of the members of the legal profession practising in the court and these are remediable, the members of the profession practising in the court should highlight the difficulties and bring them to the notice of the presiding Judge, informing him that these are remediable problems. On such information being laid with the presiding Judge, immediate steps should be taken to convene a meeting of the representatives of the Bar and of the presiding Judge and to undertake deliberations and dialogue to find out the solution.
If the presiding Judge or the administrative side of the court turns deaf ears to the difficulties experienced by the members of the profession which have been brought to the notice of the administration, an intimation may be given that, as a matter of last resort, strike would be resorted to. Save this exceptional area, the strike by the members of the legal profession on the ground of their dispute with police, other administrative departments or some other grievances not attributable to the court administration must be wholly eschewed. This is suggested in the larger interest of the consumers of the service of legal profession the harassed victims of the strike.
3.28. No one can seriously question, though evidence of a concrete nature is hard to come by for reasons not difficult to foresee, that the fees charged have reached astronomical figures. There may be a class of litigants who can afford the same. But that microscopic minority class need not destroy the culture of legal profession nor the market of fees. If legal profession enjoys a monopoly through a statute passed by Parliament, it is the duty of the Parliament to prescribe fees for the services rendered by members of the legal profession.
The profession cannot merely have privileges and no obligations. It is time, therefore, to take a first step to prescribe the floor and ceiling in fees. The organised Bar must have administrative department where the client can go, pay the prescribed lees and seek the assistance of a lawyer. Therefore, there is no negotiation for fees and nothing more is payable. It is not for a moment suggested that some revolutionary suggestion is being pressed into service. Look around and there are countries where this system is in vogue.1
1. As for example, U.S.S.R. and German Democratic Republic.
3.29. An additional limb in support of the recommendation that the fees chargeable by the members of the legal profession for their services must be standardised within the floor and the ceiling is that, according to the representatives of the organised profession, a large number of lawyers are unable to earn minimum to keep body and soul together. The representatives of the organised Bar approached the Government of India for enacting a legislation to set up Advocates Welfare Fund.1
The Government of India appointed a Committee under the chairpersonship of retired Judge of the Supreme Court of India and Member of the Rajya Sabha, Mr. Justice Baharul Islam. The Committee has submitted its report recommending setting up of the Fund as well as the method of funding the Fund. The. Committee has also drawn up a model Bill that may be moved in the Parliament. If this is the assistance which members of the legal profession seek from Parliament, it is equally their duty to accept the power of the Parliament to prescribe fees, beyond which no one can charge.
1. As for example, U.P. State Advocates' Welfare Fund.
3.30. Closely allied to the question of prescribing the floor and ceiling in fees chargeable by members of the legal profession for rendering service to litigants is the question of providing totally free service to a class of litigants who are unable even to pay the minimum of fees. The philosophy underlying Article 39A of the Constitution has to be translated into an action-oriented programme. Even if the ceiling and floor in fees are prescribed, there will still be members of our society who would suffer denial of justice because they can ill-afford the fees payable to the legal profession.
The fee would be a barrier to access to justice. Article 39A was a promise to them, when it was said that the State shall ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. If such seekers of justice who cannot even afford to pay the minimum, fees would suffer denial of justice on account of economic disability, Article 39A would stand violated. To make effective the intendment underlying Article 39A, the legal profession has to gear up to provide service to such seekers of justice. The legal profession is, to all intents and purposes, in private sector.
The medical profession is also in private sector but free public hospitals have been set up where anyone can get medical service without the obligation to pay any fees. The poorest can have access to such hospitals. Unfortunately, till today, there is no public sector in legal profession. It is the duty and obligation of the organised legal profession to set up its public sector unit where the services of its members would be available to those needy who cannot afford to pay the fees for their services.
Legal aid scheme operated by the Government of India to some extent helps in this behalf. However, concrete measures have to be taken to set up public sector clinics, operated by members of the legal profession, where anyone who is needy and cannot afford to pay the fees of the private sector can walk in and not only get advice but even initiate proceedings for seeking justice. This is an overdue measure which the legal profession must undertake. To some extent this will also resolve the problem of accountability.
3.31. That brings us to the last lib of our examination. The approach herein indicated flows from the monopolistic character of the profession. If, as stated earlier, accountability is a check on the abuses of monopoly, equally social audit of the profession is a positive check on possible abuses of a monopoly. That needs us to spell out what is social audit. This term has been made current by the sociologists and is very much in vogue when sociology of professions is examined.
The Law Commission uses it in a limited sense. As pointed out earlier, a complaint by an aggrieved litigant against a member of the legal profession is hard to come by for the fear that the concept of Peer's justice would permit probing of the charge by the compatriots of the delinquent lawyer himself. Social audit must be done by a body which does not inhere preponderance of the members of the legal profession. And the audit, to be effective, must be by a body representing persons who would otherwise claim to be aggrieved.
Two institutions can effectively jointly undertake social audit of the profession. That consists of the members of the Judiciary who day in and day out have directly to deal with the members of the legal profession. And the other body consists of consumers of justice. They know where the shoe pinches. Therefore, the Law Commission is of the opinion that the social audit of the errant members of the legal profession as well as of the profession as a whole must be undertaken by a body to be statutorily constituted by introducing adequate provisions in the Advocates Act, 1961, to consist of retired Judges and consumers of justice.
A methodology will have to be devised to give representation to the consumers of justice. The constituency must be of those who had to go to the court and had an unfair treatment at the hands of the members of the legal profession. It is, therefore, for consideration that legal profession must individually and collectively be subject to social audit by a body herein indicated.
3.32. If all the steps herein indicated are taken, the role of the legal profession in strengthening the system of administration of justice would be fully appreciated and the situation, both qualitatively and quantitatively, change for the better.
3.33. The Law Commission recommends accordingly.