Report No. 131
Law Commission of India
Questionnaire on the Role of the Legal Profession in Strengthening the System of Administration of Justice
The terms of reference drawn up for the proposed Judicial Reforms Commission were assigned to the Law Commission. One of the terms in the context of studying judicial reforms is 'the role of the legal profession in strengthening the system of administration of justice.' The Law Commission is now poised to deal with this term of reference. The role of the legal profession ordinarily should not resort to strike either to strengthening the system of administration of justice may have to be examined from different angles. One such angle is: what role the legal profession in India can play in promoting and accelerating the process of social change through the instrumentality of legal justice system. The desired social change is in the direction of building-up the egalitarian and equalitarian society as envisaged by the Constitution.
The institution of legal profession is an old one. Its present structure and format have been shaped during the Raj days. Following the Queen's proclamation in 1857, when the Crown, assumed direct responsibility for the governance of India leading to the setting-up of the High Courts in three principal towns, English Barristers and Solicitors came over to India by their training and tradition shaped the legal justice system on British model. The Barristers became the symbol of status. Numerous Indians went to U.K. for becoming Barristers and acquired the British training and culture and tradition and on return to India transformed the indigenous legal profession into the British model.
Even the division in the profession Solicitors-Barristers was on the same lines. Undoubtedly, because of the knowledge of the English language and their contact with British justice system, some of the Barristers of those days participated in the independence movement and played a pioneering role in it. However, on the advent of Independence, the legal profession in India failed to transform itself from one serving the colonial legal justice system into the system suited for the republican India to be governed under the liberty-oriented Constitution.
The profession persisted with the out-dated and worn-out legal formulations of the Raj days and for this purpose, the Court of Appeal and the House of Lords became their source of inspiration. This had led considerably to the present malaise. The most glaring reason being that a system suited to a highly literate elitist society could hardly be effective for a society with high percentage of illiteracy and poverty. With the spread of education, more and more people turned to legal profession as it became very lucrative in course of time. Its fall-out is that the element of service has totally disappeared and the profession is wholly profit-oriented willing to squeeze the maximum profit. All undesirable tendencies unequivocally have entered the profession.
Every institution has to be socially useful for the purpose of transforming the society in which it is operating. The role of legal profession, it being a powerful vocal institution has to be examined in the context of its assistance in achieving the goals of the Constitution, the most important being amongst others to secure that the operation of the legal system promotes-justice on the basis of equal opportunity, and shall, in particular, provide free legal aid, and to ensure that opportunities for s..curing justice are not denied to any citizen by reason of economic or other disabilities.
It is a moot point whether the legal aid movement both voluntary and State-backed came into being on the failure of the legal profession to discharge its social obligations. It cannot be questioned that many in search of justice failed to invoke the jurisdiction of the court for want of wherewithal to pay the lawyer. Legal profession is wholly monopolistic in structure and functioning and it is now necessary to enquire whether the evils of monopoly have overtaken the profession. This is not in the spirit of criticism but introspection to find out solutions.
The Law Commission proposes to examine the role of the legal profession primarily for strengthening the system of administration of justice. The Law Commission has been in touch with the Bar Council of India and also with the bar councils at the State level on various connected issues. These bodies represent the institutional format of the organised Bar. But the society as a whole is interested in the role of the legal profession. The injustice ridden teeming millions of India are the largest body of consumers of justice and they may be given an opportunity to articulate their views.
They may have a grievance syndrome against the legal profession. There are voluntary organisations, activists, protagonists of social action litigation and several others, who may make a useful contribution in analysing, examining and evaluating the role of legal profession. It is to them the Law Commission approaches by this small questionnaire and invite them to participate in the debate. The Law Commission would be interested in responses to the following questions:
1. Is the feeling rampant throughout the people who have to deal with the legal profession, that legal profession is an impediment, roadblock and obstruction to justice because of its dilatory, prolix, technical and formal approach, valid?
2. One of the primary function of the legal profession is to assist in rendering justice. It true that the present day profession has moved far from it and its present role is clearly counter-productive?
3. Law is an instrument of social engineering. Its two most important limbs are the Judiciary and the legal profession. And obviously for achieving the goals, their role must be complimentary to each other. Is it true that instead of becoming complimentary, a sort of a confrontationist situation has developed between the organised profession and the Judiciary?
4. If the answer to the last question is in the negative, how, would you assess and evaluate recurrent strike by the legal profession?
5. The concept of strike came from the World of industrial relations. It subsumes that the one, who is in a position to meet or satisfy the expectations of the other, fails to do so, and by direct action can be made to act in consonance with notions of justice and fairplay. If this assumption is valid, a strike by the legal profession absenting from the court cannot in most of the cases help in introducing notions of fairplay and justice, because the strike is for extraneous reasons such as where police and lawyers came in conflict in some remote city and members of the Bar in the capital went on strike. It is proper for the members of Bar to go on strike in support of their belief that a sitting member of the Judiciary has been unfairly treated by the Government? Would it in the long run not impair the Iand with what justification?
6. How would you view the distinction of the senior members of the Bar to accept Judgeship.
7. If causes which have in fact impeded and obstructed social change in the society such as resistance to agrarian reforms, resistance to bank nationalisation, abolition of privy purses and related items, would it not reflect on the legal profession that it impedes movement towards transformation of society' as contemplated by the Constitution?
8. In what sense-if at all, the contemporary legal profession has fallen in the popular estimation? How would you evaluate the movement amongst consumers of justice for inclusion of lawyers appearing in tribunals and courts set up under socially beneficent legislations?
9. What can be done to restore the lost image or esteem of the legal profession in the country? Among various steps that may be recommended for this purpose, can we also think of some modifications, minor or major, in the existing Advocates Act? Or, can we think of new Act to replace the present one. If so, what can be its general outline?
10. Should the professional bodies such as Bar Council of India or State Bar Councils only confine themselves to "entering" lawyers on their rolls as of now? Should they not lay down specific norms such as the ones lawyers should follow with regard to the poor and indigent clients?
11. Formerly, disciplinary jurisdiction over the members of the Bar vested in the High Court. A demand for Peer's justice led to the profession in the Advocates Act which abolished the jurisdiction of the High Courts and vested it in the Disciplinary Committee of the Bar Council at the State and National level. Has it improved the situation? Would a mere appeal under section 38 of the Advocates Act to the Supreme Court of India, be adequate in restoring the balance?
12. What measures may be taken to curb or contain the alleged hobnobbing and intimacy between:-
(i) The Members of the Bar and Judiciary;
(ii) The Members of the Bar and prosecuting officers.
13. Is it necessary to prevent a tie-up between professional bodies on the one hand and politicians and political parties on the other?
14. Is it desirable to have a standardised schedule of fees that may be charged from the clients? If so, how should it be arrived at? How would it be enforced?
15. What can possibly be done to tone down monopolistic character of professional business? It is possible to think of some norms for distributing case-load among seniors in the bar and those who are relatively juniors?
16. Is it not now opportune to devise a system by which indigenous litigants must be in a position to appear before courts and tribunals on their own and be assisted by voluntary agencies and para-legal bodies?