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Report No. 129

5.11. There is a tremendous misunderstanding about the role of legal profession. Apart from the larger question of the role of legal profession in a constitutional democracy, even on a narrower plane as officers of the court involved in dispensation of justice, their accountability to the society has not been spelt out. As officers of the court involved in the process of resolution of disputes, they have to contribute to bring about a satisfactory resolution of disputes. This is specifically the role of legal profession in adversarial system. Instead there is a tremendous misappropriation about the role when occasionally they are condemned as 'brokers interested in perpetuation of disputes'.

A leading Gujarati daily 'Jai Hind' described them in editorial columns as kajiya dalals. A prosecution was launched against the editor, complaining of defamation of the members of the profession. A petition was filed on behalf of the editor in the Gujarat High Court praying for quashing the prosecution.1 The court meticulously examined, the role of legal profession in the modern society and especially in India, pointing out that the profession has suffered erosion in its status. Undoubtedly the court also peeped at the other side of the picture which was described as brighter side.

Legal profession has evoked high admiration and pungent criticism. It is time for the profession to sit up and re-appraise its role in the modern society and find ways and means of establishing its accountability to the society. The profession has to have a re-appraisal of its behaviour qua courts, qua clients, their life style, all of which enter the verdict about the role of the profession. One can look upon with pride at the role of the legal profession in our movement for independence. But since the independence, even though one may not like to admit, the profession has lost its place of pre-eminence.

The strike of the lawyers in Delhi for months end with balance sheet of profit and loss to the legal profession yet to be drawn up, coupled with the acrimonious exchange before Wadhwa-Goswami Committee, would leave not doubt in the mind of anyone that it did not cover the profession with glory. Its net outcome, one can say with confidence, is that as the cases were not being heard, arrears further piled up and the worst sufferers were neither the Judges nor the courts nor the lawyers but the litigants for whom the profession claims to exist. This fall cut reveals the total absence of social audit and accountability of the profession to the society.

1. Narottamdas L. Shah v. Patel Maganbhai Reyabhai, 1984 Gujarat Law Herald 687.

5.12. Legal profession is a monopolistic profession. Every monopoly has an inbuilt potentiality of the abuse of its monopolistic character. Legal profession has been described as monopolistic in character because unless one is a member of the club, entry to which is by enrolment by Bar Council composed of lawyers, one cannot practise before a court or tribunal. To that extent, it is a closed door club with eligible criterion for entry and the power to grant admission vests in the members of the profession.

It is thus a monopolistic profession. Therefore, in order to curb the necessary evils of a monopoly, it is of primary importance that a monopoly, it is of primary importance that a monopoly must accountable to the consumers of its service. In the wider perspective of constitutional democracy, apart from accountability to the consumers of justice, namely, litigant, a profession given monopolistic character by the society itself must be accountable to the society at large. It is this dimension of the profession which by some method must now be highlighted. There can be a multi-dimensional approach to this aspect. The Law Commission in this report touches only one.

5.13. Apart from litigation involving Government or a public servant acting in discharge of his duties, there are certain statute under which a right cannot be claimed unless a notice of demand is served upon the person against whom the right is claimed and relief is to be prayed for. Section 80 of the Code of Civil Procedure prescribes a statutory notice to be served in the manner prescribed in the section when either a Government or a public servant acting in discharge of his duties is to be sued. Similarly, under the Transfer of Property Act, if the landlord wants to re-enter the premises demised by him, a notice terminating the tenancy has to be served unless the tenancy has expired by efflux of time.

This position has hardly undergone a change even after the introduction of Rent Acts. Even when a writ petition is to be filed praying for mandamus a notice making demand of justice has to be served. The concept of serving notice deserves to be expanded to all potential areas where conflict may lead to litigation. The Law Commission is of the view that in any litigation except where some urgent relief is necessary, a notice of demand must be issued on behalf of the person who claims a certain right or relief against another person which may as well include an artificial person or a juristic person.

The purpose in introducing a stage of notice is to inform the other side that a litigation is contemplated and give him an opportunity to avoid litigation. If the other side is not enamoured of litigation and is willing to act fairly and justly, the notice will put him on the guard that a possible litigation is threatened unless the parties meet and resolve the dispute.

5.14. Ordinarily the party seeking to initiate any suit or legal action will approach the lawyer first. The lawyer should give a notice and in that notice he must specify that the other side should on receipt of the notice, nominate his lawyer. This must be made obligatory. Once the other side nominates his lawyer and replies to the notice, it must be made statutorily obligatory for both the lawyers to meet within a period of 15 days within which action can be commended. Even if the limitation for the suit or legal action is to expire, by a statutory provision it will be extended by 15 days being the period of grace within which the lawyers must meet.

At this meeting, the lawyers should start appreciating each other's point of view, exchange evidence and attempt to find out whether a reasonable solution of the dispute by fair approach of give and take is possible. Minutes of the meeting must be maintained. If the dispute is resolved, the consent terms must be drawn up and submitted to the court under Order XXIII, rule 3 of the Code of Civil Procedure upon which the court must pass a consent decree. If the whole dispute is not resolved in course of the negotiations at the meeting but a partial agreement is achieved, the same must be recorded and treated as binding on both sides.

The litigation may start only for the remainder of the dispute. Failure to resolve the dispute at the negotiating stage may permit a litigation to be started but in that event the plaint must aver that such an effort has been made and the document evidencing the attempt must be disclosed along with the plaint. The other side, on being informed that litigation has been filed must appear without waiting for a summons to be served. The court must then enquire about the area of dispute not resolved and served. The court must then enquire about the area of dispute not resolved and refer the matter to the Conciliation Court. If possible, the Conciliation Court should persuade the parties to come to a fair settlement.

The Conciliation Court, after having perusal of the documents prepared at the negotiating stage must ascertain which party was unjustifiably recalcitrant at the time of negotiation. It must be ascertained at two stages, namely, at the stage of meeting of the lawyers and at the stage when the matter is dealt with by the Conciliation Court. Ultimately if the trial goes on, the party shown to be recalcitrant and also shown to be unjust in approach must be visited with heavy cost, inclusive of the cost of establishment of the court as spelt out by the Law Commission in its earlier report.1

1. LCI, 128th Report on Cost of Litigation.

5.15. To reclaim the glory of the profession, only a minor step is suggested here. If implemented in letter and spirit, the Commission is confident that instead of being accused of being 'brokers of dispute', they would acquire the status of healers and solvers of dispute. In order to bring about this result in a small way, the Law Commission recommends that on the notice and the reply being exchanged, a statutory duty must be cast on the lawyers to meet and either resolve or narrow down the area of dispute and regular reports of the achievement in this behalf must be published. That published report would be subjected to social audit which would not only help in improving the image of the profession, but would provide objective evidence of their contribution to reclaiming the system under unbearable pressure.



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