Photograph of Anil Chawla

BASE PAPER


FOR

NATIONAL SEMINAR ON JUDICIAL REFORMS

Held on 2nd-3rd December, 2000 at Chennai

Organized by Department of Culture, Government of India

On the occasion of 50th Anniversary of Republic

ADVOCATES


Author - Anil Chawla



A. INTRODUCTION

Advocates are Officers of Court and are an important link between the common man and the Judiciary. In the system of judiciary that we have inherited from the British, a judge is constrained by the advocates of the two sides. It is not generally possible for a judge to initiate any inquisitorial process or to go beyond the arguments presented by the opposing lawyers. Hence, the role of competent, sincere, honest, professional lawyers is crucial to the judicial process.

Unfortunately, the state of the profession of lawyers in India leaves much to be desired. It is essential that a candid debate is held among the members of the profession and judiciary as well as among users of the judicial system to make the profession more responsive to the needs of the users as well as to help the profession regain its lost glory.

The key issues that need to be addressed in this debate can be summed up as follows:

This paper makes an attempt to put the issues in a perspective. It is acknowledged that the issues are complex and that there can be no easy painless solutions. On the other hand it is also to be appreciated that fear of swallowing bitter medicines can only lead to bitter results.

B. ENTRY LEVEL PROFILE

During the past five decades, the entry level profile of lawyers has undergone a sea change. It needs no survey to find out that the average person enrolling for L.L.B. in any university in India is someone who has failed to become an engineer, doctor, IAS, MBA or even chartered accountant or company secretary. Improving the level of persons entering the legal profession needs to be addressed to by all those who are concerned about the future of civil society in India. Second-grade and third-grade entrants to the legal profession can only lead to a collapse of the judicial system which is the foundation of a civil society.

C. COMPETENCE

It is a sad commentary on the state of the profession that a fairly large number of fresh legal graduates can not even draft an application. The falling standards of some universities have produced a crop of lawyers who do not deserve to be called lawyers. It is no wonder that many of them resort to all sorts of shady practices that bring disrepute to the profession as a whole.

During the last few decades, the complexity of laws has increased manifold. New laws and specialized fields have appeared that require specialized knowledge. Fields like Taxation, Company Law, Service Matters, Insurance, Intellectual Property, Cyber Laws, International Law and Constitution require years of study.

Section 16 of Advocates Act classifies Advocates as Senior Advocates and Other Advocates. Senior is "by virtue of his ability, standing at the Bar or special knowledge or experience in law". It may be worthwhile to examine if the classification of advocates needs to be re-defined and expanded to keep in line with the modern times.

In view of the above, the following suggestions may be debated:

  1. An All India Examination to be introduced for all those who apply for membership of Bar Council. In other words, a Bachelor of Law will get the right to practice only if he clears the proposed examination. This can also be useful at a later date for enabling foreign lawyers to practice in India (may be required under WTO terms).

  2. Specialized Post-Graduate Certificate Courses and Exams (Conducted by Bar Council) for specialized branches of law. These may be open to advocates as well as to Chartered Accountants, Company Secretaries, Cost Accountants, Engineers etc. and may give right to practice in that field of law. Simultaneously specialized fields may be closed for advocates who are not qualified in that field.

  3. Advocates Act to be amended to give effect to the above proposals and to create new categories of specialized advocates rather than seniors and others.

  4. A system of enabling trainee lawyers to work as clerks of court.

D. WORK DISTRIBUTION

In most courts in India, a small percentage of lawyers have an unmanageable work load while others have so little work that they can barely survive. This leads to problems at both ends of the spectrum.

Senior overloaded lawyers employ a bunch of juniors whose only job seems to be to go to various courts and seek adjournments leading to delays. Many of these overloaded lawyers read a case file only when they are standing before the bench.

Under-worked lawyers who find it difficult to survive cannot afford to buy books and journals that are necessary to provide professional service. Faced with the struggle for survival, they resort to unethical practices. Moreover, the plight of lawyers during initial ten-twenty years turns away potential bright lawyers who join other fields that do not have such a long period of struggle.

In view of the above, the following suggestions may be debated:

  1. A maximum number of cases be prescribed for each lawyer. In case of partnerships of lawyers, the cases permissible will be correspondingly higher. Each lawyer or registered firm of lawyers will be required to submit a quarterly list of cases where the firm has filed a Vakalatnama. This is in line with the limit imposed on Chartered Accountants regarding the maximum number of audits that a CA can undertake.

  2. Juniors (excluding partners) working with a senior lawyer or a firm of lawyers to be registered and to be paid minimum wages as may be prescribed.

E. COMMITMENT

Sincerity and commitment to the profession are essentials that one cannot overemphasize. No profession can earn any respect or be considered dignified if its members are insincere or display a poor sense of commitment. One has to meet a cross-section of litigants to hear horror stories about the way some lawyer or the other behaved. The sad part is that a handful of black sheep may be giving the whole community a bad name.

In view of the above, the following suggestions may be debated:

  1. Two consecutive adjournments by a junior on the ground that the senior is busy in some other court or two consecutive absents without application to the court to be sufficient ground for the judge to strike off the Vakalatnama of the concerned lawyer from the case and to issue a notice to the party to engage some other lawyer.

  2. In all cases where a lawyer is absent without giving sufficient reasons on a date of the case after filing a Vakalatnama, the judge to compulsorily impose fine on the concerned lawyer. In any such case it will be no argument on the part of the lawyer that the client has not paid his fees. The lawyer may, however, file an application to the Court with a copy to the client for cancellation of his Vakalatnama.

  3. "If an Advocate appearing for a party is absent without reasonable cause and if the judge disposes of the case after recording a finding in this behalf against the lawyer such a finding should amount to misconduct. Copy of it should be forwarded to the Bar Council for appropriate action being taken." (Recommendation no. 81 of The Arrears Committee, 1989-90)

  4. "If the lawyer is absent without justifiable cause and the case is decided in his absence, the lawyer should be directed to personally deposit in the registry a statutorily fixed amount as compensation. The party should be informed of the lawyer's absence and the order by the Court. Suitable statutory provision should be made in this behalf." (Recommendation no. 82 of The Arrears Committee, 1989-90)

  5. In case a judge is of the opinion that a lawyer has not argued the case of a party with adequate preparation or has omitted to raise points essential to the case, the judge to be duty bound to advise the concerned party to engage some other lawyer and give time to the party in this regard.

F. ETHICS

The three major charges of unethical practices relating to Advocates can be summed up as follows:

  1. Conflict of Interest A Lawyer (or two partners in a Firm of Lawyers) accepting briefs from conflicting parties

  2. Underhand payment from opposite party A lawyer accepting money or other favour from opposite party to damage his own client

  3. Acting as middleman for bribing judges, judicial officers and junior employees of Courts.

Needless to say that all three are condemnable practices but are prevalent in India. The existing system of disciplining lawyers through State Bar Councils has proved inadequate for the task. Steps to strengthen the present system or to work out an alternative need to be debated.

G. CONCLUSION

Advocates are an important foundation of judiciary. Efforts should be made to get talented persons to join the profession. Competency rather than years of experience should be emphasized and efforts undertaken to improve the competency of advocates in general as well as in specialized fields of law. A fair distribution of work among young and old should be ensured. Sincerity, commitment and ethical practices are essentials for any professional. These laudable objectives will, of course, need well-thought-out steps to be implemented with a firm hand.


ANIL CHAWLA

14th September, 2000

Please write to me your comments about the above article.
anil@samarthbharat.com
hindustanstudies@rediffmail.com



ANIL CHAWLA is an engineer by qualification but a philosopher by vocation and a management consultant by profession.


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