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Reformation of the Legal Profession in the Interest of Justice

Yashomati Ghosh (yashomati@nls.ac.in) is an associate professor at the National Law School of India University, Bengaluru.

The legal profession plays an important role in society—advocates are flag-bearers of the law and defend fundamental rights. They are also officers of the court. The Advocates Act, 1961, grants power to the Bar Council of India and the state bar councils to self-regulate the profession and establish rules relating to admission and enrolment, conditions of practice, standards of professional conduct and etiquette, disciplinary proceedings, legal education, recognition of law colleges, and welfare activities.

 

The legal profession is one of the very few professions mentioned in the Constitution. The role of the legal profession in society is manifold—its members are flag-bearers of the rule of law and they defend fundamental rights. Along with these responsibilities, members of the legal profession have been conferred significant power and privileges as officers of the court. First, only advocates have the right to access and represent others in a court of law. No citizen, other than an advocate, has the right to appear, act, or plead in court. Every citizen depends on members of the legal profession for the fulfilment and enjoyment of their legal rights and to enjoy the status of first-class citizens. Second, in India, the term “legal professionals” refers only to those “advocates” who are law graduates and have been enrolled in state bar councils (SBCs). An emerging class of legal professionals engaged with various law-related activities—such as government law officers, corporate lawyers, law firms, law professors, legal researchers, and patent attorneys—have been excluded from recognition as advocates. Third, the judiciary has clarified the otherwise undefined concept of “practice of law” to include all forms of legal activities, including both litigious and non-litigious work, such as appearing in court, drafting, giving opinions, performing transactional work, consulting, arbitrating, mediating, filing vakalatnamas (power of attorney), and working as legal officers. Thus, “advocates” enrolled in bar councils enjoy exclusive monopoly over the right to practise law in all courts, tribunals, and other authorities in India.

The members of the legal profession were granted monopoly of the right to practise law by the Parliament in recognition of the pivotal role they played during the Freedom Struggle and their high ethical and moral professional standards. The Advocates Act, 1961, enacted with the objective of creating “a unified Bar for the whole country with monopoly in legal practice and autonomy in matters of professional management,” conferred the Bar Council of India (BCI) and SBCs with the power to self-regulate the profession and lay down rules relating to admission and enrolment, conditions of practice, standards of professional conduct and etiquette, disciplinary proceedings, legal education, recognition of law colleges, and welfare activities. These powers were granted to the bar councils to promote the administration of justice and uphold the dignity of the profession in the eyes of the common people.

Failure of the Bar Councils in Fulfilling Statutory Duties

Over a period of 20 years, it has become apparent that the bar councils have failed to perform their statutory duties satisfactorily; their enjoyment of unregulated monopoly power and absolute functional autonomy had created an atmosphere of total unaccountability among many members of the legal profession. The functional failure of the bar councils has been acknowledged in several judgments of the Supreme Court and various committee reports. Several issues have been raised, including the falling standards of legal education (184th Law Commission Report), the low standards of legal professionals (V Sudeer v Bar Council of India 1999), a lack of discipline and ethical standards among advocates (R K Anand v Registrar, Delhi High Court 2009), the failure of a disciplinary mechanism and vandalism (Hikmat Ali Khan v Ishwar Prasad Arya and Ors, 1997; Mahipal Singh Rana v State of Uttar Pradesh, 2016), growing incidents of criminalisation, boycotts, and strikes (Ex-Captain Harish Uppal v Union of India 2003), and lawyers giving improper legal advice and promoting touting (P D Khandekar v Bar Council of Maharashtra, AIR 1984), seeking unnecessary adjournments (N G Dastane v Shrikant S Shivde, AIR 2001), and soliciting
work (Bar Council of Maharashtra v M V Dabholkar 1976), to name a few. All these factors have created feelings of distrust in the legal profession, compelling the Supreme Court to express dissatisfaction about the regulatory mechanism governing the legal profession and to urge the Law Commission to review and propose suitable amendments in consultation with all stakeholders. In pursuit of these changes, the 266th Report of the Law Commission of India, dealing with the Advocates Act, 1961, was recently published.

266th Law Commission Report: A Critical Analysis

In its 266th report, the Law Commission has made several recommendations to strengthen the regulatory framework and increase the accountability of legal professionals, among other things, based on the Report of the Advisory Committee of the BCI and the views of other stakeholders in the justice delivery system. Some major recommendations are defining “professional misconduct,” expanding the composition of the BCI and SBCs to make them more representative of the overall interests of the legal profession, revising the composition of the disciplinary committee to include a judicial member, extending the scope of pre-enrolment disqualification as well as post-enrolment removal of advocates’ names, increasing the quantum of fines and compensation payments in cases of professional misconduct, prohibiting boycotts and strikes, and extending the accountability of bar council office-bearers by constituting a Special Public Grievance Redressal Committee to prevent corruption and the abuse of power.

Prima facie these recommendations appear to be based on the needs of the day, but a critical examination clearly indicates that concerns about falling standards in the legal profession have not been effectively addressed. The recommendations are mostly inconclusive and often rely on the discretion of the BCI to be implemented, without prescribing any accountability measures in case of non-compliance.

(a) Changes in the regulatory structure: The primary aim of the commission was to review the regulatory system under the Advocates Act. The failure of the BCI to perform its core functions in regulating the members of the legal profession has been acknowledged, and several recommendations have been made to bring about necessary improvements. The suggestion to broaden the composition of the bar councils by including non-advocates has been criticised, as it could dilute the autonomy of the legal profession. It is important for the bar councils to realise that the scope of the legal profession cannot be restricted to the recognition of a singular class of advocates. Presently, there are a large number of law graduates who participate in different law-related activities; thus, if the bar councils are to retain their legitimacy and relevance, they must accommodate, recognise, and include the concerns of other members of the legal profession.

In this context, it is important to broaden the Bar Council’s constitution by extending membership to people in academia, the judiciary, public services, representatives of law firms, and the Ministry of Law and Justice to develop a progressive environment for the holistic growth of the legal profession. However, in order to protect the profession’s right to self-regulation, such members should not participate in disciplinary proceedings or in actions relating to the removal of names from state rolls. The report also recommends the creation of an Advocates’ Grievance Redressal Committee, headed by a district judge, to deal with the day-to-day grievances of advocates and ensure they perform their role effectively; however, this is contrary to the notions of autonomy that form the bedrock of the legal profession. Instead, bar councils and bar associations should establish internal grievance redressal mechanisms to deal with advocates’ complaints, including those about the behaviour of judges, so that most court-related issues can be easily resolved without resorting to strikes and boycotts. In order to maintain the balance between autonomy and accountability, a provision should be made wherein the BCI is required to submit an annual report to the central government, which should be presented to Parliament.

(b) Misconduct by advocates: The commission also addressed the growing incidence of hooliganism among advocates, which has weakened the public standing of legal professionals in India. Strikes, boycotts, and delays are frequently caused by advocates and adversely affect the functioning of courts by causing unnecessary loss of working days for an already overburdened judiciary. In spite of the Supreme Court’s strong directives in the Harish Uppal case, where it categorically held that advocates had no right to strike and that they would be personally liable to pay clients in case of any loss suffered due to it, such incidents continue unabated. The Law Commission Report, even after noting the same, fails to prohibit all forms of strikes and boycotts, and allows for day-long symbolic strikes. Even the recommendation for a new provision prohibiting advocates and bar associations from calling for boycotts or abstention from court work is half-done, since no adverse or penal consequences have been provided for in case of non-compliance by bar associations. On the other hand, the recommendation of removing the names of advocates from state rolls for abstaining from court work may be too harsh on honest and hardworking advocates who are forced to abide by the bar council diktat. Amendments need to be made to derecognise a bar association that calls for strikes and boycotts and to provide for disciplinary action against the office-bearers. Provisions for alternative practices—such as wearing black bands, publishing pamphlets, and media interviews to express dissent—should be included in the bar council rules.

Similarly, growing incidence of criminalisation and browbeating in the legal profession was an important concern for the Law Commission, but the recommendations are not exhaustive in nature. In the Mahipal Singh Rana case, the Supreme Court unequivocally held that disqualification under Section 24A would be equally applicable to an advocate post enrolment and would give rise to the automatic removal of names under Section 26A. This binding principle should have been incorporated into the statute, and on conviction, an advocate should be permanently debarred and removed from the state roll. In addition, disqualification under Rule 7A of Part VI of the BCI Rules for permanent debarment from enrolment as an advocate on being dismissed, retrenched, compulsorily retired, removed or otherwise relieved from government services or from the high courts or Supreme Court on charges of corruption or dishonesty unbecoming of an employee should be included within Section 24A.

This disqualification should also extend to employees working in private corporations and non-governmental organisations because dishonesty is a fallacy of character, which should be equally reprimanded in all forms and types of employment. In order to prevent criminalisation and ensure that the convicted person is not allowed to participate in important public functions, Section 24A should be further amended to ensure that a person who has been convicted of an offence involving moral turpitude is permanently disqualified from admission as an advocate; only if the conviction is for minor offences should the term of disqualification terminate two years after the person has been released.

In case of contemptuous behaviour by an advocate, it is important to recognise such actions as “misconduct” within the act. Bar councils must take strict action against the browbeating of judges and other contemptuous acts by removing the names of perpetrators from the state roll under Section 26A. The judiciary has often emphasised that advocates guilty of contempt of court should not be permitted to appear, act, or plead in any court unless they have purged themselves of contempt.

A controversial recommendation is the attempt to define “professional misconduct” in Section 35. The meaning, nature, and scope of the term has already been well illustrated through several leading judgments of the Supreme Court. In the Noratanmal Chouraria v M R Murli (2004) case it was categorically stated that “it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline.” Additionally, it has been held that the standard of proof in a disciplinary proceeding is higher than that required in a civil suit and is based on preponderance of evidence, wherein all allegations of misconduct should be proven to the hilt. It has often been observed by the courts that an action for professional misconduct will be upheld when an advocate has rendered himself unworthy to be member of the legal profession; thus, the proposed definition in the report may not stand up to judicial scrutiny. On the contrary, the commission should have clarified the meaning, scope, and importance of “other misconduct” in Section 35 as a mechanism to tackle lack of discipline and the unruly behaviour of advocates in and out of court premises. The implementation of the “other misconduct” clause is key for sustaining the nobility and dignity of the profession in the eyes of the common people.

(c) Disciplinary proceedings: Conducting disciplinary proceedings under the act are crucial for maintaining professional discipline. The report has suggested the reconstitution of the disciplinary committee by including a judicial officer, but the same may not be enough or in accordance with self-regulation norms. In the present circumstances, it is imperative to provide for alternative legal measures in case the disciplinary committee and bar council fail to initiate disciplinary actions in appropriate cases. There have been several instances where despite recommendations by the high courts and Supreme Court, SBCs and the BCI have failed to take any form of disciplinary action against errant advocates. The Supreme Court, in the Supreme Court Bar Association v Union of India (1998) and the Mahipal Singh Rana cases, held that in circumstances where the bar council fails to take action despite references made to it, the Supreme Court can exercise suo motu powers to punish the contemner for professional misconduct using the appellate powers provided in Section 38 of the Advocates Act, and the high courts can do the same under Article 226 of the Constitution—bar councils will be bound by court order. The ruling must be incorporated into the statute so as to inculcate accountability and discipline in bar councils. Merely recommending the imposition of a high penalty amount will not create the necessary deterrence unless there is certainty of legal consequences. The fear of high penalties may also prevent some lawyers from taking up certain cases, which would be detrimental to the interests of the common people.

(d) Code of professional conduct: A glaring omission in the report is the lack of discussion on improving the Rules on Professional Standards, which act as the canon for professional conduct. The existing code identifies a set of normative values but does not involve or discuss the various ethical and professional challenges that legal professionals face in day-to-day practice. The existing code defines the obligations of an advocate in a court-based litigation and does not consider professional obligations in the context of arbitration, mediation, negotiation, and transactional work. In the present framework, the Code of Conduct, drafted by BCI in 2011, should be added to the existing rules on professional standards.

(e) Client interest and deficiencies in service: The legal profession is described as a service-oriented profession, but the report is completely silent on client interests and deficiencies in service. Merely providing compensatory payment following professional misconduct will not help ordinary clients get adequate redressal. The existing set of duties, listed in the Rules on Professional Standards, is inadequate to deal with clients’ concerns. To create more client-centric accountability, deficiencies in service must be recognised as separate ground for legal action. The SBCs should constitute separate bodies, such as client fora and legal ombudsmen, to deal with the grievances of clients and protect their interests. In addition, the BCI should be more responsive in protecting litigants from fake lawyers and should maintain an online database of all enrolled advocates linked to Aadhaar information to prevent impersonation.

(f) Other issues: The report is silent on several other critical issues related to the legal profession:

(i) On the issue of improving the quality of legal professionals, the report merely reiterates the need to include a year of pre-enrolment compulsory training with a senior lawyer and clearing the bar exam. It fails to suggest infrastructural development in rural areas, such as the creation of computer labs and libraries and providing access to electronic databases, which are essential for the growth of young lawyers.

(ii) Formulating a Continuing Legal Education (CLE) programme is a necessity in our globalised economy. The report should prescribe mandatory hours of CLE in new areas of law, professional skills, and ethics, which would aid the professional development of young lawyers and train them to face challenges.

(iii) The commission has not addressed the critical issue of establishing welfare schemes for old, indigent, and disabled lawyers. The recommendation of the BCI —that litigants should mandatorily pay for welfare stamps towards the lawyer’s welfare fund—is not only coercive and exploitative, but is also contrary to the goals of justice for all, by making litigation expensive. It is necessary for the commission to make constructive suggestions for the proper implementation of welfare schemes for advocates.

(iv) The commission’s lack of attention to legal aid is lamentable. The report has not made any suggestions on how to encourage members of the bar to take up more pro bono cases for indigent and marginalised litigants. Merely providing legal aid services through the Legal
Services Authority is not sufficient to improve the quality of legal representation for the poor and indigent. Rendering legal aid needs to be made mandatory by statutorily compelling all advocates to devote a part of their working hours towards pro bono activities. In this context, provisions related to legal aid in the Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Bill, 2010, may be incorporated into the Advocates Act.

(v) Recent controversial issues relating to the entry of foreign lawyers and inclusion of law firms within the provisions of the Advocates Act have not been examined by the commission. In an era of globalised legal practice, these issues are matters of crucial significance and demand conscious deliberation.

Conclusions

The 266th report is significant in that it brings forth before the general public the various shortcomings and limitations of the legal profession. Advocates, as a class, must realise that their conduct affects not only the functioning of the judicial system, but also the people’s faith in the adjudication process. In the name of independence and self-regulation, a large section of the legal profession has rejected the recommendations of the Law Commission and have attempted to strangulate the legal system by indulging in boycotts and country-wide strikes. The controversy has revealed that the BCI’s powers in such situations is limited and it cannot exercise any form of control over its members. The turnaround and subsequent withdrawal of its own recommendation by the chairperson of the BCI has lowered public perception of the legal profession and exposes the need for greater public debate on the issue of accountability. The present autonomy, monopoly, and power of self-regulation enjoyed by those in the legal profession are privileges granted by the Parliament; unless members agree to introspect and suitably amend themselves, the denial of these privileges may become a harsh reality.

References

Bar Council of India (2011): “Draft Code of Conduct,” http://www.barcouncilofindia.org/bci-seeking-viewssuggestions-on-the-draft-code-of-ethics/.

— (2017): “Suggestion Made by the Advisory Committee of the Bar Council with regard to the Advocates Act, 1961,” as forwarded to the Law Commission of India, included as Annexure 1 in the 266th Report of the Law Commission of India, Government of India, New Delhi.

— (2017): “Suggested Amendments to the Advocates Act, 1961 Proposed by Bar Council of
India (Revised and Final) Adopted Vide Item No 62/2017,” http://www.barcouncilofindia.org/suggested-amendments-to-the-advocate-act-1961-proposed-by-bar-council-of-india-revised-and-final-adopted-vide-item-no-622017/.

— (2017): Press release on the protest measures against the proposed Advocates (Amendments) Bill-2017 suggested by the Law Commission of India, http://www.barcouncilofindia.org/wp-content/uploads/2017/04/Press-Reales....

Law Commission of India (2002): “The Legal Education & Professional Training and Proposals for Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956,” Report No 184, Government of India, New Delhi.

— (2017): “Regulation of Legal Profession,” Report No 266, the Advocates Act, 1961, Government of India, New Delhi.

CASEs CITED

Bar Council of Maharashtra v MV Dabholkar (1976): 2 SCC 291.

Harish Uppal v Union of India (2003): 2 SCC 45.

Hikmat Ali Khan v Ishwar Prasad Arya and Ors, AIR 1997 SC 864.

Mahipal Singh Rana v State of Uttar Pradesh (2016): 8 SCC 335; AIR 2016, SC, p 3302.

N G Dastane v Shrikant S Shivde (2001): 6 SCC 135.

Noratanmal Chouraria v M R Murli (2004): 5 SCC 689.

R K Anand v Delhi High Court (2009): 8 SCC 106.

P D Khandekar v Bar Council of Maharashtra, AIR 1984 SC 110.

Supreme Court Bar Association v. Union of India (1998): 4 SCC 409.

V Sudeer v Bar Council of India (1999): 3 SCC 176.

Updated On : 13th Jan, 2018

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