Emerging New Avenues and Trend in Noble Profession of Law
1. Law education
Law education is the prerogative, privilege and obligation of the Bar Council of India. The duty has been casted on the Bar Council with an object that it may produce lawyers of the expectations, enshrined in the Advocates’ Act. Unlike the Institute of Chartered Accountants, the Bar Council of India is not teaching / coaching the Law Students, but has entrusted the herculian task to the Universities in India. Law Colleges are approved and it is for the Universities to conduct law examination, to allot degree and to make the law students fit for joining the profession. However, Law education continues to suffer from uncontrolled growth of law colleges, poor quality of teaching, poor organisation and management, lack of continuing legal education, old and traditional methods, stereotype question papers lacking imagination, faulty examination, lack of infrastructure, lack of adequate library facilities, poor attendance in class rooms, mass copying in examination, absence of practical training, lack of finance, lack of uniform marking pattern etc. Time has come to set right goals, revamp and modernise legal education, prepare students to adopt modern technologies and intricacies arising out of cyber laws, forensic sciences, medical sciences, international trade, patents-registrations intellectual property rights etc.
It is heartening to find that lately the Bar Council is alive of the malady and is making serious and strenuous efforts to improve imparting of quality education. It has tightened the Universities. The Directorate of Legal Education has been established. It is good sign. State Bar Councils be entrusted duties to play vital role in implementation and regulation. I humbly suggest that we should adopt common syllabus for compulsory subjects all over the country with optional subjects, which may be in accord with the requirement of each State. Secondly, there should be common examination on a scheduled date with question paper to be compiled by the Committee of Senior Advocates and manner of marking be rigid to make it of uniform pattern. I am of the firm opinion that the colleges be directed to conduct mock trials, Inter University and National Moot Court Competitions. System of internship and learning with the Senior Advocates be made compulsory.
Legal education is an investment which if wisely made will produce most beneficial results for the nation and accelerate the pace of development. Of late, the role of a lawyer is more than a skilled legal mechanic; he acts as a harmoniser and a reconciler. The legal education granted at the law school should be aligned to the conventional and contemporary needs of the legal profession. The need for a continuing and well-organised legal education is absolutely essential reckoning the new trends in the world order, to meet every growing challenge. The legal education should be well equipped to cater to the complexities of the different situations and new trends.
2. Law Colleges
Since 1985 concept of Five Year Law Degree has developed and it provides unique opportunity to join after higher secondary (12th Standard). It attracts such students, who want to excel in law profession and have no mind to divert towards other profession. Such schools are bringing out students with indepth study and practical knowledge. Semester system has been adopted. Weekly tests are taken and marks allotted. Education for more than 7 hours is imparted. Student has to learn and read for 12 hours and for six days a week. Inter Semester Moot Courts are conducted. Students are required to appear and argue as well as attend conferences, seminars, workshops, lectures and addresses from legal illuminaries, scholars, academicians, senior Advocates, Jurists and experts. Administration is strict as to attendance. However, large number of Five Year students prefer to be in Corporates and do not opt for litigation field for want of infrastructure, congenial atmosphere, delays, long years waiting to earn as high packages.
Large number which join in the litigation field is the students passing three year degree course. It is noticed and is a notorious fact that students of these colleges are not very much serious towards reading the text, attending the class rooms, attentively hearing the faculties, doing home work, attending Moot Court Competitions, mock trials, visiting courts, watching Advocates arguing in order to learn Court craft conventions and traditions etc. Immediately after qualifying get enrolled and without restriction and toiling with grounding in subordinate Courts, appear and argue before the High Court. It disrupts the congenial functioning and some times becomes an obstruction in dispensation of justice. Some of them bring bad name to the noble profession and the grace, glamour and respect for others is affected. It is for the Bar Council to take appropriate remedial measures. I most humbly and respectfully appeal the Senior Advocates, Bar Councillors and other advocates to associate with government law colleges and guide them to impart value based education.
3. The three wings of the Constitution
To legislate is the duty of the Parliament and State Legislatures. To govern is the duty of the Executive. It is for the judiciary to keep a watch, vigil and see that the freedom enshrined in the Constitution reach to every citizen and is not jeopardised or tinkered with or obstructed by the executive or any person in authority or otherwise. Function of the judiciary is to vouch safe that any law enacted by the Parliament or State legislature is intra-vires the Constitution and not ultra-vires, making the mockery of law and denying the freedom of life and liberty, with equality and dignity. The third wing has been created in order to secure justice and in order to let reach every citizen the freedom, the peace, the prosperity spiritual and economic, so as to achieve the objectives contained in the preamble of the Constitution. All citizens of this largest democracy of the world are entitled to access to justice and seek justice expeditiously and cheapest.
4. P. I. L.
Public interest litigation matters have been in abundance for public good and to preserve the culture, tradition, peace and to promote prosperity. Even complaint contained in a post card or a news in newspaper is considered as a writ and attracts immediate attention of the Hon’ble Judges. A person acting bona fide and having sufficient interest in the proceeding of Public Interest Litigation alone has a locus standi and can approach the Hon’ble Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. It is heartening to find legal profession is taking up causes of public interest with sense of duty, devotion and without fee. The Bar Council should inspire, encourage and motivate its members to serve for common good.
5. Distributive Justice
The concept ‘distributive justice’ connotes the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society. It comprehends more than lessening of inequalities by differential taxation, giving debt relief or regulation of contractual relations; it also means the restoration of properties to those who have been deprived of them by unconscionable bargains; it may also take the form of forced redistribution of wealth as a means of achieving a fair division of material resources among the members of society. The ideal of economic justice is to make equality of status meaningful and life worth living at its best, removing inequality of opportunity and of status–social, economic and political. Social justice and equality are complementary. Rule of law is a potent instrument of social justice and we should extend a helping hand to be needy and distressed.
6. Jungle of laws
Innumerable laws are enacted and amended without understanding its ill-effects with drafting errors. We should see that unnecessary laws and delays are avoided. “Justice delayed is – Justice denied”. “Judgment hurried is –Justice buried”. Non-enforcement or delayed enforcement would be disastrous to democracy. With globalisation, liberalisation, increase of crime, jungle of laws, and money power, people have prospered and are flourishing. Innumerable laws are enacted and amendments are made in haste, without discussions and deliberations, at the whims of the Parliamentarians. Old, obsolete laws still remain though identified as useless. People are flooded with laws and every minute one is violating one or the other unknowingly.
New laws are enacted; existing laws are amended; plethora of decisions of Supreme Court and High Courts of binding nature and of tribunals are pouring in, every day. It is difficult to keep a track in spite of net and other facilities. It is highly desirable for the State Bar Councils to organise conferences, seminars, workshops earmarking “CPE” hours and making mandatory to attend for specified hours and make it a condition for renewal of ‘Sanad’. I hope it would be discussed, deliberated and appropriate decision taken.
7. Fundamental Duties – Fundamental rights
Rights and Fundamental duties incorporated in our Constitution, are two sides of the same coin and must co-exist, else would go out of democratic set up. The citizen, it is expected, should be his own monitor while exercising and enforcing his fundamental rights, remembering that he owes the duties specified in Article 51A to the State and that if he does not care for the duties he should not deserve the rights. It is a fallacy to think that under our Constitution there are only rights and no duties.
Mahatma Gandhi said : “The true source of rights is duty. If we all discharge our duties, rights will not be far to seek, if leaving duties unperformed we run after rights, they will escape us like will o’ the wisp, the more we pursue them, the farther they will fly”.
The mandate of our Constitution is to build a welfare society and that object may be achieved to the extent the directive principles are implemented by legislation. The Courts may also look at the duties while interpreting equivocal statutes which admit of two construction, and also uphold the constitutionality of a statute the object of which is in consonance with a provision in Article 51A. It is his personal obligation and price for enjoying the rights. One who does not care for duties, is not entitled for the rights provided in the Constitution. Article 51-A can ordinarily be called as the duty of the citizens, but in fact it is the right of the citizens as it creates the right in favour of the citizen to move to the court to see that the State performs its duties faithfully and the obligatory and primary duties are performed in accordance with the law of the land. It is for we the lawyers, to spread awareness amongst citizens to perform their duties and prove as good citizens.
8. New avenues
With globalisation, liberalisation, rationalisation, influx of multinationals, growth of industrial houses, boom in realty market, crime and corruption cases, patent rights, cyber crimes, amalgamation and mergers, arbitration, intellectual property rights, proliferation of black money uninterruptedly and flowing of outside India, involvement of substantial stakes and tendency to break the laws, unprecedented expansion is apparent in litigation field at all levels. Number of laws in civil, criminal, revenue, corporate, taxation, economic, constitutional, banking, insurance and service sector have been enacted, amended, altered, modified and strengthened. It is desirable that all services are made available to a litigant under one roof, hence, it is advisable to form law firm under the Partnership Act, 1932 or Limited Liability Partnership Act, 2008 where there is no restriction as to the number of partners, with benefit of limited liability. It is easy to form and easy to dissolve/wind up without much problems. Larger the number, the better pooling of funds and human resources. It is an era of Big-Big-Big. One should avail of facilities of mass communication and information technology including inter-net, C.D. Rom and other facilities for information and communications and updating of knowledge. However
‘Man has made machines, Machines cannot make Man’. Keep your human computer above all.
Section 47 of the Advocates Act provides for reciprocity of foreign lawyers. If an Indian lawyer is forbidden to practice in U.S.A. and he is discriminated in U.S.A. – U.S. Lawyer cannot practice in India and in Indian Courts. Much debate is going on in India, as to whether to permit the foreign lawyer firms to establish and practice in India ? Hon’ble Mr. Justice Chandra Sekhar Dharmadhikari, former Judge of Bombay High Court, a Gandhian, has warned against invasion and influx of foreign lawyers in India. He has suggested to think “globally” but to act “locally”. He criticised the attitudes of foreign lawyers and stated that one should distinguish between “Need” and “Greed” and fee should commensurate the labour and not the outcome. In my view the Bar Council of India should take requisite precautions and enter in MOUs on reciprocity basis as the Institute of Chartered Accountants have entered into.
9. New trends
Since litigants have a fundamental right to speedy justice. It is essential that cases must proceed when they appear on board and should not ordinarily got adjourned, unless there are cogent reasons to seek an adjournment. Of late, it is being noticed that some members of the profession have been adopting perceptibly casual approach to the practice of the profession, as is evident from their absence when the matters are called out, the filing of incomplete and inaccurate pleadings – many a times even illegible and without personal check and verification; the non-payment of Court fees and process fees; the failure to remove office objections and to take speedy steps to serve the parties. It is disservice to the litigants and create embarrassing situation in the Court leading to avoidable unpleasantness and delay in the disposal of matters. This augurs ill for the health of our judicial system.
Both the Bench and the Bar are the two inextricable wings of the judicial forum and, therefore, the mutual respect is the sine qua non for the efficient functioning of the solemn work carried on in Courts of law. But that does not mean that any advocate or a group of them can boycott the Courts or any particular Court and ask the Court to desist from discharging judicial functions without any substantial collective grievance. Mahatma Gandhi stated: “Civil disobedience becomes a sacred duty when State becomes lawless and corrupt”. But after independence only solution is to have a direct dialogue with open mind and patience with the Bar on equal footing, after shedding ego, both by the Bar and the Bench.
Both should be receptive to hear, understand and appreciate each other’s view point. Bar and the Bench being two sides of the same coin must have mutual respect brotherhood, fraternity to co-exist. Should live like a joint Hindu Family for larger benefit of all with no malice or bias or mistrust for anyone.
To solicit client, to engage touts and to advertise for attracting clients are prohibited. However, it is noticed that wide publicity is given of the achievements and offices held in order to gain popularity. It is noticed that on letter-pad or/and visiting card holding of post is got printed and used for circulating to prospective clients and even in arguments, the presiding officer is made conscious of it. It makes an impression on the mind of litigants and inheres suspicion. It should be prohibited.
Before emergency, a Senior Advocate used to charge a fee of Rs. 1,680/- per day, to avoid direct dialogue with a litigant and to deal only with the Advocate-on-record/other advocate; who used to collect the fee and transmit to the Senior Advocate against receipt. Cash collection used to be avoided. However, lately it is a talk of the town, that many Senior Advocates charge above 1–10 lakhs per day;
Rs. 5 lakhs and above for admission, which normally takes 5 to 10 minutes and on miscellaneous day appearances are more than 5 to 7 in different courts. The Income-tax Department carries a suspicion that many understate their income and few have been caught and levied penalty. Unprecedented rise in the fee scale, casual approach and making one available only for minimal percentage of the multinationals and affluent litigants, is bringing bad name to the noble profession. It is high time for the Bar Council of India, the Supreme Court Bar Association and State Bar Associations to regulate fee structure and administer strictly.
10. Code of Compulsory Costs
Over years it is apparent that a fairly large number of litigants tell a lie, do not believe in truth, mutilate facts and drag litigation from Court to Court, to higher Court and the highest. Appellant/Respondents move frivolous infructuous applications/petitions to prolong the proceedings, to harass the other side and litigation goes on from generation to generation. The Courts, High Courts and Supreme Court are flooded with such malacious litigations, whereby dispensation of justice is not only delayed but is denied. To quote an eminent jurist Nani A. Palkhivala : ‘This is why we are called counsel and not merely advocates. In fact, it is the duty of all professional men not only to tell the client what the law is, but to advise him correctly as to what he has to do in a given set of circumstances’. But it is not followed.
Recent case is of Sahara Group where the Hon’ble Supreme Court made an order on 4-3-2014 after sufficient opportunities, for detention of all the contemners except a woman director. The 4 directors remained in judicial custody for long. No review or curative petition was filed and the order dated 4-3-2014 remain unchallenged/attained finality. Strange enough a criminal writ petition without mention of any section or Article(s) of the Constitution was filed to declare the said order as void, nullity and non-est in the eyes of law and directions for release from the illegal custody. The petition was signed and approved by 5 (five) eminent Senior Advocates of national repute. The original appeals and the applications were listed for hearing on 81 dates from 28-11-2011 to 21-4-2014. A lot of these hearings consumed the Court’s full working day. Hearing of the main case, consumed one full part, of the entire summer vacation (of the Supreme Court) of the year 2012. For the various orders passed by the Hon’ble judges, including the order dated 31-8-2012 (running into 269 printed pages) and the second order (running into 205 printed pages), substantial Judge hours were consumed. In my rough estimate, an expenditure of more than 250 crores was incurred by Sahara Group, out of hard earned money of depositors/shareholders – a national waste.
Hon’ble Mr. Justice Jagdish Singh Khehar observed : “The Indian judicial system is grossly afflicted, with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-considered claims. This abuse of the judicial process is not limited to any particular class of litigants. The State and its agencies litigate endlessly up to the highest Court, just because of the lack of responsibility, to take decisions. So much so, that we have started to entertain the impression, that all administrative and executive decision making, are being left to Courts, just for that reason. In private litigation as well, the concerned litigant would continue to approach the higher Court, despite the fact that he had lost in every Court hitherto before. The effort is not to discourage a litigant, in whose perception, his cause is fair and legitimate. The effort is only to introduce consequences, if the litigant’s perception was incorrect, and if his cause is found to be, not fair and legitimate, he must pay for the same. In the present setting of the adjudicatory process, a litigant, no matter how irresponsible he is, suffers no consequences. Every litigant, therefore likes to take a chance, even when counsel’s advise is otherwise”.
Presently also provisions exist for awarding cost/exemplary costs to the winner but the Courts only in extraordinary cases award paltry amount by way of costs, which is insufficient and not deterrent. Apart from frivolous litigants, false evidence is tendered, on oath, without any fear of ‘God’. Perversity has increased. False declarations are made. On detection no serious action is taken and wrong doer is let go, encouraging others to follow the wrong path. Provisions exist to convict the accused but the courts shirk their responsibility. Number of orders, directions, instructions remain uncomplied with, unless and until contempt proceedings commence. Contemnor is let to go on one or the other reason or retires on superannuation. Majesty of Law is not upheld. It would be in the interest of all concerned to make a code of compulsory costs.
11. Our needs: We need
(i) to put utmost emphasis on the creation of a transparent and non-discriminatory judicial functioning to eliminate scope for corruption and delay in dispensation of justice; (ii) To learn lessons of duty, discipline, trust, mutual respect, time management, efficiency and punctuality; (ii) not to indulge in malpractices and to maintain ‘ETHICS’; (iii) To strengthen investigation and speedy fair trial of cases with exemplary deterrent punishment, without fear or favour and with speed; (iv) Increase of brotherhood, fraternity, co-operation, unity and nationality; (v) Fear, none-except one – the God almighty/own conscience; (vi) To serve with education, excellence and ethics, treating it a service to God and not as a commerce or business.
We must translate Gandhian ideals into real life. Let us have an “Inner Revolution” and transform ourselves, feeling ‘Social Professional Responsibility’. Let each one of us, evolve ways and means whereby to change the work culture and mindset for public good and in public interest. What is required is :
Unity of thoughts, unity of understanding and unity of action to achieve the goal as envisaged in the Constitution. Future is bright. Maintain its dignity, honour and reputation. Serve the Humanity. JOIN IN SACRED CAUSE. BE CLEAN HUMAN BEING – “INSAAN”.
Life is a success. Not by prosperity, not by pleasure of the flesh, but by a clean soul, when death itself would be deliverance. Soul is immortal. Keep it pure. Let us pledge to act in furtherance of securing our citizens justice with liberty, fraternity, brotherhood equality, corruption free and to eliminate extortion and exploitation. We should have self introspection and correct oneself. We should do our duty and Build the Nation. Then alone we can claim to be a true Indian. Bring back the past and lost glory.
N. M. Ranka