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