Lawyer, Heal Thyself
Lawyer, Heal Thyself
Abstract and Keywords
Lawyers must not be the call girls of money power. Lawyers, the officers of the court, instead of helping the court arrive at justice, derail justice at the instance of their clients. No wonder, they have been reviled from time immemorial for their unethical practices. Gandhiji learnt to regard law not as an intellectual legerdemain to make black appear white and white black, but as ‘codified ethics’. The profession of law became to him the means to enthrone justice, not to ‘entangle justice’ in the net of law.
Keywords: Evolution of lawyers, Expensive justice, Justice reserved for the highest bidder, Role of Bar, Indian bar, Legal language, legalese, Unethical practice, Law officers of government, Criminal acts of lawyers, Bar Council, Right of defence, Rape in the courts, Defending justice, not clients, Right to strike, Fee structure, Filibustering
‘The first thing that we do, let’s kill all the lawyers’.1 Though it was intended as a comic relief and not something to be taken seriously, it, nonetheless, reflects on the image lawyers have. They have been reviled from the time immemorial. Socrates, in the Theaetetus, derided lawyers in these words:
He is a servant, and is disputing about a fellow servant before his master, who is seated and has the cause in his hands…. The consequence has been, that he has become keen and shrewd; he has learned how to flatter his master in word and indulge him in deed; but his soul is small and unrighteous. His slavish condition has deprived him of growth and uprightness and independence … he has been driven into crooked ways; from the first he has practised deception and retaliation, and has become stunted and warped … and is now, as he thinks, a master in wisdom.
Jesus also spoke about lawyers’ despicable conduct. In the New Testament, St. Luke says: ‘Woe unto you also, ye lawyers! For you lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers’. This quote is often cited to denounce lawyers but Overton challenged that Jesus did not mean lawyers. The word translated was Greek nomikos, which does mean lawyer, but is the Biblical equivalent to ‘scribe’ or ‘Pharisee’. Moreover, Radin emphatically suggests that lawyers had a good reputation in early Christian times. One of Paul’s followers, Zenas, was a lawyer who became a saint in the Greek Orthodox Church, and other lawyers (p.309) have attained sainthood. Writing about the historic incident of the capture of London in late fourteenth century after the social rising of 1381, G.M. Trevelyan has hit out at lawyers, ‘unpopular characters were murdered, including the mild Archbishop Sudbury, whose head was placed over London Bridge. Lawyers were specially obnoxious’.2
Anyway, lawyers are generally perceived as parasites on society, which is summed up in William Makepeace Thackeray’s comment on the Court of Chancery, ‘a sty for fattening lawyers in on the bones of honest men’.3 Disraeli denounced lawyers in these words: ‘The chief characteristics of the legal mind are expounding the obvious, illustrating the self-evident, and expatiating on the commonplace’.4
Evolution of Lawyers
In ancient Greece there were great orators called Sophists who were professional teachers and educators. The advent of democracy made it possible for the common man to attain the highest position if he could win over the people by eloquent oratory. Thus, people wanted to hone their skills of oratory and demagoguery and hence the demand for such an education. According to W.T. Stace:
It was this demand which the Sophists undertook to satisfy. They wandered about Greece from place to place, they gave lectures, they took pupils, they entered into disputations. For these services they extracted fees. They were the first in Greece to take fees for the teaching of wisdom. There was nothing disgraceful in this in itself, but it had never been customary. The wise men of Greece had never accepted any payment for their wisdom.5
In Athens during the second half of the fifth century BCE and first half of the fourth century BCE, there were orators, called synegoros, who occasionally spoke on behalf of litigants or defendants. After the principal uttered a few words, a syndic (friend) took over the case. The line between the synegoros and the syndic slowly got blurred. The orator did not merely adduce facts (p.310) and arguments in support of the brief but also vouched for the probity and rectitude of the litigant and justness of his cause.
Modern advocate is an evolution of the gladiator of yesteryears. William the Conqueror, after coming to England, introduced a system of trial called ‘Ordeal by battle’ in which the plaintiff and the defendant in a civil suit or the prosecutor and the accused in a criminal case were required to combat each other physically. It was thought that in such wrestling, the party in the right would win with the blessings of God. The loser was pronounced guilty and the winner was declared innocent and to have justice on his side. Only women and the Church were allowed to hire champions who fought for them. Thus, the champion was the precursor of the present day advocate. In due course, the freedom of employing an ‘advocate’ to appear for the litigant was extended from priests and women to other classes of litigants. William Graham, a gladiator, was the most famous advocate in the thirteenth century. Though this form of trial became antiquated, under the law it remained open to litigants in England until the nineteenth century. The practice was abolished in 1919 after a man convicted of murder in 1918 moved the appellate court in appeal and his counsel pleaded that his client be allowed to challenge the prosecutor in a physical combat. Chief Justice Lord Ellenborough, found that the right did exist. It was then that this method of trial was abolished.6 The ‘trial by ordeal’ was quite brief compared to today’s protracted trials which go on interminably.
Legal Profession in India
The modern legal system of India is a boon or bane gifted by the British. The contemporary Indian legal profession is the superimposition of the British legal system on the traditional institutions of caste, family, and village panchayat (an assembly of villagers). Though we find the significant role of judges in the literature of Hindu and Mughal India, there is no reference to lawyers. In ancient India, justice was dispensed in open assemblies known as sabha or samiti. Kautilya’s Arthashastra gives a quaint description of ‘King’s court of justice’. There were different courts—court for the sangraha (for a group of ten villages), court for the dronamukha (for a group of hundred villages), court for the sthaniya (for a group of eight hundred villages), and at the top of all was the court presided over by the king’s judges.
During the Mughal period, there did exist a multi-tiered judicial and revenue system; they did not tinker with the autonomy of the local traditional (p.311) judicial system. Lawyers as a class of legal experts, advocating the cause of litigants perhaps did not exist. Hindu pundits, Muslim muftis, and Portuguese lawyers served under the earlier regimes, but they did not have any say in the system of law and legal practice. The first British court was set up in 1672 in Bombay by Governor General Aungier after King Charles II, who was presented the island of Bombay by the king of Portugal at the time of his marriage with Infanta Catherine of Braganza in June 1661, transferred it to the East India Company by a royal charter dated 27 March 1669. George Wilcox was appointed attorney-general.
However, for about a century, the British East India Company was in a dilemma whether to introduce a legal profession and did not send out either a trained judge or an attorney or a law clerk. It prophetically apprehended that the members of the legal profession might lead the freedom movement against the British regime. In fact, lawyers were the leading lights during the freedom movement. Mayor’s Courts were set up in the early eighteenth century in the presidency towns of Bombay, Calcutta, and Madras when King George I, on 24 September 1726, by a charter, granted courts of records to be established. Ironically, mayors or officers who presided over the court, utterly lacked legal knowledge and, so, were not in a position to question the submissions of the attorneys who practiced before them. The deficiency of the system was eventually recognized and it led to the establishment of a Supreme Court at Fort William in Calcutta (now Kolkata) through a Charter issued on 26 March 1774. However, only the English and Irish barristers and members of the Faculty of five Advocates in Scotland were entitled to practice as per Clause 11 of the Charter. The attorneys mentioned in the Charter were Irish attorneys and solicitors. Thus, the Supreme Court bar was shut for Indians as it was an exclusive preserve for members of the British legal profession.
Two years earlier, in 1772, civil and criminal courts were set up in all district headquarters with a sudder adalat (provincial court) at the top. Thus, two discrepant systems co-existed at the mofussil (rural area) and the city levels and there was hardly any interaction between the practitioners of mofussil courts and the barristers or solicitors of the courts in the presidency cities who were British. For the first two decades, in the sudder courts, it was free for all with no limitations on those who could draft pleadings or the fees they could charge. Bengal Regulation VII of 1793 introduced some order as the sudder diwani adalat (provincial civil court) was empowered to appoint vakils (pleaders) and regulate their conduct. Now vakils were required to be trained at Hindu and Muslim religious schools at Banaras and Calcutta. Mukhtars were attorneys who could appear in the criminal court in the mofussil. (p.312) It may be mentioned that former CJI, late Mehar Chand Mahajan began his career as a mukhtar.
In 1846, the segregation between the two systems was slightly bridged when barristers were allowed to practice in the sudder courts. However, a unified judicial system was introduced after the British government assumed the reins of the government, superseding the British East India Company in 1858. High courts were established in Calcutta, Bombay, and Madras in 1862, leading to a uniform system in the whole country. It also marked the beginning of the Indianization of the court system. Now, the vakils practicing before the sudder court could also appear before the high court. However, a distinction between barrister (called advocate then onwards) and solicitor (attorney) was maintained for those high court cases that would have been heard in the erstwhile Supreme Court, but not for appellate matters. Vakils became eligible for promotion as advocate. The pleaders, mukhtars, and Revenue Agents Act, 1865 and Legal practitioners Act, 1879 defined the different classes of legal practitioners more articulately as to how advocates, attorneys and vakils were different in the high court and pleaders, mukhtars, and revenue agents in the lower court. To remove any doubts about the eligibility of woman to be enrolled as an advocate, the Legal Practitioners (Women) Act, 1923, was enacted to provide that notwithstanding anything contained in previous legislations or other provisions in this regard, ‘no woman shall, by reason only of her sex, be disqualified from being admitted or enrolled as a legal practitioner or from practicing such; and any such rule or order which is repugnant to the provisions of this Act shall, to the extent of repugnancy be void’.7
When the Federal Court was set up on 1 October 1937 in Delhi, every advocate could not appear before it. It was mandatory to practice for five years in the high court before one could appear before it, and three years’ practice in the district court was essential for getting enrolled at the high court. The same applied to the Supreme Court after it replaced the Federal Court in January 1950. Since Delhi did not have any tradition of legal learning, leaders of provincial bars came over to appear in important cases and went back; they did not shift to Delhi as they had roaring practice back home. The Advocate General of India (now called attorney general, as every state has an advocate general), B.L. Mitter, appointed in 1937, was from the Calcutta High Court, who was succeeded by S.N. Bose from the same High Court. Then came N.P. Engineer from Bombay (now Mumbai). Delhi did not have its high court which came under the jurisdicature of the Lahore (p.313) High Court. So, only district court practitioners were available in Delhi, making the Supreme Court bar very poor. The Advocates Act, 1961 introduced a unified bar obliterating difference between different classes of advocates, and any advocate could practice in any court including the Supreme Court from day one.
The Act was legislated as the bar was not satisfied with the Bar Councils Act, 1926, which did not did not set up a unified Indian bar. The 1926 Act was itself a result of seething resentment in the legal fraternity over the distinction that existed between barristers and vakils, and the special privileges enjoyed by the British barristers and solicitors. Recognizing the dissatisfaction, the Government of India constituted the Indian Bar Committee in November 1923 called the Chamber Committee to examine the possibility of constituting Indian bar, whether on all India or provincial basis, and the extent to which it might be possible to remove the distinction enforced by statute of practice between barristers and vakils. The Act introduced a major change by making a separate provision for advocates, while the Legal Practitioners Act of 1879 continued to be applicable to other legal practitioners. The Act failed to perk up the legal fraternity as it did not cover pleaders, mukhtars, and revenue agents practising in the mofussil courts and revenue offices. Several non-official members’ bills were introduced to amend the law pertaining to the legal profession but had lapsed. After the enforcement of the Constitution on 26 January 1950 and the establishment of the Supreme Court of India, the Union Government set up the All India Bar Committee under the chairmanship of Justice S.R. Das of the Supreme Court. It recommended the creation of a unified all India bar as well as the establishment, composition, and functions of the State and All India Bar Councils. Subsequently, the Law Commission of India, headed by the then Attorney-General M.C. Setalvad, supported the recommendations of the All India Bar Committee, in 1955, in its 14th report.
Pursuant to it, the Legal Practitioners Bill, 1959, was introduced in Lok Sabha on 19 November 1959. It was changed into Advocates Act when the bill was to be passed. The bill, having been passed by both Houses of Parliament, received president’s assent on 18 May 1961 and was enforced. However, section 30 of the Act giving freedom to an advocate to practice throughout the territories to which this Act extends came into force only in 2011. Earlier, even the Supreme Court was moved at least twice for the issuance of the writ of mandamus to the Union Government to enforce section 30, but the Court refused to entertain those petitions. There is an opinion that Ashok K. Sen, then Union Law minister, got this act made with an eye on the vote-bank, as lawyers formed a big class in the country.
Lawyers are known to make the client pay through their nose and have been identified with the affluent. Their obsession with money is revealed in a story associated with eminent American lawyer Rufus Choate (1 October 1799–13 July 1859.) He had instructed his clerks never to accept a new client without a minimum retainer of $100. Please note, it was in the first half of the nineteenth century. Once it so happened that his clerk informed him that a new client had left only $75 as the retainer. Choate reprimanded his clerk that his actions were ‘very unprofessional and against the rules of the office’. The clerk replied, ‘but I took all the man had’. Then Choate said, ‘[T]hat entirely alters the case—to take all a man has is quite professional.’8 In the present era, American lawyers hit headlines and bring ignominy to the profession for the exorbitant fees of tort cases where they generally get a third of a tort settlement, which amounts to several millions of dollars in many cases. Besides, some lawyers defraud their clients, take money from their trust accounts, or are involved in laundering illegal drug money.9 In India also, lawyers have been found to be involved in money laundering. The Enforcement Directorate attached properties worth Rs 45 crore belonging to Delhi-based advocate Rohit Tandon in a money laundering case.10 He allegedly deposited demonetized currency notes of Rs 1,000 and 500 in various accounts of shell companies and issued demand drafts in the names of beneficiaries which were subsequently cancelled (currency notes of Rs 1,000 and 500 were cancelled on 8 November 2016). Some lawyers have been notorious for getting the title of the land and properties of their clients transferred in their names.
The bench and the bar are the two pillars of the judiciary. In fact, the bar is the provenance of the bench. So, improvement in the bench is inconceivable without improving the bar. It is also a fact that judges cannot be dissolute unless lawyers tend to be so, as in most cases, it is the lawyers who act as the conduit for judges. A corrupt bar cannot perform its adjudicatory role of adjudging the bench either. There are also instances when advocates accompany judges who go on LTC (Leave Travel Concession) with their families and bear their expenditure, giving it all trappings of a picaresque story. (p.315) The judiciary as the justice delivery institution is crumbling under the load of corruption and procedural rigmarole and it appears that whole institution exists for judges, lawyers, and the few affluent and influential litigants who can hijack the judicial process for their vested interests, and justice is lost in the labyrinth of legalese, legal legerdemain, and la-di-da style. The situation is not much different in the US as described by Albert P. Blaustein and co-authors, ‘The powerful position of the legal profession with respect to membership in American legislative bodies, Jones observes, is a striking demonstration of De Tocqueville’s thesis that “the government of democracy is favorable to the political powers of lawyers”.’11
In July 1992, Sir Anthony Mason, chief justice of Australia, defined the role of the bar while addressing the English, Scottish, and Australian Bar like this:
Unless the bar dedicates itself to the ideal of the public service, it forfeits its claim to treatment as profession in true sense of the term. Dedication to public service demands not only attainment of a high standard of professional skill but also faithful performance of duty to client and court and willingness to make professional service available to public … if the bar is to enjoy public trust and confidence, it must re-assert its dedication to its traditional ideals in a tangible way…. At a time when the cost of justice is a burning issue and the level of costs impedes access to justice, practices which are anti-competitive can only be justified if they are shown to serve public interest. I should affirm unhesitatingly very strong view that the existence of a viable, independent bar is an indispensable element of our system of justice.12
Justice Nelson of the US Supreme Court described the relation between advocate and client in these words:
There are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or, generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by sterner principles of morality and justice; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it.13 (p.316)
In Bushman v. State Bar,14 the Supreme Court of California15 was asked to decide on the issue of demand for excess fees coupled with misrepresentation and an attempt to solicit work. Finding Attorney Bushman guilty, the court held that the fee charged by Bushman was so exorbitant and wholly disproportionate to the services rendered as to shock the conscience. It said:
It is settled that gross overcharge of a fee by an attorney may warrant discipline. The test is whether the fee is ‘so exorbitant and wholly disproportionate to the services performed as to shock the conscience’. (Herrscher v. State Bar (1935) 4 Cal. 2d 399, 401-402 [49 P.2d 832], quoting from Goldstone v. State Bar (1931) 214 Cal. 490, 498 [6 P.2d 513, 80 A.L.R. 701]). In Herrscher this court stated that most cases warranting discipline on this ground involve an element of fraud or overreaching by the attorney, so that the fee charged, under the circumstances, constituted a practical appropriation of the client's funds.16
The court referred to the observation of the same court in Recht v. State Bar,17 that the right to practise law ‘is not a license to mulct the unfortunate’ [3b]. The court clearly said that his course of conduct with regard to the fee, contained an element of fraud or overreaching warranting disciplinary action.
Canon No. 12 of the American Bar Association Canon of Professional Ethics clearly prescribes: ‘In fixing fees it should never be forgotten that profession is a branch of the administration of justice and not a mere money-getting trade’.
The Indian Bar—Crassly Commercial
The Indian bar is well-nigh divorced from the ideal of public service and the cost of litigation is almost prohibitive for the common man. One case runs into several generations and the litigant is forced to sell his house, land, or even cloth to pay lawyers. The Supreme Court of India is hardly a court for Indians where only the filthy rich can afford to pay the fees of lawyers. The practice of charging exorbitant fees began immediately after the Supreme Court was set up in Calcutta in 1774. The lawyers at the Supreme Court charged fees two to five times as high as those in England, which was reflected in their pompous and lordly lifestyle. They opposed any attempts by the court (p.317) to regulate them. However, no Indian lawyer was allowed to practice before it until the middle of the nineteenth century.
In India, fighting litigation means inviting one’s own perdition. The poor cannot afford to hire lawyers even in sub-divisional and district courts, and fighting a case in the high court and the Supreme Court is prohibitive even for the well-to-do. The Law Commission of India recognized this problem and in 1958, it made recommendation for State legal aid and stressed on the right to assignment of counsel at government expense: ‘Unless some provision is made for assisting the poor man for payment of court-fees and lawyer’s fees and other incidental costs of litigation, he/she is denied equality in the opportunity to seek justice.’18 Again, in 1969, the Law Commission, in its 41st Report, recommended that representation by a lawyer should be made available at government expenses in all cases tried by a court of sessions.19 The Commission again, in its 48th Report, emphasized for making such a provision for all accused who were unable to hire the service of a lawyer for want of means. The Supreme Court also brought the right to free legal aid within the sweep of fair, just, and reasonable procedure under Article 21, for such accused who cannot afford a lawyer because of poverty, indigence, or incommunicado situation.20 In Hussainara Khatoon v. State of Bihar,21 the Court was quite forthright that it was not possible to reach the benefits of the legal process to the poor, to protect them against injustice and to secure to them their constitutional and statutory rights unless there was a nationwide legal service programme to provide free legal services to them, and tersely commented: ‘Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life conditions and to deliver justice to them’.22
Taking serious note of the growing commercialization of the legal profession, the Court deplored the vanishing trend of serving the society.23 In Indian Council of Legal Aid and Advice v. Bar Council of India,24 the Supreme Court ruled that it was obligatory on an advocate to maintain dignity and purity of the legal profession. Several lawyers defend the astronomical fee structure (p.318) shamelessly, and unabashedly argue that it is a market economy in which anyone is free to hire anyone; if someone engages a particular lawyer, they must pay according to his/her stature or go for someone else. Besides, they claim that they pay income tax which hurts them badly. Abhishek Manu Singhvi, senior advocate, argued in this manner in an interview to the author.25 In 2011, a big MNC showed Rs 2360 million as its legal expenditure, as it fought a case in the Supreme Court questioning the changes made to law to introduce retrospective taxation rules. Those rules, which were back dated to 1962, were designed to require taxes to be paid retrospectively. It reportedly paid the lead counsel Rs 1 crore (10 millions) per day. If money is the only attractant for lawyers, then the justice system will always be skewed in favour of moneybags who can pay the astronomical amount demanded by the really ‘talented professionals in robes!’
Unlike in the inquisitorial system, in the adversary system, the judge plays the role of an umpire for the most part, listening to arguments of both sides. They then draw their inferences and adjudicate. It requires evenness of footing for both parties, in the absence of which the financially weak, unable to hire an expensive lawyer is sure to keel over. V.R. Krishna Iyer has very rightly commented:
The Indian advocate should never be the ‘learned’ call girl of Money Power or of the political power of the hour, but be fighting the battle for the Disabled Human Sector. Governments have come and gone, public moral weight-lifters, revolutionary sloganeers and other brands of mareechas have had their innings. Hopes have proved dupes in the human rights’ area, what with the happenings in Tihar and Bihar, even Kerala and Bengal. Let the human rights vocalists at the bar see beyond political and economic detinus [sic]. Let lawyers spare some tears for tortured prisoners, raped or robbed women, burnt brides, bonded labour, suppressed harijans and girijans pavement dwellers, the waifs and strays, the exploited, the destitute and disabled brothers and sisters dying in the heat and in the cold- the silent martyrs of social injustice whom society has declared non-persons. Advocates, as judicial decisions attest, have done their duty by India (Private) Limited! The hour is near to do your duty by India (Public) Unlimited!…. Ask yourselves, who are ‘We, the People of India?’ A people-conscious, people-oriented, professional patriotism alone will make the bar the bar of liberty, not pre-independence anecdotage or post-independence dotage. If Freedom is what Freedom does, the Indian bar must cease to be a conspiracy against the laity, but become a sensitive collective which will strike (p.319) for Right against Might, for Law and Justice based on Fuller’s inspiration: ‘Be you ever so high, the law is above you!’26
Actually, since India had no tradition of legal profession, fees was exorbitant right from the beginning. England had a different tradition where clergymen used to function as lawyers in the ecclesiastical court. For them, it was a service. The gown worn by lawyers was the dress of the clergyman. It had a pouch at the back and the client dropped some guineas in it. The practice continued even after the king’s court was set up and the professional class of barristers came up. The practice degenerated in course of time, and though they could not charge their fees directly, solicitors settled it before bringing clients to them. However, barristers could not sue any client for the non-payment of their fees. Even now they cannot sue, but they can complain to the Law Society against the solicitor who has not paid the fees. Thus, eventually they got the right to demand fees. The degeneration in the profession can be gauged from the fact that by the 1870s, the Law Society established itself as an effective trade union. Solicitors were never bound by this tradition.
In England, a lawyer is free to get enrolled both as a barrister as well as a solicitor, but one has to take a license every year whether one wishes to practice as a barrister or as a solicitor that year. Solicitors did not enjoy social respectability, but in the second half of the nineteenth century, they earned financial prosperity and social prestige. Abel-Smith and Robert Stevens have written about the rise of the status of solicitors:
Even as late as 1860, solicitors were generally regarded by the upper classes as tradesmen, who, if they visited a barrister’s house, entered by the back door. But the situation changed rapidly. The solicitors’ preliminary examination introduced in 1860 with the aim of excluding entrants who were not gentlemen helped to alter the character of the profession. By 1881 it was claimed that solicitors were ‘now largely recruited from the public schools, and that 16 per cent of those who passed the final examinations were graduates of Oxford or Cambridge. Not only social status but also power was gradually gained by the junior branch of the profession. In 1851 there were eight solicitors in the House of Commons; in 1881 there were seventeen. By the Edwardian era no one better symbolized the prosperity and respectability of middle class England than the family solicitor. Meanwhile, as far as professional relations went, (p.320) it was perhaps symbolic that Britain entered the First World War with a barrister Prime Minister and ended it led by a solicitor. The ‘locust years’ between the War merely confirmed the earlier trends.27
The same English barristers who came to India to practice before the Supreme Court did not follow the ethics prevalent in their own country and earned two to five times what their colleagues did back home. Litigation in India became so expensive and long-winding running into decades or generations that it became a common belief that getting embroiled in a litigation meant moving towards perdition. During the British rule, Indian lawyers earned much more than their British counterpart and law was the most remunerative profession. M.K. Gandhi was astounded at the fabulous fee structure of lawyers in Bihar and Bengal when he came to Bihar to see the plight of indigo planters in 1917: ‘The figures of the fees they charged and the standard of a barrister’s fees in Bengal and Bihar staggered me. “We gave Rs. 10,000 to so and so for his opinion”, I was told. Nothing less than four figures in any case.’28 M.K. Gandhi has made caustic remarks about the exorbitant fee structure of lawyers in India:
The economic drain that the law courts cause has at no time been considered. And yet it is not a trifle. Every institution founded under the present system is run on a most extravagant scale. Law courts are probably the most extravagantly run. I have some knowledge of the scale in England, a fair knowledge of the Indian and an intimate knowledge of the South African. I have no hesitation in saying that the Indian is comparatively the most extravagant and bears no relation to the general economic condition of the people. The best South African lawyers—and they are lawyers of great ability—dare not charge the fees the lawyers in India do. Fifteen guineas is almost a top fee for legal opinion. Several thousand rupees have been known to have been charged in India. There is something sinful in a system in which it is possible for a lawyer to earn from fifty thousand to one lakh rupees per month. Legal practice is not—ought not to be—a speculative business. The best legal talent must be available to the poorest at reasonable rates.29 (p.321)
Jawaharlal Nehru was also pained to see how avaricious lawyers were who fleeced even freedom fighters and victims of the monstrous injustice of the British government:
A defence committee was formed for the Meerut accused, of which my father was chairman…. Money, was not easy to collect … and lawyers would only sell their services for a full pound of somebody’s flesh. We had some eminent lawyers on our Committee … but it was not possible for them to sit down in Meerut for months at a time. The other lawyers whom we approached seemed to look upon the case as a means of making as much money as possible.
Apart from the Meerut Case I have been connected with some other defence committees—in M. N. Roy’s case and others. On each occasion I have marveled at the cupidity of men of my own profession. My first big shock came during the Punjab martial law trials in 1919 when a very eminent leader of the profession insisted on his full fee-from the victims of Martial Law, one of them even a fellow-lawyer and many of these people had to borrow money or sell property to pay him. My later experiences were even more painful. We had to collect money, often in coppers from poorest workers, and pay out fat cheques to lawyers.30
B. Sen has written that when he was assisting senior advocate, P.R. Das in the Supreme Court, who had come over from Patna to argue the Bihar and UP Zamindari abolition cases,31 Das mentioned a particular sum as his (Sen’s) fee to the client which was so high that he was astonished, as it was completely disproportionate to his standing at the Bar: ‘I whispered to him that the fee was too high. He turned to me and said, “No, that is your fee. You are from the Privy Council Bar”.’32 Indian lawyers have one more feather in their caps—they not only charge for appearance, but also for non-appearance, ensuring that the opposite party does not get any good advocates.
However, the greatest leaders of India were lawyers only who gave up their lucrative practices to serve the nation. That spirit should not die down. When the first historic all-India conference was held on 28 December 1885 in which the Indian National Congress was founded, 39 of the 72 delegates (p.322) who attended it were lawyers. The Parliament and the State Legislatures were initially packed with overwhelming number of lawyers. Lawyers did raise their voice when the arrogant executive sought to trample people’s freedoms, and constitutional values were at stake, be it the supersession of judges or the imposition of the internal emergency in June 1975.
In the Supreme Court, fees were quite reasonable due to the self-imposed restrictions of Setalvad. Till the early 1970s, he charged Rs 1040 for SLP (katchi fees) and Rs 1680 for arguments (pakki fees) per day. Once a big business magnate, who had lost in district court as well as in high court, moved the Supreme Court. Since his case was weak, most of the senior advocates could not find any substantial point to challenge the decision of the high court. Setalvad was approached and he accepted the brief. He got the case admitted and finally won it. The industrialist client got the relief of nearly Rs 70 lakh in the early 1970s. The grateful client wanted to meet him, but he refused. On the request of the advocate-on-record, he gave him an appointment for one minute. The client gave him a blank cheque, requesting him to fill up any amount that he wished. Setalvad flew into a rage and adjured him not to do such a thing again.33 If some senior counsel tried to charge more, it was resisted by the bar. Ashok Sen was the first to break this self-imposed code.
Esha Saha of Live Law has enumerated different heads under which senior advocates charge money—retainer fee (a fixed amount that a client pays in advance to a senior counsel to secure his/her service and in a way ensures that the best legal mind is not available to the adversary), reading fee, conference fee (conference with the client to understand the case, which is charged on hourly basis; it is charged from the second conference, and there are some examples of counsel charging for conference in car, flight, and court corridor), settlement of brief charges (fee charged for vetting the brief already prepared by an advocate, legal opinion/consultation (fee charged for giving oral or written opinions; this is a good practice area for government law officers), and appearance fee. She has written that law is the most sought after and money spinning career in the US, but even the lawyers from the US are astonished to hear about the fees charged by star lawyers in our country.34 Charging money for non-appearance, euphemistically called retainership, is the most abominable and indefensible by any logic.
Adversarial litigation system makes the litigation so expensive, and thus one-sided, that it completely throttles the fundamental values of fair and equal access to justice. Big corporate companies or affluent litigants can delay or even completely frustrate the conclusion of litigation by deploying shenanigans such as overburdening plaintiffs with documents in discovery, challenging every step of the pre-trial process and then arguing every point during trial. There are case studies of excessive adversarialism in which lawyers ensure that the other side goes broke and the process is turned upside down. It will be pertinent to cite the following case study:
Lawyers for a large multinational fast food chain routinely issue defamation writs against anyone who criticizes the company on issues like its environmental responsibility, its labour standards and attitudes towards union representation of its workers, the healthiness of its products, misleading and deceptive advertising, and advertising aimed at children. Most protestors faced with a defamation writ from the company agree to apologise and withdraw their protest activities. When two protestors in England decide to defend the writ, the company’s lawyers spend four years on interlocutory applications aiming to have the protestors’ defence struck out before the case be heard on its merits. Then they spend a further 314 trial days (a record for the longest trial of any kind in English legal history at that time) and 10 million pounds on a trial in which the company is represented by a large team of barristers and solicitors, while the protestors represent themselves. The company is successful in relation to about half of the statements it alleged were defamatory. Later the defendants were successful in the European Court of Human Rights where they argued that they did not have a fair trial because they lacked legal aid, and that the outcome was a disproportionate interference with their right to freedom of expression.35
Legal Language, Legalese, and Prolix Draft
Lawyers are known for confusing even the best minds. They use a kind of language that is abstruse, recondite, and periphrastic. Actually, this (p.324) is a problem with most professions, more so with the legal. Brenda Danet argues:
[o]ne of the consequences of the complex division of labour in modern societies is the tendency for occupational specialities to develop their own communication codes. We frequently speak of these codes as ‘argot’, ‘cant’ or jargon…. ‘Cant’ may be the most negative term; it was first used to denote the secret language of gypsies and thieves in the fifteenth century. Occupational jargons are functional insofar as they facilitate communication about difficult technical matters but dysfunctional if they create undesirable barriers between members of the group and outsiders.36
Lawyers make draft that is verbose, repetitive, and circumlocutory. Obsolete Latin and foreign words are still used without any rhyme or reason as these words and phrases have equivalents in English. Some of the frequently used phrases are: a fortiorari (all the more so), ab initio (from the beginning), ad hoc (for this purpose), de facto (in fact) de jure (in law), ejusdem generis (of the same kind), inter alia (among other things), ipso facto (by the mere fact), obiter dictum (an observation made in the judgement which is not binding), ratio decidendi (the principle of law decided in the case and which is binding) and stare decisis (principles are authoritative and binding), and so on. Even in English, the terms of Old English, which are obsolete, are used like ‘The petitioner most respectfully sheweth’. Modern legal English is still a mixture of Latin, Old English, and Norman French notwithstanding the fact that there were moves in the eighteenth century for conducting legal proceedings in English. Some common words have a different meaning for lawyers. Certain honorifics are prefixed ad nauseam like ‘Hon’ble’ with judge or court or ‘his lordship’ in the plaint, and certain expressions bordering on blandishments like ‘his honour/lordship was most graciously pleased to pass this order’ are frequently used. Nothing seems to have changed in this regard in the last three-four centuries. David Pannick has this to write:
Legal language delights in unnecessary repetition: the truth, the whole truth, and nothing but the truth … to have and to hold … his last will testament … null and void … it revels in clichés that are generally avoided in ordinary speech: rack and ruin … part and parcel … safe and sound … lawyers use language as a protective shell, designed to insulate them from the consequences of their word or actions: without prejudice … in my submission … it would seem … the (p.325) alleged … if any … the language of the law welcomes the euphemism. It uses it for a variety of purposes including ceremony, obfuscation, and the avoidance of what might otherwise be distasteful.
All these linguistic devices help the lawyer to communicate in a tongue that cannot be understood by others. The legal profession is well aware that, in Bentham’s words, ‘the power of the lawyer is in the uncertainty of the law’.37
Statutes, often drafted by lawyers, are more often than not incomprehensible not only to the common man, but even to scholars. The footnote to Part III of Schedule One of the National Insurance Act, 1946 (UK) exemplifies it vividly. It reads: ‘For the purpose of this part of the Schedule, a person over pensionable age, not being an insured person, shall be treated as an employed person if he would be an insured person were he under pensionable age and would be an employed person were he an insured person’. Footnotes are added to clear ambiguity. But what does it do? Another example from the Banking Act of 1979 (UK): ‘Any reference in these regulations to a regulation is a reference to a regulation contained in these regulations’.38
It may be pertinent to cite the following proclamation issued by Sir George Arthur (1784–1854) when he was lieutenant-governor of Van Dieman’s Land (Tasmania):
And I do herby strictly command and order all Aborigines immediately to retire and depart from, and for no reason, and on no pretence, save as hereinafter provided, to re-enter such settled districts, or any portions of land cultivated and occupied by any person whomsoever, on pain of forcible expulsion therefrom, and such consequences as may be necessarily attendant on it.39
Michéle M. Asprey has written,
unfortunately, this meant nothing to the Aboriginal people, who could not read it. They kept on returning to the ‘settled districts’ and kept on suffering the ‘pain of forcible expulsion’, which was probably considerable, as (p.326) well as ‘such consequences as may be necessarily attendant’, which no doubt included death.
The proclamation did not do anything but give the authorities an excuse to punish the Aboriginal people for breaking the law they couldn’t probably have understood.40
Sometimes, even judges use bombastic language to make ostentation of their learning but end up writing judgments which are verbose and the least comprehensible. The following quote from Circuit judge Ralph Anderson, of South Carolina, testifies to it:
This evidentiary record consisting of a four-day trial is gargantuan, elephantine and Brobdingnagian…. It would be hebetudinous and obtuse to fail to be cognizant of the adverse consequences of a ruling in this case. However, a decision by this court should not be infected with pusillanimity and timidity. The karma of this case must not be aleatory or adventitious, but a pellucid and transpicious analysis of the law and facts…. With certitude and intrepidity and, hopefully, with some degree of sagacity and sapience and perspicaciousness, this court disposes of the relevant and germane issues. Autochthonously, this court bifurcates the issues for decisional purposes. The primigenial issue is whether a new trial should be granted. The court comes to the infrangible, ineluctable and adamantine conclusion that defendant’s motion for a new trial absolutely must be denied. The French phrase ‘pas du tout’ is applied in rejecting the defendant’s argument…. I find defendant’s degree of culpability to be magnitudinous and megatherine.41
Lord Justice Cumming-Bruce acknowledged the unintelligibility of a decision that ‘parts of this judgment I am afraid are still drafted in a kind of legal jargon which may late have to be translated into English, and I hope it is intelligible’.42
Franz Kafka presents a picture of advocates and the draft they make in The Trial. The traveller tells Joseph K,
let me tell you that my petition turned out later to be quite worthless. I even had a look at one of them, thanks to the kindness of a Court official. It was very learned but it said nothing of any consequence. Crammed with Latin in the first place, which I don’t understand, and then whole pages of general appeal (p.327) to the Court, then flattering references to particular officials, who were not actually named but were easy enough for any one versed in these matters to recognize, then some self-praise for the Advocate himself, in the course of which he addressed the court with a crawling humility, ending up with an analysis of various cases from ancient times that were supposed to resemble mine.43
Lawrence M. Friedman has also made a searing attack on the verbosity and vagueness of the language that lawyers use:
Hardly anyone admires the way lawyers handle language. Good professional writing is not common; a judge like Oliver Wendell Holmes, Jr., for example, known for his pungent style, is very much the exception. The code Napoleon is said to be French style at its best. Stendhal, according to one story, sharpened his style by reading from its text. On the whole, however, lawyer-language is unloved. People indict it for a number of linguistic crimes. It is tricky, deceptive, unlovely, incomprehensible. Two sins are worth some brief comment. The first is vagueness—diffuse, windy language, whose meaning cannot be grasped; the second is verbosity, which also leads to poor communication.
Vagueness is common enough in legal writing. Sometimes it is quite deliberate. It may make sense to draft a statute vaguely; empty phrases can compromise or paper over, irreconcilable differences, like the language of a diplomatic communiqué.44
Actually, it is the tendency among ordinary human beings to show off their erudition. The easiest way to do so is to make the writing abstruse with highfalutin and alien words couched in complex sentences. This tendency is more pronounced in case of professionals who have to establish that their area of learning is too recondite for others to tread in. Brevity is the soul of wit, as the adage goes, and brevity is a direct product of clarity. Brevity in the professional writing, particularly legal writing, is missing because lawyers themselves lack clarity and in fact, they do not prefer clarity as the mist of confusion supplies them oxygen to survive. General words have different meanings in the legal world. For example, ‘distress’ is a common word which means suffering, worry, and so on, but in the legal language, if someone says that they exercise ‘distress’ over someone, it means they seize the person’s goods to realize the debt owed to them. (p.328)
One basic reason for the prolix draft is that for a long time, legal fees were calculated on the number of pages. In order to increase the number of pages, lawyers began leaving wide margins and blank spaces. It acquired such an odious dimension that efforts were made to curb the malpractice by specifying the number of words each folio. The effort failed to check prolixity. Besides, using redundant words and regurgitating the same facts and law again and again was also meant to make the draft longer. Though the system of payment per pages disappeared in due course, the atavistic practice remained instinct.45
Movement for Plain Language
Realizing the need of plain language, a movement spread around the world for making statutes, laws, bylaws, legal documents, and so on, simple and comprehensible. The movement that began in the 1970s in the US, soon spread to Canada, the UK, the European Community, New Zealand, Australia, Sweden, Denmark, South Africa, and even India. Tracing the genesis of this movement, Michele M. Asprey writes:
The Plain language began in the 1970s as a part of the consumer movement when various corporations were prompted to explore the benefits of plain language in their consumer documents. Its growth coincided with an era of demystification of (and disenchantment with) the professions. It was a time of increasing interest by linguists and others in the process of communication. But even so, plain language soon entered the mainstream of business and the law, quickly gaining legitimacy as lawyers and clients began to understand its advantages.46
In the US, the first document which adopted the plain language is the consumer loan note, launched on 1 January 1975 by First National City Bank (now Citibank). It led to heavy reduction in the number of suits the bank had to file against consumers to collect its debts. In Australia and Canada also, the banking and insurance companies were the first to move to plain language. In the US, in 1969, President Nixon ordered that daily government journal, the Federal Register, be written in ‘language which is readily understandable by the layman’.47 Sweden took the lead in plain language. As early as 1713, (p.329) King Charles XII issued this ordinance: ‘His majesty the King requires that the Royal Chancellery in all written documents endeavour to write in clear, plain Swedish and not to use, as far as possible, foreign words.’48
In 1976, the Swedish government appointed a linguist to the Cabinet Office to modernize legal language. In 1978, President Jimmy Carter issued a similar order that ‘regulations should be as simple and clear as possible’.49 In the UK, the Renton Committee in its report, published on 7 May 1975, pointed to the convoluted drafting in British statutes and recommended the explanatory material. It led to rewriting of some laws. Similarly, its Civil Procedure Rules was also reformed in 1999 in the light of the Report of Lord Justice Woolf, called ‘Access to Justice’. A word like subpoena was replaced by witness summon. In 1993, the European Council of Ministers passed a resolution in the European Union spelling out how legislation should be drafted: ‘The wording of the act should be clear, simple, concise and unambiguous, unnecessary abbreviations, “Community jargon” and excessively long sentences should be avoided’.50
Laws in India are verbose and incomprehensible as they were enacted a la Britain. Nani A. Palkhivala has written:
As regards the drafting of statutes, we have unfortunately adopted the British model which is far worse than its European counterparts. For instance, the British law of copyright runs to 92 pages. The French law covering the same area, and printed in similar type-size, could be contained in 20 pages and the Swedish in only 13 pages. Even shorn of those provisions for which there is no equivalent in the laws of other countries, the British law could take up about 70 pages—more than three times the French and five times the Swedish.
Referring to a certain statute, Lord Reid said that he found it impossible ‘to discover or even surmise what the draftsman can have had in mind’. Commenting on the language in which different acts of Parliament were couched, various authorities have expressed their deep dissatisfaction. ‘Laxity or ambiguity of expression’, was the verdict of the Statute Law Commissioners in 1835…. ‘Verbose and tautologous’, was the comment of the Master of the Rolls in 1834. ‘That chaos of verbal darkness’, was how Lord Justice McKinnon described a British statute in 1944.51 (p.330)
Of late, the Supreme Court of India also took the initiative to simplify the law. Its Project Committee prepared a set of Restatement of Indian Law covering three different legal subjects—Legislative Privilege, Contempt of Court, and Public Interest Litigation.52 On 11 October 2011, the then CJI S.H. Kapadia released it in New Delhi. The Committee was headed by its judge, Justice R.V. Raveendran (since retired). Another volume came out in 2012, but there has been no progress since then.
The expose by NDTV telecast on 30 May 2007, showing unethical practice of trying to win over prosecution witness by prominent lawyers, only confirms the age-old belief about lawyers. What R.K. Anand, a prominent lawyer and former MP, did is not a case of borderline deviation, but the most reprehensible attempt to affect the course of justice. He was found guilty of criminal contempt of court for colluding with the special public prosecutor for suborning prosecution witness in criminal trial and was barred from practicing before the Delhi High Court and courts below it for four months.53 It concerned a criminal trial in which the grandson of a former admiral was accused of causing death of six people, including three policemen, by rash and negligent driving. He crashed through a police check post while driving a black BMW car in an inebriated condition. The Supreme Court listed the malpractices of advocates and upheld the punishment awarded to Anand:
[I]n a given case a direction disallowing an advocate who is convicted of criminal contempt from appearing in court may not only be a measure to maintain the dignity and orderly functioning of the courts but may become necessary for the self protection of the court and for preservation of the purity of court proceedings. Let us, for example, take the case where an advocate is shown to have accepted money in the name of a judge or on the pretext of influencing him; or where an advocate is found tampering with the court’s record; or where an advocate is found actively taking part in faking court orders (fake bail orders are not unknown in several High Courts!); or where an advocate has made it into a practice to browbeat and abuse judges and on that basis has earned the reputation to get a case transferred from an ‘inconvenient’ court; or where an advocate is found to be in the habit of sending unfounded and unsubstantiated allegation petitions against judicial officers and judges to the superior courts. (p.331) Unfortunately these examples are not from imagination. These things are happening more frequently than we care to acknowledge … In such a situation the court does not only have the right but it also has the obligation cast upon it to protect itself and save the purity of its proceedings from being polluted in any way….54
Lawyer Somnath Bharti, who subsequently became the Law minister of Delhi in the Aam Aadmi Party (AAP) government in December 2013, was indicted by a Patiala House court in August 2013 for ‘tampering with evidence’. CBI Special judge hauled up Bharti and his client Pawan Kumar—facing prosecution on corruption charges—after the CBI accused them of influencing a prosecution witness by speaking to him on phone and discussing the case. ‘The conduct of the accused Pawan Kumar and his advocate (Bharti) is not only highly objectionable, unethical but also amounts to tampering with evidence’, observed the judge in her order cancelling Kumar’s bail on the ground that he misused his liberty.55 Kumar was facing prosecution by the CBI since 2006 in separate cases for his alleged acts of omission and commission while he worked with the State Bank of Mysore. In one of the cases, testimony of B.S. Diwakar, a prosecution witness, was recorded in court. During his cross-examination, Kumar through his lawyer Bharti, submitted that he wanted to confront Diwakar with an audio conversation which he wanted to place in the court. A baffled court then came to know that he/his advocate had a telephonic conversation with Diwakar in which he (Diwakar) controverted what he testified in the court. Kumar recorded the conversation and Bharti argued that his client should be allowed to place the audio tapes on record to confront the witness and bring out the truth. Kumar challenged his indictment up to the Supreme Court but was not absolved. Bharti, nevertheless, continued to claim that he had done nothing ignoble as his intention was to bring out the truth. However, Bar Council of India Rules under Section 49(1)(c) of the Advocates Act, 1961 lays down: ‘An advocate shall not in any way communicate or negotiate upon the subject matter of controversy with any party represented by an advocate except through that advocate’.
These are only some of the examples. Advocates indulge in many more reprehensible practices. Many a time, advocates of the two parties strike a deal between themselves and both take money from their clients in the name of paying the judge with a promise that the money will be returned if the party (p.332) gets an adverse order. One of the contestants is bound to win. The money of the loser is returned saying that the party which won paid more, and the remaining money is distributed between the two advocates. Many advocates work as touts for senior lawyers and charge a hefty commission from the fees charged by the senior counsel. It can be unravelled easily if one does a sting operation on lawyers.
However, the Bar Council, in all its wisdom, gave Anand a long time to reply. If 11 MPs could be expelled after conducting thorough probe in less than two weeks in 2005, why can’t the Bar Council take an expeditious decision? Though the Bar Council has not been very firm and quick in cases of misconduct against lawyers, on some occasions it has taken action and recorded facts which suggest how low advocates stoop. In H.G. Kulkarni and others v. B.B. Subedar, the Disciplinary Committee of the BCI has recorded:
Advocate obtained signature of complainant on some blank forms, blank papers and blank cheques, and withdrew amounts from his bank account without his knowledge, which he repaid back after complaint to the bank. Also received excess amount as fee and court fee for filing cross-Appeal or cross objection in court, which he did not file, and charged the fees on a percentage basis contingent upon the result of the case.56
The respondent-advocate had withdrawn Rs 2,95,766.25 from the account of the first complainant by playing fraud. The said amount was credited to the account of the respondent on 29 August 1988, and then using the blank cheque signed by the first complainant, the respondent took an amount of Rs 2,11,615 from the bank.
The Supreme Court has also commented copiously on the despicable conduct of lawyers. Condemning the callous and indifferent attitude of some advocates, the Supreme Court stressed on the need to improve the quality of service.57 It criticized advocates attending court with firearms and browbeating, or pressurizing judicial officers or authorities calling such conduct unbecoming to the legal profession which undermines the rule of law,58 (p.333) it exhorted that an advocate should not show disrespect, overbear, and overawe the court.59 The Court lamented the unprofessional conduct of advocates to retain briefs and yet not appear in court, which is not occasional because of personal inconvenience but has become a regular feature.60 In P.D. Gupta v. Ram Murti and Another,61 the Supreme Court found that the advocate purchased property from the client, which was subject matter of dispute between the parties. The Court observed:
A lawyer owes a duty to be fair not only to his client but to the court as well as to the opposite party in the conduct of the case. Administration of justice is a stream which has to be kept pure and clean. It has to be kept unpolluted, administration of justice is not something which concerns the Bench only. It concerns the Bar as well. Bar is the principal ground for recruiting Judges. No one should be able to raise a finger about the conduct of lawyer. While conducting the case he functions as officer of the court.62
Advocates have been punished for betraying the confidence of the clients, breach of trust, financial misappropriation, suppression of material facts, taking undue advantage of one’s position, misuse of signed documents and forgery, purchase of property of the client in dispute, contingent fees, contempt of court, duty to the court, physical assault, and some other kinds of misconduct.63 What has come to light is the tip of the iceberg.
Role of Law Officers of Government
In 2013, the role of Attorney-General, Goolam E. Vahanvati came under scanner for his role in country’s biggest scandal of the time—the fraudulent allocation of 2G cellular spectrum. On 27 February, he made history of sorts by becoming the first attorney-general who appeared before a CBI special court in Delhi’s Patiala House and stood in the witness box, refuting allegations about his role in the scam. Sushil Kumar, the defence counsel for the prime accused, former communications minister Andhimuthu Raja, peppered Vahanvati with questions suggesting that he, as the then solicitor-general, had given legal imprimatur to the policy under which the allocations (p.334) were made. As Vahanvati denied allegations, Raja, at one point, interjected loudly inside the courtroom, exclaiming, ‘he is telling all the lies and I am the one going to jail’.64
Again, the role of Vahanvati and that of the then Additional Solicitor General Harin Raval, in misleading the Supreme Court in the Coalgate investigation case, raised serious questions about the role of lawyers as officers of the court who are supposed to assist in arriving at justice. Raval was forced to quit after it became evident that he lied to the Court on 12 March that the 8 March status report of the CBI into the coal scam had not been shared by the political executive. Before quitting, Raval dashed off a letter to Vahanvati accusing him of influencing the CBI investigation and making him a scapegoat.65 In his damning latter, Raval pointed out that the attorney-general was present at the meeting with the Union Law Minister, Ashwani Kumar. Vahanvati, appearing for the Centre before a bench headed by Justice R.M. Lodha, admitted in the Court that he was present in the said meeting but he never saw the draft (report).66 The CBI, in its affidavit submitted in the SC on 6 May, confirmed that Vahanvati was present in the meeting held by the law minister and instrumental in the changes made in the draft report, but he had denied that he had any knowledge about it. It amounts to nothing short of perjury.
The participation of the attorney-general in the meeting with the Law minister is quite disturbing. He was the top law officer of the government which was in the dock in the concerned case. So, how could he vet the report of the agency which is investigating the alleged irregularities? The attorney-general for India is a constitutional post created under Article 76 of the Constitution. He enjoys an exalted position and is one of the only two constitutional functionaries who can address the Parliament without being its member—the other one being the comptroller and auditor general. The Constitution provides that a person to be appointed as attorney-general should be ‘qualified to be appointed a Judge of the Supreme Court’. So, he is supposed to be fearless like a judge and must give only the correct advice to the government, the court, and the Parliament like the conscience keeper of the country. Vahanvati is also accused of indiscretion because he continued to give opinions, or appear in cases involving Anil Ambani and his companies (p.335) despite being his close friend. Activist advocate Prashant Bhushan said, ‘Vahanvati told me himself that he is close friend of Anil Ambani…. That, itself, is a conflict of interest.’67
In England, the office of the attorney-general is regarded a political office as s/he is a member of the council of ministers also. Still, as the top law officer of the Crown, s/he enjoys a considerable degree of independence. In India, it is a non-political post, but the tradition goes that the attorney-general resigns with the change of the government. However, there are examples when the law officer did not resign with the change of government. H.M. Seervai is one such example who remained advocate-general for 17 years in Maharashtra. T.R. Andhyarujina has written:
Governments came and went but Seervai did not feel it necessary to resign with the installation of a new government nor did any new government ask for his resignation…. He refused to defend those policies of the government which he felt were unconscionable, and against his convictions. He refused the government brief when it sought to ban the teaching of English in Anglo-Indian schools, believing that the policy was wrong. He did not think it right to defend the erection of a ‘martyrs’ memorial’ in Bombay in honour of states [sic] formed on the basis of languages.68
Justice M. Hidayatullah has also made the position clear:
In Adi Pheroz Gandhi v. H. M. Seervai (1971 SC 385), there was a difference of opinion in the Bench mainly because of a decision of Lord Denning M. R., which we in the majority thought could not apply in India, because the Advocate-General and Attorney-General do not represent either the State or the Governor or the President, as the case may be, in the same way as the Attorney-General does in England and some of the colonies. There the Attorney-General represents the Queen in all cases in his discretion and thus has an interest. The Advocate-General in India is heard more or less as an amicus curiae and has no other interest.69 (p.336)
However, taking a contrary stand in B.P. Singhal v. Union of India,70 a five-judge Constitution Bench of the Supreme Court justified the change of attorney-general on the ground of loss of confidence:
For withdrawal of pleasure in the case of a Minister or an Attorney General, loss of confidence may be a relevant ground. The ideology of the Minister or Attorney General being out of sync with the policies or ideologies of the Government may also be a ground. On the other hand, for withdrawal of pleasure in the case of a Governor, loss of confidence or the Governor’s views being out of sync with that the Union Government will not be grounds for withdrawal of the pleasure. The reasons for withdrawal are wider in the case of Ministers and Attorney-General, when compared to Governors. As a result, the judicial review of withdrawal of pleasure, is limited in the case of a Governor whereas virtually nil in the case of a Minister or an Attorney General.71
This is uncanny as the Court has ruled differently in case of governor, but the attorney-general has been equated with minister, diminishing the impartiality of the constitutional post.
Setalvad, the first attorney-general, observed a high standard of ethics and never called on any minister except the then Prime Minister Jawaharlal Nehru, then Home Minister Sardar Vallabhbhai Patel, and then Education Minister Abul Kalam Azad. Other ministers, including the law minister, came to his chamber. But there was a fall in the standard after him. Niren De used to call on even the private secretary to the prime minister. He took a servile position in the infamous Habeas Corpus case72 during the Emergency that there is no right to life. Now, we see the attorney-general frequently meeting the law minster in the latter’s chamber. In protocol, the law minister is senior to the attorney-general, but ideally the client comes to the lawyer. Even Setalvad was not totally right by making exceptions in cases of Nehru, Patel, and Azad. When Soli Sorabjee was appointed attorney-general in 1989 by the National Front Government headed by V.P. Singh, he made an alarming statement that his role was not that of a hatchet-man of the government.73 Perhaps he made the statement as V.P. Singh had ridden to power with a promise to cleanse the system. The previous government had been mired in scams like Bofors, and Sorabjee wanted to forewarn that he would not be a party to any cover-ups (p.337) even if skeletons tumbled out of the incumbent government’s cupboard. When he became attorney-general for the second time in 1998 in the NDA government headed by Atal Bihari Vajpayee, he took a position contrary to the one taken by the government in the case pertaining to the educational institutions run by the minorities.74
About the role of the government counsel, the Supreme Court has observed:
A lawyer is a responsible officer of the court. It is his duty as the officer of the court to assist the court in a properly prepared manner. That is the sacrosanct role assigned to an advocate. As far as the counsel for the state is concerned, it can be decidedly stated that he has a higher responsibility…. He is expected to have higher standard of conduct … it is because he has access to public records and is also obliged to protect the public interest. That apart, he has a moral responsibility to the court. When these values corrode, one can say ‘things fall apart’.75
Impartiality is expected of public prosecutors. They may be representing the state, but they are not supposed to chime in with the police as their first and foremost duty is to uphold justice. The Supreme Court defined their role as: ‘The court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor., its ‘Minister of Justice’. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the executive by resort to provisions of Section 361 Criminal Procedure Code’.76
Criminal Acts of Lawyers
Lawyers have been indulging in several unethical practices about which there are hardly any complaints. On the basis of personal experience, I can authentically say that lawyers are intimidating customers of private mobile operators and private banks for payments of arrears, which are often inflated and settlement of accounts which are generally manipulated, and would often say that they were calling from the warrant section of some court which does not exist. The numbers from which these calls are made are that of lawyers and any thorough investigation will expose the whole racket. Lawyers commit criminal offences and use their robes to ward off penal action. When the Lucknow Bench of the Allahabad High Court directed the CBI to investigate cases (p.338) in which lawyers are accused but they have not been named, it found that around 80 lawyers were guilty of criminal offences and arrested two of them. Lawyers of Lucknow struck work against the police action in Lucknow.77 In 2013, Delhi Police arrested an advocate, Baljeet Singh Sehrawat, who took a contract for Rs 5 crores for the murder of Deepak Bhardwaj, Bahujan Samaj Party (BSP) leader and real estate tycoon.78 In Himmat Ali Khan v. Ishwar Prasad Arya,79 the Supreme Court directed to remove the name of the advocate, Ishwar Prasad Arya, from the State Roll of Advocates for ever. The advocate had assaulted his opponent with a knife in the court room and he was sentenced to rigorous imprisonment for a period of three years under Section 307 of the IPC. He also forged a letter signed by deputy secretary, Ministry of Home, Uttar Pradesh, which said that the governor had been pleased to suspend the conviction of the accused advocate under Article 161 of the Constitution. The State Bar Council (SBC) of Uttar Pradesh debarred him from practicing for three years but the Bar Council of India (BCI) set aside the order and acquitted him. The Supreme Court reversed the judgement of the BCI.
An advocate in Delhi was found to have links with terror outfit. It came to light when his name was recommended by the collegium of the Delhi High Court for appointment as a high court judge and the Supreme Court collegium endorsed it and forwarded it to the government. It was the Intelligence Bureau which rang the alarm bell that the lawyer had links with a terrorist organization.80 Lawyers, the officers of the court, unleashed violence, and assaulted students, teachers, and journalists inside and outside Patiala House courts in New Delhi on 15 February 2016 when Kanhaiya Kumar, then president of the Jawaharlal Nehru University Students’ Union was being taken to court after his arrest in a sedition case. They created mayhem in the court complex again two days later, heckling journalists and kicking Kanhaiya, prompting the Supreme Court to ask officials to ensure safety of the accused.81 It raised a serious question mark on the role and function (p.339) of advocates. Barely five days earlier, on 10 February, lawyers in Lucknow resorted to arson and violence during a protest march against the murder of advocate Shravan Kumar Verma. An advocate was openly flaunting a gun.82 One wonders if the society is heading back to the old ordeal system!
In Pakistan, in January 2011, young lawyers created mob scenes to express solidarity with Malik Mumtaz Hussain Qadri, the self-confessed assassin of Governor Salman Taseer who was awarded death sentence by the court. Lawyers showered rose petals on Qadri, a member of an elite police group assigned to guard the governor, and threatened the life of the judge who sentenced him to death.83 Taseer was brutally slain because he mustered courage to state publicly that a blasphemy law was being used to discriminate against religious minorities.
No wonder, in the US, they are called ‘paid thugs’ and this image is reflected in a widely used bumper sticker: ‘MY LAWYER CAN BEAT UP YOUR LAWYER’. In fact, such an incident did take place in the US in the nineteenth century when a lawyer killed another lawyer. Thomas Hart Benton (1782–1858) was the most influential Missouri politician during his tenure as a senator. He practiced law and often argued cases against Charles Lucas, a competing attorney. During a heated argument in court in 1817, Benton felt that Lucas had slighted him. Infuriated, he challenged Lucas to a duel, and the two met on Bloody Island near St Louis. Luckily the duel ended without any serious injuries to either, but Benton was not satisfied and asked for another duel. In the second duel, Benton killed Lucas with a gunshot that pierced his heart.
There are countless jokes on lawyers. An incident that took place in 1993 in California, US, suggests how lawyers are perceived and how scared they are of jokes about them. A distraught former client appeared at a San Francisco law firm of Petit and Martin and shot all those who were to be seen there. In a few minutes, nine people, including the shooter, were dead. A number of those shot, happened to be lawyers. About a week after the horrid incident, then president of the State Bar of California Harvey Saferstein called a news conference and requested the public to stop cracking lawyer jokes: ‘There is (p.340) a point at which jokes and humour are acceptable and a point at which they become nothing more than hate speech … [I call on] all Americans to stop the lawyer-bashing that has been going on, particularly by national, commercial sponsors that sometimes can ignite violence and aggression toward lawyers.’84
In Australia also, they are portrayed in similar colours. Former Labour Queensland Attorney General Dean Macmillan Wells, said that they were developing a ‘legal-warrior caste’, and added, ‘The Wall Street sue-litigate-liquidate-terminate mentality is just not forward thinking; these black letter lawyers are the only professional group who are licensed to inflict pain-hip-pocket pain on other people’.85
Still, legal profession survives and the number of litigation keeps on rising. But it does not mean that people are getting justice, and so they are flocking to courts. What do the people do if they are left with no option? Crime is another option, and the growth of terrorism bears testimony to the fact that justice is the rarest of rare commodity. Injustice provides mother’s milk to terrorism. The question arises: are lawyers required?
Utter Failure of the Bar Council
The Advocates Act, 1961 created an autonomous regulator—Bar Council at the national level (BCI) and SBC for each state. First, advocates elect members of the SBC, who in turn elect one member from each state for the BCI. Before the promulgation of this act, the high court in each state was vested with the disciplinary jurisdiction over advocates. Now, SBC is empowered to take disciplinary action against any advocate for misconduct, and can suspend or even cancel one’s license. The BCI is the appellate authority against the decisions of the SBC, and the Supreme Court is the final appellate court. However, the experience shows that the regulator has miserably failed to ensure that lawyers observe the ethics formulated by it. Thousands of complaints are pending against advocates regarding their misconduct, but hardly any action is taken. These complaints are only a small fraction of incidents of actual misconduct, as most clients misled or hoodwinked by their lawyers, tolerate complaisantly and hardly complain. If all cases of misconduct are reported and the regulator sincerely acts on them, more than half of the practicing advocates will be struck off the roll. Unfortunately, the Bar Council (p.341) prefers to keep its eyes shut as it is an elected body and does not want to antagonize lawyers who are the voters. On December 2010, Rajendra Rana, member, BCI, was arrested by the CBI for allegedly accepting graft in lieu of granting recognition to a Ghaziabad-based private law college. Lawyers of Delhi immediately swung into action and stayed away from work in protest against the ‘high-handedness’ of the CBI.86
The Law Commission of India undertook an exercise to find effective regulatory mechanism to save litigants from trouble due to unruly conduct of lawyers who proceed to strikes at the drop of a hat. The Commission undertook the study of the Advocates Act, 1961, when the Supreme Court in Mahipal Singh Rana v. State of UP87 asked it to go into all relevant aspects relating to legal profession in consultation with all concerned, and send their comments not later than 31 August 2016. The Court lamented that despite direction of the high court as long back as more than 10 years, no action was taken by the Bar Council, and so, it was exercising it appellate jurisdiction under the Advocates Act, 1961, in view of the failure of the statutory obligation of the Bar Council of the state of Uttar Pradesh as well as the BCI in case of proved misconduct of an advocate who was found guilty of threatening a civil judge. It stressed on the need to overhaul the Advocates Act to restore people’s faith in the regulatory body. The Court suspended the license of appellant Rana for five years.
However, it is also true that the apex court took such a drastic step only because it involved a judge. Though lawyers need severe disciplining, it is also true that many a time, the higher courts initiate disciplinary action against lawyers. In 2016, the Madras High Court introduced crucial changes to Section 34 of the Advocates Act arrogating to itself powers of the Bar Council, penalizing lawyers for attempting to ‘browbeat’ judges, or giving complaints to superiors about them. It bequeathed the power to the court to debar a lawyer from legal practice lifelong and debar them as an interim measure even before inquiry.88 It was an administrative order which was put in abeyance after the intervention of the BCI.
Though Section 34 gives certain powers to courts, it does not go to the extent of debarring lawyers from legal practice which is the exclusive domain of the Bar Council. Section 49(1)(c) read: ‘An advocate … shall not be servile and whenever there is proper ground for serious complaint (p.342) against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities.’ So reporting the misconduct of a judge to the superior authorities is not browbeating, rather, it is his duty. More so, lawyers are the only ones who observe the functioning of the court closely and constantly, and so, in a position to know the truth. Moreover, an honest and forthright lawyer may blurt out the truth without pulling punches to the disliking of the judge who may take it as browbeating. The order of the high court is also in sharp conflict with the United Nations ‘Basic Principles on the Role of Lawyers’ which lay down certain minimum guarantees for the functioning of lawyers.
However, it is also a sad fact that lawyers brazen it out in matters of professional ethics. The SBC, as well as the BCI, is enjoined under Sections 6(1) and 7(1) of the Advocates Act ‘to conduct seminars and organize talks on legal topics by eminent jurists and publish journals and papers of legal interest’. But the regulator has totally abdicated its duty of maintaining the academic brilliance of the bar and seldom organizes any seminar on issues relating to the administration of justice as its priorities are different. Such activities would have definitely helped contain the rot in the profession as participants share their experience and offer suggestions to repristinate the glory of the profession.
Right of Defence
The success or brilliance of a lawyer is measured in terms of his/her capacity to win the weakest case or get acquitted the most notorious criminal. S/he can defend the most abominable crime on the ground that everyone has a right to defence in an adversarial system, and that a lawyer knows nothing about the crime personally and his/her knowledge of a case is based on documents. Describing England of the fourteenth century, G.M. Trevelyan writes how lawyers saved criminals:
In most of the counties of England the King’s writ ran, though it was often evaded or defied. Murderers and thieves, when not in service of some great lord, were often obliged to fly to the greenwood, or to take sanctuary and then forswear the realm. Sometimes they were actually arrested and brought into court. Even then they slipped through the meshes of law by pleading their ‘clergy’ or by some other lawyer’s trick.89 (p.343)
However, the right to defence does not mean that a lawyer must accept a brief even if he is convinced that his client has committed the crime. Professionally, a lawyer should never ask the client whether he has actually committed the crime because if he confesses to his guilt then the lawyer should advise him to plead guilty or else refuse his case. After hearing from the horse’s mouth about the commission of the offence, he will not be able to do justice either to the client or to himself and assist the court in arriving at justice as the officer of the court. The then CJI Harilal J. Kania, defined the role of lawyer in these words:
One of the main objects of the (Bar) Association is to maintain a high standard of professional conduct. In my opinion, that conduct consists in following three cardinal principles, viz., (1) Be true to yourself; (2) Be true to your client; and (3) Be true to the Court…. After collecting all the material and relevant facts from your client you must remember that while in the conduct of a litigation you are the mouthpiece of the client, no one has a right to ask you to do a thing which is wrong in law. No law in the technical or the moral sense of the word compels you to act against your conscience…. You owe a duty to the Court to put the facts correctly and honestly and not with a view to misguide or mislead…. Never try to mislead the Court by propounding a proposition of law, which you know is wrong. It is your duty to help the Court in arriving at a just conclusion according to the law of the land. Lack of appreciation of this code has been more frequently noticed recently.90
If in 1949, Justice Kania felt that professional ethics were being violated frequently, one can imagine the state of affairs at present with abject degeneration in moral values all around. Even M.K. Gandhi felt that lawyers are not interested in conciliation; rather they provoke litigation. According to him, a true lawyer is one who puts truth and service in the first place. Albert P. Blaustein and co-authors have described the American lawyer like this, ‘He (lawyer) has been unhappily described as one who gets other two men to strip for a fight and then takes their clothes. And the cause he serves with such diligence is constantly met with carping criticism and complaint.’91 In the US, lawyers contributed their skill and might to continue the barbaric system of discrimination against African-Americans. In the southern states, leaders of the White community would intimidate, persecute, and publicly hang innocent African-Americans. However, there was no dearth of advocates (p.344) who were ever ready to defend such abominable and racist acts they sincerely believed in the superiority of the Whites.
Lawyers use technicalities as a ruse to defend the most dreaded criminals knowing full well that their clients are guilty and mislead the court. Like the orators of ancient Greece, as mentioned above, most defence lawyers vouch for the innocence of their clients and use their ratiocinative faculty to falsify the truth. Trollope presents a quaint picture of the techniques used by lawyers:
To turn a witness to good account, he must be badgered this way and that till he is nearly mad; he must be made a laughing-stock for the court; his very truths must be turned into falsehoods, so that he may be falsely shamed; he must be accused of all manner of villainy, threatened with all manner of punishment; he must be made to feel that he has no friend near him, that the world is all against him; he must be confounded till he forget his right hand from his left, till his mind be turned into chaos, and his heart into water; and then let him give his evidence. What will fall from his lips when in this wretched collapse must be of special value, for the best talents of practised forensic heroes are daily used to bring it about; and no member of the Humane Society interferes to protect the wretch. Some sorts of torture are as it were tacitly allowed even among humane people. Eels are skinned alive, and witnesses are sacrificed, and no one’s blood curdles at the sight, no soft heart is sickened at the cruelty.92
The question is, can a lawyer refuse to defend an accused or a defendant? Though bar associations cannot pass any resolutions asking their members not to take up cases of certain classes of accused like those charged with terrorism or rape, and so on, individual lawyers, in my opinion, can definitely refuse to accept the brief if s/he is convinced that the client (accused/defendant/petitioner) should not be defended. It is argued that everyone is innocent until proved guilty, and that everyone should be given the benefit of doubt, and so must be defended. Lawyers argue that refusing to defend someone amounts to pre-judging. Fali S. Nariman invited international animadversion when he accepted to work as the lead advocate for UCC in the civil litigation arising out of the Bhopal gas tragedy. Pauline Comeau made a swingeing indictment of Nariman: They were once human rights activists. Now, no one is really sure.
Highly respected Indian lawyer and human rights activist Fali Nariman, accepted the job as lead counsel for union Carbide in the case against the (p.345) Indian government over the 1984 Bhopal incident in which 2,500 people died (according to government figures) and almost 200,00 disabled. The case was characterized by endless delaying tactics introduced by the company, and ended with what many described as an inadequate $ 470 million settlement.
Nariman continues to serve as an executive committee member of the ICJ.
Examples such as Nariman … are troublesome, some say, because they continue to be players in both worlds.
When asked, these activists argue that they have done nothing wrong in taking up their new positions. Friends say Nariman argues that lawyers have the right to represent any client, a view shared by another ICJ executive: ‘It’s not like he is doing anything evil’.
Others disagree, human rights activists have a degree of credibility bestowed on them once they are recognized as part of the human rights community, says Dias (Clarence Dias). Such respectability comes with responsibilities and is a much sought-after commodity that must be guarded.
For example, Nariman’s hiring allowed Union carbide to cash in on the lawyer’s human rights credentials. This in turn lent an aura of respectability to court proceedings and gave the impression that crass legal antics would not play a part in the outcome. In fact, repeated attempts to delay proceedings were key elements of carbide’s court-room strategy.
Dias says the human rights community should push for an international code of ethics that would govern the conduct of human rights lawyers as one way of responding to the issue.93
Nariman, in his reply, proffered the same hackneyed argument that lawyers cannot pre-judge guilt:
It precludes the person charged with infringing the human rights of another (such as one accused of murder) the right to be defended by a ‘lawyer of his choice’—in my country, a guaranteed constitutional right. Even if a human rights lawyer were to take the risk of pre-judging guilt, how would he do it? By reading newspaper reports? By conducting a mini trial of his own? Judging guilt or innocence is a difficult business. The case arising out of the assassination of Mrs. Indira Gandhi is an instance in point: three persons were accused of conspiracy to murder and put on trial; the public were convinced that they were as guilty as hell…. All the three were convicted by the trial court and sentenced to death. The high court … upheld the conviction and sentence. But, on further appeal to the Supreme Court, the judges there found no evidence (p.346) worth the name against one of the accused (Balbir Singh)—and he was acquitted! Would you have characterized your lawyer-cum-human-rights-activist as ‘violator’ if he had taken up Balbir Singh’s case from the start?94
Nariman very ingeniously gives the example of Balbir Singh who was acquitted. Of course, the acquittal by the apex court should testify to his innocence. It is no body’s brief that a person accused of murder or any other heinous crime should never be defended. Sometimes, doubts persist even after the Supreme Court pronounces someone guilty, as happened with Kehar Singh, another accused in Indira Gandhi’s assassination case. Many jurists and eminent persons condemned the execution of Kehar Singh as a case of judicial assassination. Seervai critiqued the judgment:
The case against Kehar Singh was based on circumstantial evidence, and in Palvinder Kaur the law governing cases of circumstantial evidence was laid down by 3 judges of our Sup. Ct., and reaffirmed in a number of Sup. Ct. decisions. On the law so laid down, Kehar Singh would have had to be acquitted. The judgments of the three judges show that they were obviously unaware of these Sup. Ct. decisions which decisions (sic) were binding on them.95
Veteran socialist leader Minoo Masani wrote: ‘I refer to the execution of Satwant Singh and Kehar Singh, the first of whom was undoubtedly guilty of murder and the second was just as clearly innocent. Kehar Singh’s execution amounts to judicial murder, since it is based on a miscarriage of justice on the part of the courts of law’.96
V.M. Tarkunde, a former judge of the Bombay High Court and human rights activist commented, ‘the evidence against him was so meagre that it would not support, as the saying goes, the hanging of even a dog’.97
Going by Nariman’s argument, the lawyers who defended Satwant Singh and Kehar Singh in this case defended murderers as their convictions were upheld by the Supreme Court! So will be true of other cases in which the accused is finally convicted. Lawyers do not and should not pre-judge, but if s/he is convinced about the guilt of the accused then s/he is free to refuse to work for one. Not only Balbir Singh, but there are countless such cases also in which even the final pronouncements by the Supreme Court failed to dispel (p.347) doubts. One such case is that of Devender Pal Singh Bhullar for carrying out a terror attack in Delhi in 1993 in which nine bystanders were killed and Congress leader Maninderjeet Singh Bitta was grievously injured. The trial court sentenced him to death and the High Court upheld it. A three-judge bench of the Supreme Court also confirmed it but gave a fractured decision. While Arijit Pasayat and B.N. Agrawal, JJ, upheld the capital punishment, the presiding judge, Justice M.B. Shah, gave his dissent and acquitted him on the ground that the prosecution case depended solely on the confessional statement.98 The review petition was also rejected by the same bench with Justice Shah dissenting.99
Therefore, one can always surmise whether the claims of the client are true or not. Certain grandiloquent principle should not be used as a casuistry to defend an abominable act in the name of the right to defence. Nariman himself refused to work as the amicus curiae in the Delhi High Court in an appeal against a single judge bench of the same court upholding the order of the CIC that judges of the Supreme Court should declare their assets.100 He said that he was biased as he was of the firm opinion that judges should make a public declaration of their assets, and so, could not be a friend of the court. Why was he biased? Did he not pre-judge when he refused to assist the court as the amicus curiae? No. He was within his rights to do so, but it contradicts the ratiocination put forward by him in defence of UCC. Moreover, so far as having the counsel of one’s choice is concerned, it is already restricted—even though it is a constitutional right—because of the exorbitant fee structure of lawyers. In how many cases would Nariman sacrifice his fees? He has himself admitted how lawyers use their acumen and extract huge money:
The 1961 (Advocates) Act was enacted at a time when, following the British pattern, the role of the Indian lawyer was conceived as that of an adversarial combatant in court, with the judge sitting as umpire, upholding the scales even. The judge never descended into the dust of conflict to sort things out; he only decided which lawyer performed better. For more years than I can imagine, we have been using our skills not in a profession but in a game, in which the more skillful (which also tends to become the more costly) will invariably win! In India, we have perfected a poor substitute for what the great legal (p.348) theorist Dean Roscoe Pound described as the ‘sporting theory of justice’, the basic premise of which is that ‘truth will prevail in the clash of zealous adversaries’. In the new millennium, we must leave behind as a relic of the past this ‘sporting theory of justice’.101
While defending the UCC, was Nariman using his skill in a game and charging huge fees? Lawyers must not forget the advice that Abraham Lincoln gave to one of his law practice clients:
Yes, we can doubtless gain your case for you; we can set a whole neighbourhood at loggerheads; we can distress a widowed mother and her six fatherless children and thereby get you six hundred dollars to which you seem to have a legal claim, but which rightfully belongs, it appears to me, as much to the woman and her children as it does to you. You must remember that some things legally right are not morally right. We shall not take your case, but will give you a little advice for which we will charge you nothing. You seem to be sprightly energetic man; we would advise you to try your hand at making six hundred dollars in some other way.102
Rape in the Courts
The way defence counsel cross-examines the rape survivor makes her undergo the trauma once again, perhaps more excruciatingly. During the anti-rape campaign in the early 1980s in the wake of the acquittal of two policemen, who were charged with raping a 16-year-old poor tribal girl in the police custody, a slogan was coined: ‘She was raped twice, first by the police, and then by the courts’. She had been branded as a liar as there were no marks of injury on her body. Flavina Agnes has described the trial of the rape of an eight-year-old who lived in a lower class tenement by a neighbour, a 26-year-old man:
During the trial, the child was cross-examined by a reputed criminal lawyer over three court dates, where her parents and she had to travel a distance of two hours each way. The busy lawyer either came late or pleaded his inability to complete the cross-examination as he had other matters to attend to. The court gave in to his request, disregarding the hardship being caused to the family of meagre means. The trial was in the designated Special Court constituted under (p.349) the Protection of Children from Sexual Offences (POCSO) Act, 2012, which stipulates special child-friendly trial procedures.
Throughout her deposition, the child, of a small build, was precariously perched on the ledge of the witness box, so that the presiding judge could see her and listen to her scared and muffled voice….
The Sakshi Guidelines (2004) stipulate that in cases concerning children, the defence lawyer must first submit the question in writing to the judge, and the judge, at his/her discretion, ask only those questions which are relevant to the incident. But these guidelines are seldom followed.103
Eminent criminal advocate Jethmalani, is in the habit of assassinating the character of rape victims. Defending Asaram Bapu, godman (nay conman), accused in a rape case, in the Rajasthan High Court, Jethmalani told the court that the girl who accused the godman of sexual assault was afflicted with a chronic disease which ‘draws a woman to a man’. The People’s Union for Civil Liberties and other groups said that Jethmalani’s assertions violated the law, as stating the sexual history of victims in rape and sexual assault cases was not permitted. ‘Indulging in character assassination of a woman in rape cases, and in this incident involving a minor, shows the low level to which even senior lawyers of Mr. Jethmalani’s stature can stoop in order to influence the court’.104
Illegal for Bar Associations to Pass Resolutions to Not Defend an Accused
However, it is true that it is illegal as well immoral for bar associations to pass any resolution debarring its members from defending a particular individual or class of individuals. In 2006, the Kashmir High Court Bar Association passed a resolution that none of its members should defend those accused in sex-scandal case. The Supreme Court took strong exception to it. Hearing a petition from 13 accused who were seeking transfer of their case outside the state, a bench comprising Justice Y.K. Sabharwal and Justice C.K. Thakker quipped, ‘with this type of resolution, how can proceedings go on in the court in Jammu and Kashmir? You can’t be a law unto yourself’.105 (p.350)
Again, the Supreme Court decried this trend of passing resolutions and held it illegal in A.S. Mohammed Rafi v. State of Tamil Nadu.106 In this case, the Madras High Court, on the basis of the recommendations made by Justice (retd) K.P. Sivasubramaniam, Commission of Inquiry, awarded a compensation of Rs 50,000 to advocate A.S. Mohammed Rafi who was allegedly assaulted by policemen during a clash with them. Both the lawyers and women police constables involved in the fracas had lodged counter criminal cases. The Bar Association of Coimbatore had also passed a resolution that no member of the Coimbatore Bar will defend the accused policemen in the criminal case against them. Not satisfied with the quantum of compensation, Rafi moved the apex court for a higher amount. Though the apex court enhanced the compensation to Rs 1.50 lakh as advised by amicus curiae Altaf Ahmed, it, however, pulled no punches in expressing displeasure at the manner in which the bar associations have been frequently passing resolutions asking advocates not to appear for certain persons. The Court clearly held:
In our opinion, such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.107
The Court gave the example that when the great revolutionary writer, Thomas Paine was jailed and tried for treason in England in 1792 for writing his famous pamphlet ‘The Rights of Man’ in defence of the French Revolution, the great advocate, Thomas Erskine (1750–1823) was briefed to defend him. Erskine, who was holding the office of the attorney general for the Prince of Wales, was warned that if he accepted the brief, he would be dismissed from office. Undeterred, Erskine displayed guts to accept the brief and was dismissed from office. The Court quoted his immortal words:
From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in court where he daily sits to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank (p.351) and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principles of English law make all assumptions, and which commands the very Judge to be his Counsel.108
The Supreme Court further cited the examples of how Indian lawyers defended revolutionaries during the Indian freedom movement and the accused in the Indian National Army (INA) trials. These are resplendent examples which show how gutsy lawyers have been who do not cave in under any pressure. But the examples are not apt as the issue involved defending people who had incurred the wrath of the powers that be because of their revolutionary activities, not inveterate criminals who commit abominable crimes. In the INA trial, Bhoolabhai Desai defended three soldiers—Shanawaz Khan, Gurbaksh Singh Dhillon, and Prem Kumar Sahgal—who were accused of treason against the country during the Second World War. The trial began in October 1945 at Red Fort in Delhi in which Desai was part of the 17 member defence team. But it is wrong to say that Desai defended traitors who betrayed their country. Desai was fired by patriotic zeal, not by mercenary consideration. He did not charge a single farthing from the accused and even bore the expenditure incurred on his journey and stay himself. In fact, Desai was of the view that these soldiers joined hands with Japan in the national interest as they wanted to dismantle the British yoke with help of Japan. Even Jawaharlal Nehru was part of the defence team and one day went to the court in advocate’s robe. It was a symbolic gesture to show that the entire country stood by the accused. It was the pressure of the nationalist leadership that forced the court to exonerate them besides the persuasive arguments of Desai, otherwise they would have been awarded death sentence as happened in cases of treason.
Here the question is whether lawyers should defend criminals if they are convinced about their criminality. However, the court has aptly cited the instances of Neuremberg trial in which the Nazi accused of killing innocent Jews were defended or the legendary American lawyer Clarence Darrow (1857–1930) who defended every accused no matter how abhorrent or loathsome the crime may be. Most American lawyers would refuse to work for such ruthless, repulsive criminals but Darrow accepted the brief on the ground that everyone had a right of defence. By doing so, he earned the sobriquet of ‘Attorney for the Damned’. (p.352)
It is definitely unethical for any bar associations to pass any resolution but individual lawyers can always refuse briefs. N.A. Palkhivala refused to work for the then Prime Minister Indira Gandhi and returned her file when she imposed the internal emergency on 25 June 1975. Palkhivala was her counsel in her election case in the Supreme Court.
There are case studies when a lawyer faces serious dilemma and cannot invoke the doctrine of the right of defence. In January 2001, in Australia, a newspaper reported that a leading Melbourne criminal barrister had been asked to represent suspected war criminal Konrad Kalejs in a hearing to determine whether he should be extradited to Latvia to face prosecution over deaths of tens of thousands of Jews and others during the Second World War. The concerned barrister was a Queens Counsel as well as a civil rights advocate who was also prominent in the Jewish community and well-known for representing a variety of high-profile criminal accused. The barrister was, reportedly, born in Russia; his parents fled to Germany when he was six weeks old and later settled in Israel but again migrated to Australia. In 1997, he was quoted as telling Herald Sun that elderly Jews living in Melbourne would be having sleepless nights knowing Kalejs was walking free in Melbourne.109 Kalejs was 87 at the time of extradition proceedings. He confuted the allegation that he ever served in a death squad in a Latvian war camp where an estimated 20,000 to 30,000 Jews, Gypsies, Red Army Soldiers, and others were executed. However, earlier Kalejs had been deported from the US, Canada, and Britain as he was found to have been involved in war crimes. His defence against extradition was his health problems which included legal blindness, dementia, and prostate cancer. Jewish leaders averred that it was just an alibi to escape extradition and consequently trial, but is often a false pretence. The legal process could easily have dragged on for 18 months, had Kalejs decided to fight it. The question arose: should the barrister defend him, and if so, how might he proceed?110
Defending Justice, Not Clients
Actually, it is assumed in the adversary legal system that a lawyer’s only commitment is to advance the interest of the client with utmost zeal. The reasoning may be that the other side will try to controvert each and every point adduced with searing ferocity and put forth its own arguments with equal (p.353) zeal, unlike the inquisitorial system in which all parties are parties to the inquest. Christine Parker and Adrian Evans have written:
Adversarial advocacy combines the ‘principle of partisanship’ and the ‘principle of non-accountability’. The principle of partisanship means that the lawyer should do all for the client that the client would do for themselves, if the client had the knowledge of the lawyer…. The principle of non-accountability … says that the lawyer is not morally responsible for either the means or the ends of representation, provided both are lawful. If the lawyer was morally responsible, it is said, the lawyer may not be willing to act zealously to represent the client’s interests.
This approach is most clearly justified in the case of trial lawyers, especially criminal defence advocates who must vigorously assert the rights of the accused against the superior power and resources of the state. By corollary, the adversarial advocate approach is least justifiable if applied to a criminal prosecutor who represents the state against the accused. It is well accepted that prosecutors should act as ‘ministers of justice’, pay elaborate attention to fairness and candour and only present to the court those facts that they believe to be well grounded…. Historically, the adversarial advocate approach was essentially liberal, motivating lawyers to pursue client interests primarily against the power of the state. It was dependent on a conception of the rule of law which puts the courts between citizens and against the government, and required lawyers independent of the state and available to help those who want to use the law to challenge or defend themselves against the government. However, the adversarial advocate approach has extended beyond representing client interests against other private interests and in any situation where a lawyer is necessary.111
Lawyers definitely need to be independent of the state so that they are able to withstand pressures when corrupt regimes subvert people’s rights. Lord Brougham’s defence of Queen Caroline before the House of Lords when King George IV was trying to dissolve his marriage with Caroline of Brunswick by alleging that she had committed adultery is referred to as the ideal in defence. George married her in 1795 when he was still the Prince of Wales. They separated after the birth of their only child Princess Charlotte of Wales. Caroline subsequently went to live abroad and it was rumoured that she had a torrid affair with her head servant Bartolomeo Pergami. In 1820, George ascended the throne and Caroline returned and asserted her rights as queen consort of Great Britain and Ireland. George IV wanted divorce, and since it was not possible unless one of the parties was guilty of adultery, the king (p.354) got the Pains and Penalties Bill, 1820 introduced into the Parliament, which, if passed, would declare Caroline to have committed adultery leading to the grant of divorce. It was well known that the king had not been faithful himself. The attorney general for England and Wales, Sir Robert Gifford, led the prosecution case which began on 19 August 1820. Gifford submitted that Caroline and Pergami had lived like lovers for five years since November 1814 and had, in fact, shared a bedroom, and were seen in each other’s presence arm-in-arm, and were heard kissing. He went on to give salacious details that she changed clothes in his presence. The defence began on 3 October with an electrifying speech by Brougham which is considered as one of the most powerful orations ever. Brougham threatened to divulge secrets of George’s own life even if it went against the national interest, if it was the only way to ensure justice for his client:
[A]n advocate, in discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.112
Lawyers have been used in the past to draft unjust laws which they implemented as prosecutors, judges, and even defence counsel, as happened in South Africa during apartheid, the USSR under Stalin, and Nazi Germany. About apartheid in South Africa, David Dyzenhaus, who started his career as a lecturer in law in South Africa and migrated to Canada and settled there, has written how the legal fraternity comprising lawyers, judges, and law academics subverted the rule of law:
[T]he courtroom is a ‘political theatre’ but that does not make it the ‘theatre of politics’. There is a distinction between law and politics, which is the distinction we have already encountered between the state and government, or the state as an ideal and the state in practice. At the moment that a court accepts jurisdiction over a controversy between government and an individual, government is demoted—it loses its claim to be the exclusive representative of the state. At the same time, the individual is promoted into a public role, to one with an equal claim to represent the state. The court, then, in deciding between (p.355) these claims articulates a vision of what the state is and publicly draws the line between law and politics…. Now South Africa under apartheid was not a functioning democracy, though the courts had a kind of formal independence and were engaged in the reciprocal relationship of legitimacy with political institutions which Kahn describes. The enforced divide between racial groups in the service of white supremacy meant that it was impossible to develop an ‘informal tradition of norms and expectations … around political and legal institutions common to most South Africans.113
However, there was a small section of lawyers, judges, and law teachers who resisted apartheid. Abram Louis Fischer was one such exception who as a lawyer fought against apartheid and defended Nelson Mandela, Walter Sisulu, and 18 other African National Congress leaders who participated in the Defiance Campaign. Born in a prominent Afrikaans family, son of Ulrich Fischer, who became a highly-respected Free State Judge, Bram (as he was popularly called) became a vocal nationalist. He, along with his wife, became member of the Communist Party of South Africa. In 1953, he was banned under the Suppression of Communism Act from most gatherings and from the Congress of Democrats. Subsequently, there were raids on his house and chambers, but it did not affect the flow of briefs coming to him and he enjoyed the reputation of an outstanding counsel. Because of his defence of Mandela and involvement with anti-apartheid activists, on 23 September 1964, he was arrested for contravening the Suppression of Communism Act. He escaped but was recaptured and tried on far more serious charges, including sabotage. He was awarded life term. He paid heavily for his conviction but did everything at his command to uphold the rule of law.
The threats of terrorism, trans-national crime, and tax-evasion put a tremendous pressure on the criminal justice system even in mature democracies as the government has to curb it with an iron hand. Parker and Evans have rightly analysed the dilemma faced by lawyers:
Ethical challenges for lawyers in these situations are numerous. For example, should criminal defence lawyers comply with government requirements that they get security clearances before defending people accused on security-related charges? The ‘torture memos’ emerging from the United States indicate the pressure government and military lawyers were under to come up with ways to justify practices that would otherwise be seen as human rights abuses: for example those which occurred at Iraq’s Abu Ghraib prison, indefinite detention (p.356) in Guantanamo Bay, torture and ‘rendition’ (moving prisoners to countries where they could be tortured).114
Conversation between the Advocate and the Client Is Privileged
It is true that the personal knowledge of the lawyer is privileged which cannot be disclosed, much less used in prosecution. Section 126 of the Indian Evidence Act, 1872, enjoins an advocate not to divulge any communication made to him in the course and for the purpose of his employment as an advocate without the express consent of the client. The contents or condition of any document which he has come to know in course of his professional employment or any advice given are not to be shared by him with anyone. This obligation continues even after his employment has ceased. Further, under Section 127, the same obligation extends to interpreters and clerks or servants of the advocate as well. The BCI has framed rules under Section 49 of the Advocates Act, 1961, which define the standard of professional conduct and etiquette to be observed by lawyers. An advocate is under a statutory duty not to abuse or take advantage of the confidence reposed in him by his client.115 It has also been provided that an advocate shall not commit a breach of obligations imposed by Section 126 of the Indian Evidence Act, 1872, directly or indirectly. The right to privacy has been granted to the client so that s/he may share all information and thought with the advocate freely.
Statutory Right of the Accused
Article 22(1) of the Constitution reads: ‘No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended, by a legal practitioner of his choice’. Section 303, Cr. P.C guarantees such a right. While interpreting Article 20(3) which guarantees the right against self-incrimination, the Supreme Court laid down that the police must inform the accused that he has a right to call a lawyer before answering to any of their questions.116 The Sixth Amendment to the US Constitution provides, ‘In all criminal prosecutions the accused shall enjoy the right … to have the assistance of counsel for his defence’.
M.K. Gandhi practiced as a lawyer for about 20 years before giving it up in order to devote himself heart and soul to the public service. He never took up any false cases. He has written:
I never resorted to untruth in my profession, and that a large part of my legal practice was in the interest of public work, for which I charged nothing beyond out-of-pocket expenses, and these too I sometimes met myself….
As a student, I had heard that the lawyer’s profession was a liar’s profession. But this did not influence me, as I had no intention of earning either position or money by lying.
My principle was put to test many a time in South Africa. Often I knew that my opponents had tutored their witnesses, and if I only encouraged my client or his witnesses to lie, we could win the case. But I always resisted the temptation. I remember only one occasion when, after having won a case, I suspected that my client had deceived me. In my heart of hearts I always wished that I should win only if my client’s case was right….
I warned every new client at the outset that he should not expect me to take up a false case or to coach the witnesses, with the result that I built up such a reputation that no false cases used to come to me. Indeed some of my clients would keep their clean cases for me, and take the doubtful ones elsewhere.
There was one case which proved a severe trial…. The award was entirely in favour of my client, but the arbitrators had inadvertently committed an error in calculation which, however small, was serious, in as much as an entry which ought to have been on the debit side was made on the credit side. The opponents had opposed the award on other grounds. I was junior counsel for my client. When the senior counsel became aware of the error, he was of opinion that our client was not bound to admit it. He was clearly of the opinion that no counsel was bound to admit anything that went against his client’s interest. I said we ought to admit the error.117
Ultimately, the senior counsel refused to argue on the condition that the error must be admitted, but Gandhi agreed only on this condition after the client gave his consent. For him, facts meant truth which he realized while preparing for Sheth Dada Abdulla’s case for which he had gone to South Africa. He has written, ‘facts mean truth, and once we adhere to truth, the law comes to our aid naturally’.118 Truth remained the passion with him and it was the only touchstone on which he tested his duty towards his client and (p.358) the court. J.U. Uppal has written that according to him the greatest wrong a lawyer could commit in the process of law was to be a party to the miscarriage of justice.119
He also promoted reconciliation between the litigating parties giving a damn to the monetary loss—something unimaginable for lawyers! While pursuing Abdulla’s case, he realized that the suit, if allowed to continue, would ruin the plaintiff as well as the defendant who were near relatives and both belonged to the same city. Dada Abdulla had filed a suit against Tyeb Sheth claiming 40,000 pounds which arose out of business transactions and was full of intricacies of accounts. He successfully persuaded both parties to go in for arbitration. The arbitrator ruled in Dada Abdulla’s favour awarding him 37,000 pounds and costs. However, it was impossible for Tyeb Sheth to pay down the whole amount. Gandhi then persuaded Dada Abdulla to allow Tyeb Sheth to pay the money in easy instalments spread over a several years. According to Gandhi:
The lawyer’s fees were so rapidly mounting up that they were enough to devour all the resources of the clients, big merchants as they were. The case occupied so much of their attention that they had no time left for any other work. In the meantime mutual ill-will was steadily increasing. I became disgusted with the profession. As lawyers the counsel of both sides were bound to take up points of law in support of their own clients. I also saw for the first time that the winning party never recovers all the costs incurred … I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby—not even money, certainly not my soul.120
The Law Council of Australia’s Model Rules also makes it clear where an advocate knows that the client, or one of his/her witnesses, has perjured himself/herself, or has tendered evidence that is not true, the lawyer must advise the client that the falsehood must be rectified or else s/he will recuse herself/himself from the case, and seek the client’s permission to inform the court of the correction. If the client refuses to give permission, the lawyer cannot continue to act, even if it means withdrawing representation in the middle of (p.359) the trial.121 However, the same rule prevents the advocate from informing the court of lie or falsification. The rule strikes a balance by allowing the lawyer to preserve client confidentiality and at the same time giving him/her the liberty to withdraw gracefully and not be party to the dishonesty. Model Rule 14.1 states: ‘A practitioner must not knowingly make a misleading statement to a court. A practitioner must take all necessary steps to correct any misleading statement made by the practitioner to the court as soon as possible after that practitioner becomes aware that the statement was misleading’.
No Right to Strike
Lawyers, who wax eloquent about the right of defence, go on strike at the drop of a hat, caring little about their clients. The practice is rampant notwithstanding the pronouncement of the Supreme Court in several cases that under no circumstances they should strike or boycott courts. In Harish Uppal v. Union of India,122 the Supreme Court clearly held that lawyers should never resort to strike or boycott the court. It clarified that on rare occasions when any association of lawyers, including statutory Bar Councils, deem it imperative to call upon advocates to abstain from appearing in courts, it should be left to individual members of that association to be free to appear without fear or hindrance or any other coercive step. The Court further clarified that it would not preclude other forms of protests by practicing lawyers such as wearing of armbands which in no way interrupt or disrupt the court proceedings or adversely affect the interest of the litigant. Any such form of protest shall not however be insulting to the court or to the profession. The Court also said that though the BCI is empowered to penalize advocates for the breach of discipline or ethics, high courts could also frame rules, under Section 34(1) of the Advocates Act, 1961, and take action against lawyers with respect to their conduct before the court. However, this power has hardly been invoked to chasten lawyers who indulge in illegal and unethical activities.
The Supreme Court dealt with the issue in Common Cause v. Union of India123 and ruled that it is unprofessional for a lawyer to go on strike or boycott the court, bar associations should not permit meetings calling for such strikes or boycotts, it is obligatory for the State and National Bar Councils to take actions against striking bar associations and sponsors of boycotts, the courts must hear matters posted before them undeterred by boycotts, and it is (p.360) only in the rarest of rare cases that abstention from the court may be justified, such as dignity, integrity, and independence of the bar and bench, and that must be decided by the presiding judge, and even this should be confined to one day. Such platitudes are repeated in judgments after judgments which remain on paper and observed more in breach. However, so far as the boycott of the court is concerned, it is my personal view that it is justified in the extreme case if the judge concerned is depraved beyond any doubt. The continuation of such a judge sullies the reputation of the institution and shakes the trust of the people.
Lawyers Not Allowed in Some Tribunals
There are certain tribunals where lawyers are not allowed, and the litigating parties appear in person. One of these is senior citizen tribunal, where neglected parents file petitions for ‘maintenance’ from their wards under the maintenance and Welfare of Parents and Senior Citizens Act, 2007. The Act bars lawyers from appearing before it, but the BCI has been strongly pushing for allowing lawyers in it. In the national consultation called by the Union Ministry of Social Justice and Empowerment, NGOs and state governments opposed any tweaking of the law to allow lawyers.124 However, the BCI has still been pushing for it. Lawyers must not be allowed in this tribunal, otherwise it will be another battlefield between family members with no hope for any relief and reconciliation as lawyers will only delay, derail, and despoil.
Role of Lawyers in ADR
Apart from litigation in the court, lawyers also negotiate on behalf of clients outside the court to settle a dispute by way of mediation/conciliation which is a mode of ADR. The question: should lawyers be allowed in the mediation, and if yes, what ethics are they required to follow? Ideally, lawyers should not be allowed in the ADR process, otherwise, ADR loses its very spirit and purpose as the same adversary process is adopted by lawyers. Now the situation has come to such a pass that besides litigating lawyers, there are increasing numbers of lawyers practicing as ADR facilitators, such as mediators, arbitrators, and sometimes even acting as ombudsman. So, now it is said that when lawyers use negotiation to settle disputes, it is not divorced from litigation. (p.361) Marc Galanter has coined the term litigotiation, which means strategic pursuit of a settlement through mobilizing the court process.125 Carrie Menkel Meadow has written that some lawyers (and clients) use ADR processes, such as court-ordered mediation, as ‘just another stop in the “litigotiation” game’, another ‘opportunity for the manipulation of rules, time, information and ultimately, money’.126 One experienced mediation practitioner in Australia has this to write:
Regrettably, many litigators use ADR as an adversarial tool to gain an advantage in the litigation rather than to resolve it. Such parties unashamedly use ADR as a fishing expedition. It can take many forms … a party can use the process to weed out weaknesses in the opponent’s case. It can be used to test the demeanour or frailty of material witnesses or decision makers. It can be used for fact-finding and accumulating undisclosed information that may not have been available through interlocutory processes such as discovery or interrogatories…. It may be used to test an opponent’s susceptibility to admissions or to ascertain how vigorously a point of law will be contested or conceded….
There may be several other reasons why a party would use ADR process for an ulterior purpose. If there is a power imbalance, a financially stronger party may use the process and its accompanying expense for the purpose of draining the funds of a poorer litigant. ADR may be used as a delaying tactic.127
Lawyers are rated by their success in turning the justice system upside down in which the most crooked wins and the most inveterate criminals are acquitted. They forget that as officers of the court, it is their bounden duty to assist in arriving at justice, not to protect the client at the cost of justice and truth. Clients cannot approach a senior advocate directly; s/he can be approached only through an advocate, as a senior advocate represents justice. M.K. Gandhi was the ideal lawyer who always upheld the truth. In the words of Pyarelal, ‘Gandhiji learnt to regard law not as an intellectual legerdemain to (p.362) make black appear white and white black, but as “codified ethics”. The profession of law became to him the means to enthrone justice, not to “entangle justice” in the net of law’.128 But lawyers are known for doing exactly the same as Jonathan Swift lampooned them that lawyers are ‘a society of men … bred up from their youth in the art of proving by words multiplied for the purpose that white is black, and black is white, according as they are paid’.129 Actually, they appear to be in the palm of their clients’ hands and many a time behave life scofflaws. Lawyers prefer to call themselves counsel, which means that they would give truthful and sincere opinion. David Pannick rightly comments:
Barristers prefer to be called counsel. This suggests that they act as a friend or confidant rather than in mere professional capacity. For similar reasons, when appearing in court on behalf of a client …, the barrister is paid a fee for the first day and a refresher (a term which implies a physical necessity for what is, after all, a financial transaction) for each subsequent day. Barristers leave the negotiation of such fees to their clerks, as their office managers like to be known. To explain why they feel obliged to represent rogues and scoundrels, barristers tend to refer to the cab-rank principle. This is serious defamation of the ethics of taxi-drivers.130
Cab-rank principle means that a taxi-driver has to carry the passenger who comes first, irrespective of the distance s/he wants to cover or whether it is short or long. The driver cannot refuse to a short distance passenger that he would take a long ride, otherwise his licence will be cancelled. Lawyers are known for using all the emphasis at their command to derail the course of justice. So, it is said about them that they bang facts when they are strong on facts but weak on law, bang law when they are strong on law but weak on facts, and bang the table when they are weak on both.
Lawyers are not only advocates but also human beings. So, they owe a duty to the society as responsible citizens first, and then a professional duty to the client. The reasoning that in the adversary legal system, an advocate only puts forward the best defence of the client, and the advocate must do for the client what the client would have done for himself/herself is not tenable. According to it, the lawyer’s partisanship does not besmirch his/her character as s/he is not accountable to anyone. (p.363)
Lawyer’s astronomical fee structure is the biggest discrimination against the poor who can hardly afford any lawyer, much less a leading one. This fee structure is in a crying need of being regulated. M.K. Gandhi wrote:
I am strongly of opinion that lawyers and doctors should not be able to charge any fees but they should be paid a certain fixed sum by the state and the public should receive their services free…. The poor will be untaxed but the rich and the poor will have then the same amount of attention and skill. Today the best legal talents and the best medical advice are unobtainable by the poor.131
Lawyers can be social engineers as well as crooks. As social engineers, they have made sterling contribution to the society. They have used their skill and knowledge of law to combat various social maladies, as happened during the freedom movement in India when lawyers fought for the independence of the country as well as against many social ills. Similarly, Civil Rights Era, a golden period in American history, was led by lawyers, like Charles Hamilton Houston, who creatively used their knowledge of law to address the problems of inveterate inequality and discrimination that plagued the American society. Waris Husain has written:
Mr. Houston once said that ‘lawyers are either social engineers or parasites on their society’, and his use of such strong language was an expression of the urgent battle that was taking place for equality at the time. Pakistan’s minorities are experiencing a similar tumultuous period, and the lawyers of the nation include both social engineers and parasites. This is a fact one must remember before they make statements assessing the credibility or ideology of the ‘Lawyers’ or ‘Judiciary’ overall.
Before delving into this analogy, I suggest that a ‘parasite’ is not intended as a derogatory term for the conservative cadre of lawyers in discriminatory societies who wish to maintain the status quo. Nature has provided parasites in almost every ecosystem, and any damage done by the organism isn’t done with malice, but is merely a characteristic of the parasite. Namely, since the parasite feeds off the body it is attached to, political or otherwise, it weakens it from striving and evolving with the environment.
Parasites are especially dangerous for when a political body is undergoing stress, and it can be argued that Pakistan is certainly in such a position. When looked at the pattern discrimination against religious minorities, like Ahmedis and Shias, ethnic minorities like Balochis or Pashtuns, or women, it is clear (p.364) that Pakistan’s political body is in a crisis state. Yet, while such crude injustice takes place violating the central precepts of equality protected by the constitution, there are those lawyers who use the law to continue these discriminatory practices.132
In the USA, lawyers had their roles in aggravating injustices against Blacks. When the Supreme Court ruled in 1876 that African-Americans were to live as equals but separate from Whites, lawyers helped draft Jim Crow laws. Under it, Blacks could not be served food in the same room of a restaurant as Whites, they were required to use separate water fountains and bathrooms, and they could be debarred from serving on a jury or voting. For Roscoe Pound also, lawyers are social engineers and in that role only they would be the problem solvers.133
(1) William Shakespeare, Henry VI, Act IV, Scene 2.
(2) G.M. Trevelyan, English Social History (London: Longmans, 1944), p. 14.
(3) Quoted by Nani A. Palkhivala, ‘The Law and Lawyers’, in We the People (Bombay: Strand Book Stall, 1986), p. 340.
(5) W.T. Stace, ‘The Sophists’, in A Critical History of Greek Philosophy (London: Macmillan and Co. Ltd, 1954), p. 109.
(7) Section 3.
(8) A. Chroust, ‘The Legal Profession in Ancient Athens’, Notre Dame Lawyer, vol. 29, no. 339 (1953–4): 350–8; Stan Ross, The Joke’s on Lawyers (Delhi: Universal law Publishing Co. Pvt. Ltd, First Indian Reprint 2002), p. 16.
(10) ‘ED Attaches Assets of Lawyer, Banker Accused of Laundering’, Times of India, New Delhi, 14 February 2017.
(11) Albert P. Blaustein and Charles O. Porter with Charles T. Duncan, The American Lawyer: A Summary of the Survey of the Legal Profession (Chicago: The University of Chicago Press, 1954), p. 97.
(12) Commonwealth law Bulletin, vol. XIX, no. 2 (April 1993).
(13) Stockton v. Ford (1850), 52 U.S. 232, 247.
(14) 11 Cal. 3d 558.
(15) L.A. No. 30212. Supreme Court of California, 24 May 1974.
(16) 4 Cal. 2d at p. 403.
(17) (1933) 218 Cal. 352, 355 [23 P.2d 273].
(18) ‘Reform of Judicial Administration’, Fourteenth Report, vol. 1, p. 487.
(19) Vol. 1, paras 24, 34–8.
(20) M. H. Hoskot v. State of Maharashtra (1978) 3 SCC 544: AIR (1978) SC 1548.
(21) AIR (1979) SC 1369.
(22) AIR 1979 SC 1369, 1375.
(23) Tahil Ram Issardas Sadarangani v. Ramchand Issardas (1993) Supp 3 SCC 253.
(24) (1995) 1 SCC 732: AIR (1995) SC 691.
(25) Telecast in the programme ‘Tete-a-tete’ on DD News on 19 December 2011.
(26) V.R. Krishna Iyer, ‘Law, Justice and the Bar’, in Law versus Justice (New Delhi: Deep and Deep Publications, 1983), pp. 164–6.
(27) Abel-Smith and Robert Stevens, ‘The Solicitors Consolidate: Status and Monopolies’, in Lawyers and the Courts: A Sociological Study of the English Legal System (London: Heinemann, 1967), p. 187.
(28) M.K. Gandhi, An Autobiography or the Story of My Experiments with Truth (Ahmedabad: Navjivan Publishing House, 2011), p. 375.
(29) Young India, 6 October 1920. M.K. Gandhi, The Law and the Lawyers, complied by S.B. Kher (Ahmedabad: Navjivan Publishing House, 2011), pp. 124–5.
(30) Jawaharlal Nehru, An Autobiography (New Delhi: Penguin Books India, 2004), p. 199.
(31) State of Bihar v. Maharajadhiraj Kameshwar Singh, AIR (1952) SC 252: (1951) SCR 889; Raja Suriyapal Singh v. The State of Uttar Pradesh (1951) SCR 1056.
(32) B. Sen, Six Decades of Law, Politics & Diplomacy: Some Reminiscences and Reflections (New Delhi: Universal Law Publishing Co., 2010), p. 56.
(33) Justice (Retd.) Dalveer Bhandari, judge of the ICJ, The Hague, narrated this story to the author on 3 January 2013 in New Delhi at his residence.
(34) Esha Saha, ‘Senior Counsel Fee: How Much is Too Much’, http://www.livelaw.in/senior-counsel-fee-how-much-is-too-much/ (last accessed on 5 July 2014).
(35) Based on the McLibel’ Case: at first instance- McDonald’s Corporation v. Steel (1997) EWHC QB 366 (Unreported, Bell J, 19 June 1997); on appeal- Steel v. McDonald’s Corporation (1999) ECWA Civ 1144 (Unreported, Pill and may LJJ, Keene J, 31 March 1999); at the European Court of Human Rights—Steel and Morris v. The United Kingdom, no. 68416/01 (2005) ECHR 103 (15 February 2005). Christine Parker and Adrian Evans, Inside Lawyers’ Ethics (New Delhi: Cambridge University Press, 2007), p. 67.
(36) Quoted by Kathy Laster, ‘Language and Law’, in Law as Culture (Delhi: Universal Law Publishing Co. Pvt. Ltd, First Indian Reprint, 2009), p. 244.
(37) David Pannick, ‘Mysticism’, in Judges (New York: Oxford University Press, 1988), pp. 151–2.
(38) Quoted by Tom Bingham, ‘Rule of Law’, http://www.independent.co.uk/arts-entertainment/books/features/the-rule-of-law-by-tom-bingham-1880966.html (last accessed on 14 May 2014).
(39) Quoted in R. Hughes, The Fatal Shore (London: Collins Havill, 1987), p. 419. Michéle M. Asprey, Plain Language for Lawyers (New Delhi: Universal Law Publishing Co., First Indian Reprint 2011), p. 91.
(41) Stan Ross, ‘Technicians, Inhuman, Boring, Pompous’, in The Joke’s on Lawyers, p. 73.
(42) O’Brien v. Sim-Chem Ltd (1980) 1 WLR 734, 737.
(43) Franz Kafka, The Trial (Penguin Modern Classics, 1974), Kindle, pp. 195–6.
(44) Lawrence M. Friedman, Law and Society: An Introduction (Stanford, California: Prentice-Hall Foundations of Modern Sociology Series, Stanford University, 1977), pp. 89–90.
(51) Nani A. Palkhivala, ‘Truth and Service of All’, in We the People, pp. 352–3.
(52) Published by Indian Law Institute, New Delhi, 2011.
(53) R.K. Anand v. Registrar, Delhi High Court (2009) 8 SCC 106.
(54) R.K. Anand v. Registrar, Delhi High Court (2009) 8 SCC 106, para 143.
(55) Times of India, New Delhi, 15 January 2013.
(56) D.C. Appeal No. 40 of 1996, Ram Chandra Jha (ed.), Selected Judgements on Professional Ethics, Vol. 1, Second Edition (New Delhi: Bar Council of India Trust, 2012), p. 425.
(57) Sanjiv Datta, Deputy Secretary, Ministry of Information and Broadcasting, In Re (1995) 3 SCC 619.
(58) U.P. State Tax Service Association v. Taxation Bar Association, Agra (1995) 5 SCC 716.
(59) Vinay Chandra Mishra, In Re (1995) 2 SCC 584.
(60) Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd (1991) 1 SCC 37).
(61) (1997) 7 SCC 147: AIR (1998) SC 283.
(62) (1997) 7 SCC 147: AIR (1998) SC 283, para 16.
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(121) Model Rule 15.1.
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(129) Gulliver’s Travels: A Voyage to the Houyhnhnms (1726) Ch. 5.
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