The Indian Legal System: A Time for Introspection

Mr. K.K. Venugopal

Senior Advocate,

Supreme Court of India

The spirit of law, and the object and goal of any legal system in a civilised society, is the attainment of liberty and equality. It has been rightly said by Lord Acton, in his seminal contribution to libertarian jurisprudence, “the History of Freedom in antiquity”, 1877, that in every age, the progress of liberty and equality has been “beset by its natural enemies, by ignorance and superstition, by lust of conquest and by love of ease, by the strong man’s craving for power, and the poor man’s craving for food”.

These natural enemies are, today, manifesting themselves in every sphere of the Indian legal system creating serious problems of identity and legitimacy and of social justification and social relevance of the whole institution and call out urgently today, the need for introspection by judges, lawyers and academicians : in fact, by all who value India's diverse and rich legal system.

I would like to begin with the component of the Bar and the problems that beset it and which have resulted in the publicly felt perception that after the Independence, the Indian Bar has not been able to fulfil its tryst with destiny.

It would be interesting to note what jean de la Bruyere said in the 18^th century about litigation. He had prophetically warned:

  “avoid law suits beyond all things: they influence your conscience, impair your health and dissipate your property”.

Apparently, even then the problems of the high cost of litigation, the heavy fees charged by the counsel, and the long delays involved were the bane of the litigant public. Not surprisingly, the Devil’s Dictionary defined the “litigant” as a person about to give up his skin in the hope of retaining his bones.

The Report of the Indian Bar Committee headed by Sir Edward Chamier submitted in the year 1924, pursuant to which the Indian bar Council’s Act 1926 was passed, pointed out that the evil of touting had increased due to “the serious over-crowding of the legal profession”. The Report was submitted at a time when there were only a few thousand members in the profession consisting of barristers, vakils attorneys, mukhtiars and revenue agents. Today we have about 400,000 lawyers on the rolls of the different bar Councils in the country. There has been very little effort made to embark on any sociological survey of the legal professions in the country utilising the aid of computers to give us a valid projection of the future of the profession in the year 2000 AD and thereafter.

A pioneering effort in this direction was launched on behalf of the Bar Council of India Trust by Dr. N.R. Madhava Menon, the present Director, National law School of India University in the year 1984. The result of this study, which was confined to the State of Tamil Nadu, exploded many myths. It was found that the profession was not being dominated today, unlike in the past, by the forwards classes. On the other hand, 60 per cent of the members of the profession were drawn from the backward classes. The vast majority of lawyers, practically 70 per cent in strength, were earning, contrary to popular belief, less than Rs.1000 per month. Work was concentrated in the hands of a few lawyers who were at the top of the profession and who commanded very high fees. A good proportion of them had relatives or god fathers in the profession. Very few of the lawyers were doing legal aid work. And finally the self-image of the profession was one of “inefficiency, corruption and overcrowding with little social relevance”.

The strength of the Bar in 1984 when the report was submitted was about 2,40,000 as against the present strength of nearly 400,000 lawyers. This means that about 25,000 lawyers are being added to the rolls every year. We are today the second largest bar in the world after the United States which has a strength of over 800,000 attorneys. Apparently, along with a litigation explosion of unprecedented dimension, we are also having a corresponding explosion in members of the legal fraternity. It therefore becomes important for us to pause and take stock of the direction in which the profession is moving.

The rapid increase in the number of lawyers has not kept pace with the need for legal services. The Tamil Nadu Report has set out the proportion of lawyers to the total population in the country in the United States and the U.K. as against the proportion in India. In 1982 the ratio: In USA was 1:400, in U.K. was 1:800 as against India with 1:3043. With th rapid addition of lawyers to the rolls of the Bar Councils the proportion today in India is 1:2300 which cannot compares favourably with the legal manpower available in the two developed countries. The large rate of increase in the institution of cases in the various courts in the country would demonstrate the need for improving the proportion of lawyers to the total population of country. Then why is there still dissatisfaction amongst the lawyers themselves about their lot and among the litigant public about the services rendered by the legal profession in the country?

Any enquiry in this direction has to commence with the legal education which is being imparted in the country. A large number of law schools are commercially oriented institutions having little regard for turning out lawyers fully equipped to meet the challenges of a career in law. In 1978 there were 270 law schools with 200,000 students. Today the number must be considerably more, viewed from the back-ground of the fact that as against an approximate 10,000 graduates who were joining the profession every year, the figure has risen to about 25,000.

Then comes the issue of the junior bar. The grievance of many junior lawyers is that they are unable to obtain proper training in the Chamber of the senior counsel. The author is of the opinion, that every senior lawyer not only owes a duty to the younger members of the profession to take one or more amongst them as juniors in his chambers, and to impart training to them in law, but also to pay them a minimum compensation for their services. This should be made compulsory by appropriate amendment to the Advocates Act, 1961. This obligation would be owed to the new members joining the Bar not only by the Senior Advocates so designated, but by every counsel who has put in more than 16 years at the bar. The choice of the senior would lie with the new entrant to the profession. The senior would have the right to select two juniors from among those who have applied to him.

The Bar Council of India is authorised by the Advocates Act to constitute a Fund for giving financial assistance by organising welfare schemes for indigent and disabled advocates. The Bar Council evolved a scheme whereby every lawyer enrolled in this country is to contribute a nominal sum of Rs.10 per annum for setting up the Fund. Strangely enough, the lawyers themselves instituted cases all over India challenging this contribution. Along with this the Bar Council of India has also required the members of the legal profession to submit a statement of particulars which would be of immense use a compiling relevant statistics about the profession. Even this was resisted by the members of the Bar. The Supreme Court of India, of course, had no difficulty in rejecting the writ petitions challenging the contribution, and the requirement of furnishing particulars. The welfare fund would protect lawyers when faced with financial distress. It will be difficult for any lawyer to contend that the levy of less than rupee one per month would place an excessive burden on his financial capacity. The contribution which has to be paid once every three years would have been in the region of a crore of rupees, with the present strength of the Bar of 400,000 members. The Fund when administered would provided security to the indigent members of the Bar when faced with adversity.

It may also be pointed out that the State of Kerala had set the ball rolling by passing an Act for setting up a Welfare Fund for old and indigent lawyers by the levy of stamp duty of every Vakalatnama filed in the court. The law Commission of India has made a similar recommendation for all the other States to implement similar schemes through legislation.

If the financial well-being of lawyers is to be looked after by the State or its agencies then there could be no impediment in their functioning as instruments of social change. The Advocates Act, 1961 could equally provide that every lawyer would be bound to do pro bono work in regard to a certain number of cases within his specialisation or within his normal field of practice. The government has not been able to launch Legal Aid permeating to all the corners of the country. A pro bono force of 400,000 lawyers delivering justice to the poor, the needy, and the disadvantaged litigant unable to pay for the services of his lawyer, would be able to fill the gap in the State Legal Aid Schemes. This is the least that the Profession owes to society.

The Law Commission of India in its 128^th Report has commented on the mind boggling fees charged by the Senior Advocates in the Supreme Court. The amounts mentioned by the Report appear to be an exaggerated figure, and does not bear much relationship with reality. It is unconscionable on the part of a lawyer, to extract high fees from a client who is unable or unwilling to pay the stipulated fees. It would likewise be incumbent upon every lawyer to reserve at least a percentage of his time for pro bono work. About 80 of the Senior Advocates practising in the Supreme Court, had agreed to do one miscellaneous case free every week on a mere letter from a client expressing his inability to pay the fees of the Senior Advocate.

A number of Seniors appear regularly without charging fees irrespective of the fact, whether the junior charges his normal fees or not. Perhaps the Rs.5000 said to be charged by a Senior Advocate for appearance in miscellaneous matters is a non issue. Particularly when the case involves a considerable amount of work, the stakes involved often exceed a crore of rupees, the client invoved is a major industrial concern and when the client briefs 3 or 4 solicitors and junior counsel from the High Court and the Supreme Court itself to appear along with the Senior. The proper perspective is therefore to ensure that high fees are not charged from a client who is unable to pay the fees, and in addition thereto that every single Senior Advocate ensures that a percentage of his time is devoted to pro bono work.

The next vexed question is one relating to indiscriminate strikes by lawyers at all levels of Court System in this country. It has been held by a series of judgements of the High Court in the country that the boycott of court by lawyers, even pursuant to a resolution of the Bar Associations, would amount to dereliction of duty [(AIR 1923 Cal 212, ILR 1949 Cal 732, AIR 1924 Rangoon 230 and (1971) 2 Andhra Weekly Reports 901)]. The newspaper report on strikes all over the country make depressing reading. These are not cases of stray aberrations. The reports deal with cases of assault on Magistrates by lawyers, the lock-out of courts by Magistrates, the retaliation by Class III and Class IV employees against lawyers and so on. There was a time when the entire court System in the Union Territory of Delhi stood paralysed along with the Apex Court, the Supreme Court. Access to justice was wholly denied to the litigant public.

The highly publicised outrage committed by some of the lawyers in the High Court of Delhi is still too fresh in our memory to need any repetition. There may be an element of truth in the belief that the Government understands only a show of force. However the closure of Courts through strikes for the purpose of obtaining the redressal of the demands of the Bar is not a weapon which the lawyers should resort to in any circumstance. The Bar Council of India or the Bar Associations concerned should have Monitoring Committees or Liaison Committees which would try to bring about quick settlement of the dispute, and if this fails to pass Resolution for mobilising public opinion, and finally to abstain from Courts for a period of ½ hour or so. Thus at least the Court System would continue to function, access to justice would not be denied to litigants, and at the same time sympathy of the public would also be harnessed by the profession whose credibility would remain high.

Let us first consider as to how the profession can be reorganised within the traditional parameters in which it exists today. Today the litigant is subjected to crushing court fees. When he embarks upon the litigation it is not with any hope of seeing the fruits of his success in the near future, but with the certainty that by the time the case reaches finality through the hierarchy of the Courts, it would be about two decades.

Very often an elderly litigant has no hope whatsoever of being there to reap the fruits of his success. In the highest court in the country, the original parties to the case are no more and are represented on both sides by the legal representatives and in some cases by the legal representatives of their legal representatives. In some High Courts civil cases are pending for as long as 10 to 12 years. In the Supreme Court today a civil appeal would in the normal course be taken up for hearing only after 13 years after its institution.

It would, therefore, seem that a litigant needs raw courage to approach the courts to vindicate his legal right. That is the reason why one very rarely finds a lawyers going to court with his own case even though he may not have to pay for legal services. He would think only in terms of settling the case. But when it comes to a question of his client, settlement is far from his mind. He embarks upon the litigation with the full knowledge that the case would provide him a source of income for at least a few years to come.

It is essential that pre-Trail Settlement should be a part of the professional duty of every lawyer. The moment notices are exchanged between lawyers, it would be their duty to come forward with proposals for settlement. If a settlement is still not reached, the law should provide for the plaint and the written statement both setting out the steps taken by the respective parties for first arriving at a settlement of the case, and as to where the fault lay. Costs would not follow the result, but, on a issue separately framed by the court would decide as to who was responsible for the failure of the negotiation for settlement, and costs, including exemplary costs, would be awarded accordingly. The same procedure would be followed at the stage of appeal and further appeal so that the legal profession would be mentally attuned to its responsibility of bringing about compromises and settlements.

It is this area that the Supreme Court has brought about a new dimension in the dispensation of justice. In recent years a trend has been set where the Court functions as a Court of justice, more than as a mere court of law. Both in exercising jurisdiction under Article 136 of the Constitutions, at the admission stage, and at the stage of final disposal of an appeal, the Court looks at the broad justice of the case on either side, ignoring the technicalities of law and procedure. Very often the Court suggests to counsel that the matter is one for settlement. Gradually the lawyers have adjusted themselves to this new attitude of the court; surprisingly enough, we find that it is possible to bring about a settlement between the parties in a large number of cases. Both the parties, when they find that the lawyers are also thinking on the same wave length, as the Judges, are prepared to forget the animosity arising out of a long course of litigation in the Lower courts and are prepared to see the rationale of the course suggested by the Court.

What is possible at the level of the highest Court in the country, should certainly be possible at the level of the High Courts and the Subordinate Courts it is a question of a new attitude of mind, and a new orientation and approach to litigation on the part of lawyers, which would greatly influence the litigant himself in his approach to his case. But what is necessary is that the profession as a whole should adopt this new approach. A single lawyer by himself may be afraid that his advice would be misconstrued by his client as either that he is more sympathetic to the opposite side, or that he is weak and does not have the ‘fighting spirit.’ It is, therefore, necessary that the Court should take an active part in suggesting to both the lawyers. Soon enough one would find that gradually a change has come about in the pattern of litigation, making a dent in the heavy arrears pending in Courts.

I had said in a paper presented by me about five years back, with a degree of apprehension:

“However, like distant thunder, we start hearing of rumours of corruption, nepotism and favouritism entering the portals of the courtrooms as well. The subject is taboo and like the Chinese monkeys, one does not see, hear or speak of this evil; but if there is a likelihood of this nightmare ever becoming a reality then it is necessary to hunt down the causes and neutralise the same before it becomes a reality.”

During the recent past, the rumours of misconduct including yielding to governmental pressures, political influence and cases of corruption by the Judges of the Higher Courts have been gaining momentum. The judges are insulated from exposures of their wrong doing by reason of the Contempt of the Court Act, 1971. The remedy provided for by the Constitution is impeachment. Impeachment is a cumbersome process. Impeachment under the Constitution has never been resorted to though initial steps were taken in a few cases, but that does not mean that the evil does not exist. A member of the Subordinate Judiciary is subject to disciplinary action for misconduct just as in the case of any other government servant as Articles 311 of the Constitution of India applies to him.

What is absent is a via media as a practical alternative to impeachment. The fact that judges are not different from other human beings in regard to their frailities has been taken judicial notice of by the Supreme Court itself.

Justice Mukerji (as he then was) in the Contempt case filed against Shri Shiv Shankar minister of the then Central Cabinet said:

“On one, much less Judges, can claim infallibility. the power in their hands is great and subject, like all powers, to abuse” (Emphasis added)

In the “Judges Case” Justice E.S. Venkataramiah referred to his learned brethren in the Superior Judiciary of the country as “mere mortals with all the human frailities.” Justice Krishna Iyer said in another case/

“Judges, like Caesar’s wife, must be above suspicion.”

The time has come when we can no more ignore the mounting allegations of reprehensible conduct by the Judges of the Higher Judiciary. To allow this to continue, is to allow the confidence of the litigant public in the judicial system to slowly drain away. No concerned effort has been made to investigate the existence of this malaise. In a highly publicised case, recently, the Constitution Bench of the Supreme Court, in a judgement which will have far-reaching consequences, by a majority of four to one, held the Judge of the high judiciary are not outside the purview of the Prevention of Corruption Act 1988. The court was aware of the conflicting interest at stake, namely, of the accountability and judicial corruption and the need to immunise the Judge from political interference and the use of statutes like the Prevention of Corruption Act as a Damocle’s sword over the Judge impairing his judicial independence.

The Law Commission of India is the body which can rightly elicit opinion from the Bar Associations in the country, the Chief Justices and the Judges of the High Courts themselves about the existence of corruption, nepotism and favouritism in the higher judiciary, and the way to deal with them, I feel that it is incumbent on the Law Commission of India to prepare a questionnaire regarding the existence of this evil and send it to all the Bar Associations in the country, the State Bar Councils, the Bar Council of India and the Judge of the Supreme Court and High Courts for their response. Based on the responses they receive, the law Commission could at least assess the existence of this malaise so that corrective action could be taken.

To sum up, therefore, there is an urgent and long pressing need for introspection and for debate and discussion, for making the entire India legal system more responsive to the needs of the Society and for purging the legal system of the corrupt elements, whether they be corrupt lawyers or corrupt Judges. There is also a great need for restructuring the India Legal System and for cutting down on, and finding remedies to the problems of access to justice, high costs of litigation and the ignorance of the masses in respect of their legal rights.