Problems Before the Legal Profession

Presidential Address at the Bombay State Lawyers’ Conference, at Nasik on 31st May 1952.

Brothers of the Bar
Need I say that I am deeply conscious of the honour that you have done me by inviting me to preside over your deliberations? I appreciate it the more because it comes from the bar of my home State with which I have been associated for over 40 years.

Not long ago, I had occasion to inaugurate the proceedings of a Conference of the lawyers of the State of Madras. That State has, true to its reputation of a painstaking thoroughness, organised its Bar in various bodies which have assembled from time to time and from year to year ever since, I think, the year 1920. They are not content with mere periodic or annual gatherings. These periodic gatherings elect representative Standing or Working Committees which function throughout the year and help to deal with problems which require a closer study and which are difficult for a large body to deal with and” also with matters which may arise from time to time and in the interval between the meetings of the larger body. Only, recently when I happened to be in Madras one of these Committees had met to consider the questionnaire issued by the All India Bar Committee. The importance of such small bodies deliberating in committees, acting throughout the year over questions facing the profession, cannot be over-estimated.

I am glad that the lawyers of Bombay have, though perhaps not to the same degree, realised the importance of organising themselves. I believe this Conference had its first session in the year 1931 which was followed by its second session in 1934. Then came a lull lasting several years. It was not till 1951 that the Bombay State Lawyers’ Conference met again. The fact that we are meeting again in 1952 indicates, I hope, a realisation by the lawyers of Bombay of the importance of organisation and concerted action. These annual gatherings where lawyers from all parts of the State meet and exchange their views are no doubt essential. But of equal if not greater importance are a Committee or Committees of this larger body which may function throughout the year doing work not possible to be done in this gathering, studying details of the problems that face us, and making recommendations and submitting reports to the parent body. We can adequately discharge our duties to ourselves and our true function as a body of citizens only if we conduct our activities in an organisation of this character.

I have had occasion previously to dwell on the need of an organisation of the Bar of the whole country. The advent of independence and the recent constitutional changes have done away with many distinctions and divisions and the country, its courts and its bar are steadily assuming a homogeneous pattern. Measures have been taken to examine the feasibility of levelling up the distinctions which at present exist between legal practitioners in different parts of the country, or putting them into one or more common rolls, of forging a uniform standard of eligibility and of forming one or a series of organisations for their regulation and governance. These trends emphasise the necessity of an organisation embracing the whole bar of the country which can speak with authority on behalf of the profession and which can through various constituent smaller bodies, deliberate upon and pronounce its views on questions facing lawyers all over the country not only in regard to the profession but also in regard to the administration of justice, the scheme and pattern of legislation and the liberties of the citizen.

Recently, I believe, there have been some gatherings of the lawyers of the whole country. I am not aware if an organisation of lawyers on an All India basis has been formed. I do trust the question of the formation of an organisation such as I envisage will soon be taken up at inter-State level. Such an organization is, I think, indispensable to a healthy and balanced growth of the profession and essential to enable the profession to play its just role in the development of the nation. It can also render valuable assistance to the proper administration of justice and to the performance of their legislative duties by State Assemblies and Parliament.

In most Federal Unions lawyers have, I believe, organized themselves in this manner. Last year I had the privilege of being invited to a law Convention held at Sydney which was convened by a body called the Legal Council of Australia on the occasion of the Jubilee of the Australian Commonwealth. This is an unofficial and non-statutory body consisting of the representatives of Associations of legal practitioners in the various Australian States and deals with legal questions facing the profession and the Commonwealth. This has been found possible though Australia is a country much larger than ours and a place of long distances. Our country is not only smaller but much more closely knit under our new Constitution. The problems facing us all are very similar if not identical and there is no reason why an organization of the whole Bar of India should not perform most useful functions. A similar unofficial body also exists in the United States in the shape of the American Bar Association. I am not quite aware of the nature of the functions which it performs, but I know that it is a body which represents the practitioners of law of all the Constituent States. I trust that the lawyers of Bombay will ponder over this question. Bombay is known for its enterprise and pioneer work in many fields and it may well give a lead in this matter.

It may be felt that with more representative Bar Councils and an All India Bar Council, which have been suggested, an unofficial organization of the Bar in India would be superfluous. I do not share this view. Even if the anticipations in regard to the entrustment of increased functions to the Bar Councils and the organization of an All India Bar Council come, true it has to be remembered that these Councils can perform only certain statutory functions such as the laying down of proper standards of legal education, the enrolment of members of the bar and the exercise of disciplinary powers over them. These statutory bodies will never be in a position to deal with the numerous questions which may concern either the profession itself or the profession in the discharge of its duties and functions to the public and the country generally. I would therefore, notwithstanding the proposed changes, stress the need of an All India Organization for the Bar.

Let us not forget responsibilities which the Bar must shoulder in regard to the proper working of our free and democratic institutions. The Constitution has recognized certain rights as being fundamental to the citizen and provided for their enforcement. It has by its provisions laid solemn obligations on the legislatures, and prescribed directives of State policy for their guidance. It has enacted various provisions to be resorted to in an emergency within strictly defined limits. The lawyers are, by their very training and tradition, most fitted to keep an ever watchful eye on the working of the Constitution, to detect trends destroying its spirit or negativing its provisions and to help to build up healthy and useful conventions without which no Constitution can grow and adequately function. We have no doubt great duties which we owe to ourselves and as men of a profession which is indispensable to the proper administration of justice. But the duties which fall on us as citizens by reason of our special training and professional status are of equal importance. These duties and responsibilities can be adequately discharged by us only if we organize on a country wide basis.

An independent judiciary is the corner-stone of every stable administration. In a Federal Constitution the judiciary carries a much graver responsibility. Where the Constitution guarantees certain rights and makes them sacred against invasion even by Parliament, there is greater reason to safeguard the independence of the judiciary for, it has frequently to intervene between the citizens and the legislature or the executive in order to safeguard these fundamental rights. Conscious of this difficult and all-important role of the judiciary, our Constitution has made careful and detailed provisions in regard to their selection and the maintenance of their independence. The higher State Judiciary has been made a central responsibility so that it may be above local feeling and local influence. An appointment to the High Court judiciary cannot be made without the concurrence of the head of the judiciary of the land. A Judge is irremoveable except by Parliament on a special vote and on specified charges. His period of office is fixed by reference to his age and may not be extended. He may not, after ceasing to be a Judge, plead or act before any authority in India. An efficient country-wide organization of the Bar would keep an ever vigilant eye on the action of the executive which stands in any manner to affect the independence of the judiciary or its role under the-Constitution.

An organization of the kind I envisage, if efficiently conducted must, I think wield great influence in the country. The united voice of men trained in the law whether it be in reference to legislation by the State or the Union or to the ad ministration of the law by the executive or to the administration of justice or to the judiciary itself cannot fail to mould and give a lead to public opinion and thus be a source of great usefulness to the country. Furthermore an organization of the Kind I have mentioned bringing lawyers all over the country into constant contact and to a discussion of different problems facing different States or the Union is bound not only to weld the lawyers as a body together but act as a cohesive influence throughout the country. For centuries we have been accustomed to think of our village, our community and our district. A centralized administration under the British, the spread of the knowledge of the English language throughout the country and a powerful Press all over the land conducted in that language made us think of our obligations and duties to our motherland. Some of these unifying influences are on the decline. Local and regional patriotisms are again raising their head. A united Indian Bar with an active and vigilant organization applying its mind to all the live problems of the country from the legal and constitutional point of view, would, I am sure, be a great and much needed cementing force.

The number of subjects to which the Conference has devoted its attention in the past is large and varied and touches numerous aspects affecting the profession. It is a matter of satisfaction that some of these questions are now engaging the attention of a Committee appointed by the Central Government.

As you know the Committee has issued a very comprehensive questionnaire and we have received and are in the course of receiving very valuable help in the shape of answers to this questionnaire. In reference to these questions, I will say no more than that some of them are very difficult questions and will require most anxious consideration.

One of the questions which faces lawyers and those concerned with the administration of law is the painfully slow progress of litigation both civil and criminal in various parts of the country and the accumulation of a large mass of arrears. If I am correctly informed, this problem which at one time assumed a large proportion in this State is now under control. Even so, I believe in some Courts in this State there is quite a sizeable volume of arrears. But I know that in the United Provinces, in the City of Calcutta and in other places in the country, the situation has baffled all attempts at solution. I have been told of criminal appeals or Revisions not having reached hearing till after the persons sentenced had completed serving their sentences. Only the other day I argued in the Supreme Court an appeal in a suit, if I recollect it correctly, of the year 1926. This, I think is a stain on the fair name of the administration of justice in this country. It is obvious that if the administration of justice is not to fall into disrepute, this condition of affairs must be quickly and irrevocably remedied.

In the circumstances, naturally there has been a cry for more Judges and these have been provided in some places. But it is felt, and I think rightly felt, that an addition to the number of the judiciary will not by itself be a satisfactory remedy. What can really help is not so much an increase in the number of Judges as an increase in their efficiency, as well as in the efficiency of the Bar. We all know how an efficient Judge can shorten the duration of the proceedings by centering attention in the course of the hearing to the really substantial points in dispute. An efficient bar will respond to these efforts of the competent Judge and the result must need be a much quicker rate of disposal. The problem of arrears is thus to a certain extent the problem of competent Judges and an efficient bar.

But that by no means is the whole picture. There are many who hold the view that the procedure under which our Courts are working is in need of simplification and that it provides too frequent a right of revision and far too many appeals. The progress of a case in the first Court is very often held up by applications for revision to the higher Courts against interlocutory orders. Though it is important that the powers of superintendence by the High Courts be capable of being exercised at all stages of a proceeding, it is, I think, essential that the exercise of these powers be restricted so as not to impede the progress of cases in the Courts below. As to rights of appeal, one knows of cases which have come, up before as many as three or four tribunals before reaching a final decision. So firmly has the inevitable existence of a right of appeal been fixed in the mind of our litigating public that I have on occasions heard the litigant ask, even after a decision of the Supreme Court, as to what Court he could go to next in appeal against that decision and he refused to take in the idea that no further appeal lies. In the working of a legal system the approximation to a correct decision is not, as we all know from our experience, necessarily reached by a multiplicity of Courts or even by a multiplicity of Judges examining the matter. Do we not know matters examined in succession by four tribunals in which each appellate tribunal has reached a decision reversing that of the Court below it? The cynics among the lawyers may perhaps say that a quick decision though not free from doubt as to its correctness serves the interest of justice better than a scientifically accurate decision reached after a lapse of years. I think a large body of opinion must favour a careful yet ruthless weeding out of these rights of revision and appeal. Normally on a question of fact one appeal to an appropriate tribunal should be enough. On questions of law a second appeal may be provided. A further appeal should lie only in exceptional cases. The machinery for the vindication of the law, if it is to be of real use, must function with reasonable despatch. The citizen seeks the assistance of the lawyer and the Courts of law as he does of the medical man or the scientific expert. He wishes to protect himself from an invasion of his rights or to seek a vindication of them. If he is unable to do this in a reasonably expeditious manner, the lawyer and the Courts will come to be regarded by him not as helpful and essential agencies in the administration of the law but as excrescencies and evils to be tolerated and suffered. It is therefore up to us lawyers to raise the question of a suitable reform in legal procedures so that the end above mentioned may be attained. It may be that what I have advocated may mean a narrowing of our activities and lesser opportunities. But I am suite that all right thinking lawyers will agree that that would be an irrelevant consideration. If we are not able to serve the citizens and the State efficiently and in the manner the call of duty requires, much of the reason for our existence would disappear.

I have already referred to the need for the efficiency of the Judiciary and the Bar. These have a close interdependence and the problem of efficiency is really one entire problem. In a certain measure, the fault, undoubtedly lies at the door of our system of legal education. The admission to a law course of students who have not graduated has admittedly weakened the equipment of young lawyer. The efficient lawyer can grow only out of a mind matured by wide knowledge and a far-extending mental horizon. Happily this subject among others will engage the attention of the Committee I have mentioned and it is hoped that it will be possible to suggest measures which will make for a high and uniform standard of legal education throughout the country as a requirement for admission to the Bar. Recent changes and our attempts to promote the growth of Hindi as a national language is another circumstance which will have consequences of a far-reaching character. The knowledge of the English language of the students of the future is bound to be inferior as a result of these changes. Legal education and the proceedings of the higher Courts must for a long time continue to be in the English language. This problem like others needs a careful consideration.

Apart from inferior standards of legal education, there is the question of the young recruit to the profession being trained in the practice of the law. At one time it used to be the practice for juniors to try and get admission to the chambers of senior practitioners where they were trained under experienced eyes in the intricacies of law and in the Code of ethics which governs legal practitioners. Circumstances have led to a virtual disappearance of this practice. The number of new recruits to the profession has so increased that it is difficult for them to find admission into the chambers of experienced lawyers. The struggle for existence and the stress and strain of competition also drive a junior to snatch at such work as he can get long before he has obtained the necessary training to enable him to do justice to it. The inevitable result of these circumstances has been the rise of the new and untrained junior in charge of quite a variety of legal work. Habits of work and presentation of cases once formed are difficult to displace and the untrained junior is unlikely to blossom into a really efficient senior. These and allied problems are, I believe capable of being satisfactorily handled only by local Bar Associations and by the Ears attached to various Courts.

In all countries, members of the Bar have played an important part in public affairs and have rendered service to the nation. That has been so in our country as well. One can easily recall the names of distinguished lawyers who played a vital role in the building up of our nation and the attainment of our freedom. But it is equally true that lawyers today are not in the forefront of public affairs. They have ceased to play that important part which they undoubtedly played at one time even in civic affairs. What is this eclipse of the lawyers, if I may use that expression, due to? One cause undoubtedly is that in all movements of today all over the world the emphasis has changed from the classes to the masses. The lawyers are by reason of their training, habits, and ideas apt to regard themselves as a special class. From that perhaps has sprung a certain sense of isolationism and the result has been that they stand somewhat aloof from currents which are at the moment sweeping the country. This phenomenon merits in my view close consideration at the hands of all organizations of lawyers. We must not forget that we are a body of men whose essential function is to serve the nation. As the nation turns to its trained medical men as scientists to look after its health and scientific growth, so does a nation need lawyers to help in the administration of its justice and in the building up and working of its laws. The lawyers like any other body of servants of the nation, must understand the people’s needs, try to serve them as best as they can in their own sphere and help to solve the people’s problems in the manner lawyers can help to solve them. I feel that in order to be a useful instrument of service to the people, the lawyers must continue to command the trust, the respect and the confidence of the mass of the citizens. The profession must so conduct itself that the ordinary man may regard it as an useful auxiliary for the vindication of his property, and other rights and not as an excrescence imposed upon him by the regulations of Courts. It is only when these conditions are fulfilled that the lawyer can discharge his true function in society. I think that it is up to us to study our changed and rapidly changing environment and adapt ourselves to it so that we may be able to fulfil our true function in the body politic.

Perhaps too often have we been accustomed to think of our rights and privileges and our emoluments and too little of our duties, responsibilities and the efficient discharge of our functions. As far back as 1938, speaking at a gathering of the lawyers of the United Provinces that distinguished lawyer Sir Tej Bahadur Sapru, said, “A high standard of personal rectitude in dealing with your professional brethren has always been the characteristic of the bar in England. That was also— I feel confident in saying so — the characteristic of our own profession a generation ago, but I am not satisfied that in these days we maintain those standards.” That perhaps is true in a greater degree to-day than it was when those words were spoken. It is not only the standard of correctness of conduct in dealing with professional brethren which is believed to have fallen. One feels that there is a fall in standards all round. Is the lawyer of to-day as pains-taking in the preparation of his cases, as up right in his dealings with his clients, as frank and as courteous to the Court and as conscientious in the discharge of his duties as a citizen and taxpayer as his counterpart of a generation ago? There are many who would answer in an emphatic negative. Here again, is a matter for us all to ponder over and remedy. The profession can maintain its status and command the respect essential to playing its proper role in the administration of justice only if we maintain our standards in alt spheres of our activity. If we have slackened and slipped, let us quicken our pace and plant out foot firmly back where it should be.

Gentlemen, you will pardon me if what I have said this afternoon has been mostly of a general character. My contacts through all these years have in a large measure been with the High Courts of Bombay and other States and latterly I have lost touch even with the High Court of our State. I thought that it would not be right forme to speak of matters in relation to which I have had no personal experience.

I thank you gentlemen once again for the privilege you have conferred upon me of presiding over your deliberations.

Author Name: Shri. M C Setalvad