The Lawyer at the Cross Roads and his Role in the Society in the 1980s

I deem it a privilege to have been asked to be present at the 18th Australian Legal Convention. Coming here as I am from India I feel absolutely at home in this distinguished gathering of the votaries of law. A common tie binds us all in the fraternity of law through, out the world. Although laws differ from land to land and each state has a plethora of them, a common spirit on the whole permeates them for the primary object of law is to subdue antisocial propensities and to provide a shield against the whims and caprices of the individual.
The kinship that is there in the fraternity of law is apparent from the fact that not infrequently cases from the Commonwealth of Australia are cited before us in India. In the great Fundamental Rights Case ¹ relating to the power of Parliament to abridge and extinguish the fundamental rights which was hard by all the 13 Judges of the Supreme Court of India, three of the cases upon which counsel for one party or the other heavily relied were MoCawley v. The King (1920 A C 691) Attorney-General for New South Wales v. Trethowan (1932 A C 526) and The State of Victoria 4. The Commonwealth (45 Australian Law Journal Reports 251) Again, in a case relating to the rights of minorities to establish and administer educational institutions of their choice² which was heard by a Bench of 9 Judges of the Supreme Court, two of the cases upon which considerable reliance was placed were from Australia, namely, James v. The Commonwealth (1936 A C 578) and Adelaide 3o, of Jehovah's Witnesses Inc. v. The Commonwealth (1943-67 Comm L R 116) in a recent case ³ relating to estate duty, three cases, namely, John Lang & Ors. v. Thomas Prout Webb (13 C L R 503), Clifford John Chick & Anr v. Commissioner of stamp Duties (1953 AC 435) and H. R. Munro & Ors. v. Commissioner of Stamp Duties (1934 A C 61), upon which reliance was placed, were from Australia.
The rule of law today, Sir, is being subjected to great strain. A spirit of unrest is manifest everywhere. The established institutions have to face a serious challenge. A wind of iconoclasm sweeps the minds. The gods we worshipped and adored till yesterday are being dethroned from the minds of people one after the other. It is precisely in moments like these that the rule of law acquires added 'importance, for it is the rule of law upon which depends the existence and orderly progress of a stable society. Laws embody a code of conduct and self discipline which a nation speaking through its representatives adopts for itself and enforces through the machinery of the Courts. Man, it has been said, may be a little lower than the angels, but he has not yet shaken off the brute. His passions, his thinking, his body carry their origins with them and he fails, if he vaingloriously denies them. His path is strewn with carnage the murderer lurks always not far beneath, to break out from time to time, peace resolutions to the contrary notwithstanding. Law is no more than the formal expression of the tolerable compromise that we call justice, without which the rule of the tooth and claw must prevail. It has accordingly been said by Learned Hand that despite its inconsistencies, its crudities, its delays and its weaknesses, law still embodies so much of the results of that disposition as we can col. lectively impose. Without it we cannot live; only with it can we insure the future which by right is ours. The best of man's hopes are enmeshed in its success; when it fails they must fail; the measure in which it can reconcile our passions, our wills, our conflicts, is the measure of our opportunity to find ourselves.
In view of the strain to which the rule of law is being subjected, a great responsibility devolves upon men of law and specially the legal profession. There can, in my opinion, be no doubt that in the final analysis law can live not in books but in the consciousness of the legal profession and the attitude of the general mass of people. Judgess dressed with their brief authority may seem to speak more finally but it is only for the moment. Their pronouncements in a great measure reflect the industry and the expositions of law by the counsel appearing before them. 'What counts is the attitude and vigilance of the legal profession, for the bar is not merely the Judge of Judges, it is also the repository of the spirit that gives strength and sustenance to the rule of law and keeps aglow its torch. The contribution of the bar in the great tusk of the moulding and development of law is in no way less than that of the bench—indeed the role of one is complementary to that of the other. It is, therefore, in the fitness of things that the theme of this year's Convention is "The Lawyer at the Crossroads and his Role in the Society in the 1880s." In view of the diverse assaults on the rule of law and the challenge to the legal institutions, the members of the bar may have to play a dynamic role. It may perhaps become necessary for the leading members of the bar to come out of their ivory chambers and take a more active part in public life. The bar, it has been said, has so many organs of expression by which it can make vocal thoughts and sentiments that might otherwise be uncommunicated and hidden. There are the law journals, increasing year by year alike in number and power; there are the bar associations with their committees, their reports, their multiform activities; and now, with developing importance, there are the banquets and luncheons and receptions of these associations. And above all there are the Conventions like the present. Through such media the members of the bar can nourish the rule of law and not merely create an awareness of its vital importance but also ensure its effective functioning.
I am glad that one of the topics discussed at the Convention is "The Role of the Government Lawyer in the Protection of Citizens' Rights." This is a very interesting topic, and I can say that the different facets of this matter have been dealt with in ' some depth. Although, broadly speaking, a Government lawyer has to represent and plead the Government case; he should not adopt a partisan attitude in the sense the counsel of a private citizen might do. It is as much the duty of a, Government lawyer as that of a private citizen's own counsel to see that such a citizen is not subjected to unnecessary harassment and there is no undue encroachment upon his rights.
Legal education which was another topic of discussion in the Convention conveys two concept's. It is a vocational training for legal pracice, it is at the same time a fostering of intellectual discipline with the aim of evolving, a well ordered human society. For a considerable time the leading members of the bar carried the main burden of legal education. The law schools in the process came to be regarded for all intents and purposes as professional institutions. There was subsequently rethinking in the matter, and the view came to be accepted that though a university law school should not exclude vocational aim, it must not restrict itself to be merely a vocational school. "There is often," in the words of Sir Owen Dixon, "a professional protest against the time spent in universities on the theoretical at the expense of the practical There is thus an inversion of functions: the dividing line between the academical and the professional is improperly drawn and the student sometimes loses the one chance he might ever have of learning how philosophical" are the basic principles of the science he is about to apply as an art." The modern trend; emphasises that legal education should be broad based and not confined to merely vocational aims. It should represent a proper amalgamation and synthesis of academic scholarship and professional requirement. The endeavour should be to harmonise the scholastic approach with professional and utilitarian objective. It has been said that education of lawyers should enable them to have some understanding not only of what the law is but how the law is changed. Their vision has consequently to extend to a wider horizon, and they must take note of the popular urges arising out of the inequities of the past. Justice Brandeis once remarked that a lawyer who has not studied economics and sociology is very apt to become a public enemy. With the passage of time our Lady of the law is growing more exacting. When people of my generation joined the Law Faculty many years ago, she was content with very little. The barest rudiments of law sufficed, in the words of Cardozo, "to give to the acolyte of those days the privilege to kiss the hem of her flowing and unspotted robe. But it is otherwise in this year of grace. Our Lady of the Common Law — I say it with the humility that is due from an old and faithful servant — has become insatiable in her demands. Not law alone, but almost every branch of human knowledge, has been brought within her ken, and so within the range of sacrifice exacted of her votaries. Those who would earn her best regards must make their knowledge as deep as the science and as broad and universal as the culture of their day. She will not be satisfied with less."
One wonders sometimes if our brethren of the bar have been banished from the Eden in which they roamed once upon a time care free add unafraid. Perhaps this is so and the reason for that has been the changing situation). We have the confusion caused by accumulated precedents. There is then the problem of law's delays and the backlog of arrears. Again, there is the question of unequal fight, irrespective of merit of case, between the party with ample resources and the indigent in dire need of but without adequate legal aid. The feeling is there that the cost of fighting a case, whatever might be the justice of the matter, is too exorbitant which most citizens can ill-afford to bear. This must necessarily make the average citizen sceptical of the judicial process. If our legal system is to prove effective and retain the faith and confidence of the average man, it must; find an answer to the above mentioned problems. As in life so in law things are not static. Stagnation is the one thing we in law must be wary of. Law, if it is to satisfy human needs and to meet the problems of life, must adapt itself to cope with new situations. It should in no case alienate itself from the facts of life. All this highlights the necessity of judicial reform and calls for a new philosophy of law and a new juristic method to bring order out of chaos. One feels tempted in the above context to refer to the words of Lord Brougham in the British Parliament. Said the noble Lord:
"It was the boast of Augustus that he found Rome of brick and left it of marble. But how much nobler will be our sovereign's boast when he shall have it to say that he found law dear and left it cheap; found it a sealed book, left it a living latter; found it the patrimony of the rich, left it the inheritance of the poor; found it the two edged sword of craft and oppression, left it the staff of honesty land the shield of innocence."
The above words spoken more than a century ago have, if anything, much greater relevance today.
Friends. I once again thank the organisers of the Convention for giving me an opportunity to be present here. I am sure the exchange of ideas here have shed further light on some of the problems which boset the administration of justice. I am also sure that the deliberations of the Convention would help us to devise effective ways and means to tackle those problems.

Author Name: Hon'ble Shri Justice H R Khanna