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Opinion: How to save our Bar and Bench

IyerThomas-ElizabethSheshadri
IyerThomas-ElizabethSheshadri
A quiet but happy revolution is taking place at the Indian Bar, argues Elizabeth Seshadri. But while the lethargic acceptance of the legal system's decay is slowly being shaken off, the pace of change must increase drastically.

As a legal practitioner I was often saddened by the pathetic image of our legal system that was reflected in jurisdiction clauses, where contracting parties agree to invest in India, do business, trade and manufacture in India.

But when it came to jurisdiction or dispute settlement, India was clearly excluded from the choice of legal systems.

For long we have been told by the public, clients and foreign lawyers that our Bar is slow, uncertain and corrupt.

The last straw in my personal experience came from a lawyer friend from Nigeria who kept back-slapping me with his “in India you litigate for 18 years” joke during the International Bar Association’s annual conference. And this happened after India and China were recognised as key financial decision makers in the keynote address of the opening ceremony.

We cannot let our legal system be equated with the archaic visions of snake-charmers and elephant riding rajahs that romantics like to paint about India!

What should we expect of India’s legal system?
Public confidence in the legal system can be measured by the answers to the following questions.

Do people believe that the legal system can:

  • Solve disputes quickly and honestly, provide speedy justice and thus maintain law and order in civil society?
  • Recognise the voiceless citizen like the juvenile, prisoner, mentally ill and poor?
  • Facilitate an environment necessary for economic growth?
  • Prevent absolute power and corruption – be an efficient check and balance in governance?
  • Be a watch dog for this country – as one of the three constitutional limbs of governance?

The challenges of the Indian Bar in the face of these expectations are therefore varied.

Challenge of Image
First, the role of the Bar is not perceived to be central in the legal system and the tendency is to focus on the judiciary as keepers of the legal system, which can provide solutions to problems in court administration, delays, corruption and legal reform.

Second, the Bar has failed to function as a guardian of the legal system and is rather seen to exist to protect the interest of the lawyer community only.

Third, law is being treated merely as yet another lucrative career.

Challenge of Regulation
The public see us as ‘a law unto ourselves’. The blatantly shocking cases – egg pelting of a litigant in the presence of a Division Bench, disrobing a senior counsel in the presence of the First Bench, approaching a judge with a telephone saying the minister wants to talk to you about a certain case – have not been acted upon by the disciplinary bodies.

In many states, the Bar Associations are ruled by ‘numbers’ not ‘wisdom, learning and experience’, resulting in a highly political bar.

They are ruled by loud and half-baked lawyers from spurious law colleges who are not trained to develop respect for the Rule of Law principles and prevent the real Bar members to vote for the right decisions.

The insufficiencies in our professional code of ethics fail to meet the demands of the complexities of today’s profession. Deliberations on issues of ethics are negligent at the Bar.

Often, we indulge in farcical enquiries, secret enquiry reports and silly excuses for inaction against allegations of corruption in our failure to adopt a zero-tolerance-to-corruption attitude.

We do not have a grievance redressal mechanism to deal with Bar and Bench issues. When a judge suffers from too much of ‘Robe-itis’ (as the Americans call it) we have no mechanism to let him know that it is affecting the litigant and adding to the pressures of the justice delivery system.

The result of the lack of a mechanism for a constructive dialogue between the Bar and the Bench is that different Bar Associations call for boycotts of courts as their default method of negotiation.

This has caused irreparable damage to the system.

One of the most serious wrongs committed by the Bar as an organised body is its failure to exercise any supervision of the quality and standards of training given in law colleges.

Rewarding excellence in legal learning and teaching should be strongly encouraged.

Challenge of Quality
First, getting a law degree is one of the easiest things in our country. There are several spurious colleges that do not test for eligibility, do not insist on attendance, have no library or infrastructure and worse, hardly have any teachers.

Second, the Bar does not have an entry level exam to maintain minimum standards of knowledge or ethics in the profession. While the Supreme Court permits filing of cases only by those advocates who have passed the advocates-on-record examination such quality standards are not prescribed by high courts and other courts.

Third, the Bar does not have institutionalised post-qualification learning programs to expose lawyers to new developments in law or the use of technology to improve efficiencies.

Fourth, we do not have a category of lawyers in research and development of legal thought and policy.

Challenge of Diversity
The system recognises only the robed, litigation oriented, judge-dependent lawyers.

The other categories of lawyers such as transactional and business lawyers, in-house corporate counsels, law teachers, public sector lawyers, paralegals, LPO lawyers and legal activists are not recognised.

There are no separate ethical codes for these categories, no regulatory mechanisms, no training facilities.

Fixing it: Create an independent guardian for the legal system
The Government should consider setting up an independent guardian for the legal system like a ‘centre for legal system policy’ to promote research and develop thought on the legal system. This body should be accessible to the consumers of legal services also.

Such a centre could act as the single forum for better and transparent dialogue between the Bar, Bench, academia, policy makers and civil society. The continuous interaction between these groups is essential to tackle the challenges to the legal system.

This centre could also put in place a grievance redressal mechanism for Bar and Bench relations without diluting the self regulatory scheme (the way the UK seems to be going).

Law schools should also consider introducing chairs for promoting thought on the legal system policies.

Fixing it: Constructively engage the Bar in the administration of the legal system
The Bar must assert its central role as the longest-standing existing stakeholder of the legal system. It is our duty and privilege to be engaged in the administration of the legal system.

An immediate area of work is to create a task force of lawyers to deal with the problem of ‘slow justice is no justice’. Plenty of ideas that exist in matters of speeding up processes, court administration and use of technology should be adopted to retain public confidence.

On 24 October the Government released a ‘vision document’ to deal with litigation delays. This document must be studied and commented upon by the Bar to enable corrective action in the right direction.

Fixing it: The Bar needs to re-brand and improve its image
The Bar should consider building a ‘citizens lawyer’ initiative within each Bar Association to encourage lawyers to stay engaged with community needs and movements. Involve young lawyers in such initiatives to raise the consciousness and sensibilities of the Bar.

Perhaps the Bar Association of India could take the initiative to create a ‘policy lawyering wing’ that will function as an informed participant in national policy debates.

There are so many areas where the Bar must guide the Government in formulating appropriate policy such as on issues of space debris, sharing of satellite space, international piracy laws and trade policies.

Fixing it: Create a full-time disciplinary and ethics regulator
The regulatory functions of the Bar need greater visibility for adoption of stringent disciplinary norms and proactive measures, in the absence of which even good lawyers are being touted as ‘hooligans’.

Witness the media's attempts to interpret the Justice Srikrishna Report after the 19 February 2009 police attacks on the Madras High Court campus and ‘mobocracy’ within the Bar. They are a serious threat to our dignity.

The time has come to have a FULL TIME professional regulator to enforce discipline amongst members of our large fraternity, which alone cannot be done part time by busy practitioners.

We need far more elaborate codes of ethics to raise our collective consciousness against unethical practices or violations of professional responsibility.

We must test the law graduate on professional ethics at the stage of entry into the Bar and have periodic assessments thereafter and when migrating from one service category to another.

Fixing it: Regulatory bodies must be led by men of learning and experience
The Bar Councils must diversify their functions and eradicate the politics of numbers.

The executive and disciplinary functions must be made separate from the general council. It must be under full-timers with prescribed minimum years of practice qualification to ensure that these wings are manned or advised by wisdom and experience.

Provision must be made for non-elected advisors, who may not vote, but have a moral authority to guide.

We need a formal client funds protection mechanism. Theft of client’s trust funds should be a concern to the entire lawyer community.

Fixing it: Introduce post-qualification continuous learning
Since the main thrust of the legal profession is learning, there should be opportunities for post-qualification ‘organised learning’.

We must have an academy for lawyers along the lines of the National Judicial Academy to offer focused short duration courses on new developments in law, refresher courses, use of technology to increase efficiencies and more.

Such an academy could then be associated with a 'centre for legal system policy', as discussed above, and may use the infrastructure of existing law colleges or operate as departments of the law colleges.

A certain minimum number of course credits should be made necessary for being designated a senior counsel or being eligible for judgeship, government posts or bar association/councils posts.

Fixing it: Encourage a vibrant democracy within the legal system
Forums like the Committee for Judicial Accountability (COJA); Forum for Independence, Accountability and Transparency in the Legal System (FIAT Legal) and Forum for Judicial Accountability (FJA) that work on legal reform activism should be encouraged.

Demystify the system and play down the contempt of courts act.

Humanise it. Make courts and law offices client friendly.

Demand excellence as the only quality required to practice the legal profession.

Only when we can demand that at the Bar do we enrich ourselves morally to demand it on the Bench.

Fixing it: Recognise and support 'the other' lawyers
Litigation lawyers, transactional lawyers and in-house corporate counsels have different ethical challenges.

We require elaborate model codes of ethics for these categories separately. The transactional lawyer’s ethics committee must also focus on cross border transactions ethics issues and multi-jurisdiction lawyering skill sets.

Diversification of our professional regulation should be considered to handle the different categories of lawyers separately and provide appropriate focus, training, infrastructure and support to each.

The current state of the nation
Energy appears to be building up for legal system reforms.

The voice of positive change is reflected by the Bar constructively engaging itself in the process of judicial appointments and judges being willing to take a stand against a mutually protective ‘brotherhood’.

Law teachers are finally being recognised and better legal education is being imparted to law students. And media is starting to report about the few instances of corruption in the legal system as the civil society seeks better services from its lawyers.

This augurs well for the nation.

But many more good minds are needed to think on these aspects and catalyse the change that we deserve.

Elizabeth Seshadri is a partner at the law firm Iyer & Thomas in Chennai and can be contacted at elizabeth[at]iyerandthomas.com


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