Far reaching changes to the structure of the Indian judicial system are being proposed by the government without adequate debate on the broader systemic repercussions of these measures. Read on to know more on whether the autonomy of the Indian legal profession appears to be under threat.
The UPA II government brought a wave of proposals for legal reforms. Key among them are proposals for amendment of the Arbitration and Conciliation Act, 1996, National Litigation Policy, Legal Practitioners (Regulation and Maintaining of Standards in Profession, Protecting Interests of Clients and Promoting the Rule of Law) Act 2010, and Rural Advocate Training Programme. All these reforms relate to the domain of delivery of justice and the position of the stakeholders of the justice delivery system. Let us focus on some aspects of the National Litigation Policy and the Legal Practitioners (Regulation and Maintaining of Standards in Profession, Protecting Interests of Clients and Promoting the Rule of Law) Act 2010 to understand what changes to the structure of the Indian judicial system are being proposed by the government.
A new Regulator for the legal system has been proposed in the Legal Practitioner (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Act,2010. The proposed legislation will bring non-advocate legal services providers (like the tax practitioners, trademark and patent agents, custom clearance agents, and transactional lawyers) within the ambit of professional regulation by establishing a legal services board, it also proposes a consumer panel to represent the interest of the consumer and clients of the legal professionals in a purely research and advisory role; also proposes an ombudsman and grants the Board the function of the regulator of the legal services profession. While there might be and are valid objections to most of the features outlined above, in this article, I focus on the last two (proposal for an ombudsman and super regulation of the legal profession) as they relate to the independence of judiciary— a part of the basic structure of our constitution. Under the current constitutional and statutory scheme, the legal profession is recognised as an institution capable of taking responsibility of governing itself. This is important as the profession acts as the catchment of efficient, knowledgeable, selfmotivated people with high degree of integrity to man the third pillar of our democracy. To advocate that such an institution needs an over-riding regulator headed by a non-practicing lawyer (read a retired judge) appointed by the executive in consultation with the higher judiciary, amounts to questioning the very premise of the nomenclature lawyers as professionals. It seeks to change the status of the profession of law and the privileges attached to it since at least the beginning of the industrial revolution. It is common knowledge that the profession, being one of the oldest, has claims of being autonomous, and which can only be maintained if the activities and judgments of the members of such profession are evaluated only by peers.
The independence of the profession acts as a check on the whims and fancies of individuals who may at times act arbitrarily in the high offices of the judiciary. The proposed regulatory regime renders the control of the legal professionals in the hands of the higher judiciary and the executive. The schemeof Ombudsman provided in the proposed legislation highlights this strain of the proposed reform better. The Ombudsman shall be a judge or a former judge. Though the Ombudsman’s decision on disciplinary issues would not be binding on the State Bar Councils, still if the Bar Council disagrees, the disagreement shall be with justifications and shall be published adequately. Given, that the decisions of the Bar councils are open to judicial scrutiny in any case; one does not understand the justification for an extra layer of supervision. It can only lead to a more direct control of the judiciary and indirectly the appointing executive authority over the profession. The new scheme of things tinkers with the system of checks and balances built into our judicial system. Perhaps this is not the motive, but the end result could be a docile profession and less inconvenience to the powers that be. To strike at the root of the institution of the country, without engendering extensive debate on the proposed changes of course betrays the open society that we seek to create and destroys the spirit of resurrection and the hope of independence.
Another aspect of the proposed regulatory regime is that it brings the clock a full circle in terms of allowing nonlawyers to take up some function of lawyers. Under Section 33 of the Advocates Act, 1961, “Except as otherwise provided in … [the Advocates] Act or in any other law for the time being in force, no person shall … be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate …”. However, subsequent legislations have eroded this monopoly oflawyers as providers of legal service. Various categories of persons, who are not lawyers, have been allowed to practice in specific areas of laws through a variety of legislations. Company secretaries, trade union representatives, consumer rights activists, chartered accountants are but a few examples. Such people have usually been acting as authorised representatives before the administrative and quasijudicial forums. Some categories of professionals brought into the new regulatory fold actually came into existence by recognising that those areas of practice did not justify being reserved for the more expensive advocate community—trademark agents, patent agents and tax practitioners being three examples. Now, when these communities are growing and consumers are facing issues, a new regulatory body is proposed to recognise them as part of the legal profession. The broader question that ought to have been answered first is whether the deregulation of these areas of practice was at the inception, and still continues to be, justified? If yes, the new regulations do not make sense as it does away with the fundamental benefit of deregulation. If no, then a simpler solution would be to merge the varied professional groups into the existing larger group of lawyers. In fact, there is precedence of such consolidation in the Advocates’ Act, 1961, where multiple categories of legal professionals like Vakils and Mukhtars were abolished in favour of a single class of Advocates. The Section 2 (i) of the Advocates Act, 1961 reads: “”legal practitioner” means an advocate [or vakil] of any High Court, a pleader mukhtar or revenue agent”. These issues notwithstanding, the meta issue that I raise here is that the government ought to be responsible enough to bring to the open society all these fundamental ramifications of its draft legislations. Or was nobody thinking?
Need for Ombudsman for Lawyers
“As long as the bill does not muzzle the legal professionals in any way, and ensures the transparency and accountability of the lawyers, the ombudsman proposed is a welcome move. It is important to understand in all such issues, the intent of those who are proposing sucsh a bill. If the intent is noble, to ensure greater transparency and accountability of the legal professionals (which I hope includes the judges) , there is no problem with such Ombudsman.”
Let us now turn our attention to another critical piece of reform which is the National Litigation Policy. Under the policy, the officers of the government need to take responsibility to decide issues themselves and not “let the court decide” of what ought to happen substantively and steer the matters fairly inside and outside court; to not take cover of procedural nooks and crannies and allow the buck to stop (at themselves). The question is if this achievable? Some would even question the desirability of these reforms. Assuming, this reform was desirable, it would indicate that the broader role of bureaucracy would go along the lines of a pro-active committed one. These types of fundamental changes happen through extensive re-education and consistent commitment of the leadership. Do we have these conditions in India as we know it today? At a more mundane level, the National Litigation Policy fails to appreciate is that the government is oftena necessary party caught in the cross-fire of irresponsible litigants. Take for example, tender matters. Most of the time the litigation will continue even if the government acted as a “responsible litigant” as then, the private respondent would challenge the responsible attitude of the government as arbitrary. Same happens in the case of promotion and a large number of other service matters. Same would happen in allotment of natural resources or in tariff petitions. The larger issue therefore, is of enforcing responsibility across the board in litigants— government as well as non-government. The most lasting solution would be a clean government, which is able to evoke a presumption of integrity in its actions (and not corruptibility), which the judiciary largely respects.
The question that one would one confront here is: is this doable given the fundamentally fragmented judicial system in existence today? Here I refer to the tribunals and other quasi judicial forums that have been created to process disputes brought before the judicial system. In order to introduce domain knowledge into judicial decision-making, the number of tribunals has proliferated in recent years. This has also fragmented the bar into specialist bars, leaving a very thin layer of professionals who can cut-across these domains and engage into meta-regulation, which ought to take place at the pinnacle of a judicial system. The unified philosophy of our legal system or the “common law” is simply not getting the chance to evolve in an arena where professionals can test their understanding of the law and fundamental legal tenets that governs the country on a single touchstone. This difficulty is exacerbated by the acute technical view that the superior courts would normally perform a reviewing function. Due to this viewpoint, the superior courts normally refuse to go into questions of fact and have consistently refused to replace its judgments for the judgments of the tribunals. This sometimes leads to multiple rounds of litigation, especially till the tribunals—which are newly established— learn their proper role. Add to this the issue of overlapping jurisdictions and varied consequences of a matter being decided in one tribunal or the other. For example, until recently, a telecom service provider could be settled before a consumer court, a normal civil court, the Telecon Disputes Settlement and Appellate Tribunal, an arbitrator appointed by the Government of Indiaand possibly before criminal courts. In this scenario, is the power of judicial review over tribunals of umpteen kinds capable of keeping the fragmented system on a single track? The National Litigation Policy will bring in another track. It will exclude– from whatever limited public scrutiny is happening today—the government’s actions by keeping the resolution of disputes in-house. The very thought of “consultants” specialising in processing claims in one or the other departments, which one would need to overcome the secrecy of precedents of the government’s “settlement” decisions (unlike the open reporting of the court and tribunal matters) is convulsive. At best, in the process, the discretion will be exercised in favour of those who have similar but multiple claims and are able to manipulate the system. At worst, the discretion will be wrongly exercised and lead to more litigation. In either case, though, the outcome would be in-sourcing of dispute resolution by the government, leading to lack of transparency and a wider, more visible, vibrant and external debate on the functioning of the government. Is this what we are prepared for?
Let us now take the Rural Advocates’ Training Programme. The objective is laudable in itself. Young advocates who are on the panel of the government will be given refresher courses on law and practice in the national law schools and a month’s training with a leading practitioner. Again, this is a measure that demonstrates the government’s frustration with the bar not measuring up to its responsibilities of continually updating the knowledge and skills of its members. The frustration is not unjustified. Nevertheless, what miracle will this measure achieve? Has anybody put a question as to how much knowledge and skill could be imparted in a 20, day intensive academic programme? Has anybody in the government thought on whether the profession has enough seniors who are equipped and willing to provide a structured leaning experience to a trainee? Perhaps not! Going by the feedback ofsome of the professional lectures that I have attended at the bar, the senior bar needs— what the Delhi Bar Association’s programme on continuing legal education very aptly describes— “Learning to Share”. But the broader issue here again is that the government instead of asking the profession to take responsibility for the continuous professional development of its members, has come up with a half baked measure of granting a quality certification of sorts to few persons at the bar who by providence happen to handle government’s cases for a few years. This again undermines the autonomy of the profession, of being one ought to develop its own apprenticeships, examinations and discipline.
It appears that the government is looking to transform the system apprenticeship, examinations, discipline, and the monopoly rights that the members of the legal profession enjoy. The other two issues over which a profession usually claims autonomy are professional education and entry into its fold. Though not discussed here, they also appear to be in the process of being interfered with. Thus, every aspect of the autonomy of the Indian legal profession appears to be under threat from the government. Is it at all possible to have an independent judiciary without an independent legal profession? Is there more to the reforms discussed above that meets the eyes?
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