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- By Justice
Sunil Ambwani
Judge,
High Court,
Allahabad
1. In the
North- East Province (later known as United province and now
Uttar Pradesh) a regulation was made in 1802 for appointment of
Vakils and Pleaders in Civil Courts. Legal Practitioners Act,
1879 consolidated laws and regulations governing the lawyers.
The Advocates, Vakils or Attorney of a High Court, Pleader,
Mukhtar or Revenue agents were all brought under the
jurisdiction and on the rolls of the High Court. The High Court
was empowered to make rules regarding their qualifications,
fees, suspension and dismissal.
2. In
Regina Guha (1916) 21 CWN 74 the
Calcutta High Court, and in Sudhangshu Bala Hazara (1922) ILR
1 Patna 104,
the Patna High Court held that women otherwise qualified were
not entitled to be enrolled as Vakil or Pleader. To remove the
doubts Legal Practitioners (Women) Act, 1923 declared that
notwithstanding the Letters Patent of any High Court no woman
shall be disqualified to be enrolled as legal practitioners. The
Allahabad High Court took the lead by enrolling Miss, Cornelia
Sorabji as the first Indian lady Vakil of Allahabad High Court
on August 24, 1921 by a decision of the English Committee
of the Court (as the Administrative Committee was then called),
consisting of Chief Justice Sir Grim Wood Meers.
3. The Chaimier Committee 1924 head
by Sir Edward Chaimier retired Chief Justice of Patna High Court
recommended a single grade or lawyers and to abolish the
distinction between Vakil and Advocate, to name all the
practitioners as Advocates instead of Pleaders, Vakils and
Mukhtars. It also recommended for establishment of Bar Councils.
The Bar Council Act, 1926 established Bar Councils in eight
States including Allahabad w.e.f. 1.6.28 with Advocate General
and 14 members out of which four were to be nominated by High
Court and two could be Judges of the High Court.
4. The All India Bar Committee 1951
with Mr. Justice S.R. Das as its Chairman recommended a unified
national Bar and on the 14th Report of the Law
Commission, the Advocates Act, 1961 was enacted providing for
Bar Council of India and State Bar Councils as autonomous
bodies.
5. Bar Council has made rules
providing for standards of professional conduct and etiquette,
which include duties of Advocates to Court, duty to client, duty
to opponent and duty to colleagues. It also provides duty in
imparting training and duty to render legal aid. The conditions
of practice fall in Chapter III. These are rules of good conduct
on which an Advocate is enrolled.
6. Professional ethics is no
different than morality. It is application of the accepted
standards of right and wrong to the conduct of professional men.
It is not important as to what the profession may be or the
nature of the relations resulting from it. Under all the
circumstances, a person must conduct himself in the accepted
behaviour of good conduct and integrity. A practicing lawyer is
governed by a system of rules, codes of conduct or etiquettes
framed by the Bar Council of his State and Bar Council of India.
All the rules, which are applicable to good behaviour are also
applicable to a lawyer.
7. There is no difference between
personal and professional ethics. The foundation on which the
distinction between right and wrong rests are unaffected by the
choice of man’s occupation. These are in the nature of things,
fixed and immovable. There is no fixed line or boundary between
the permitted and the forbidden. The questions as to how far one
can go and where he has to stop are to be determined, by not our
conscience or moral instincts of individual for these have been
already disregarded, but by intellectual calculation of the
necessities of the situation, and of the risks of exposure and
loss of professional standards, or punishment.
8. These standards of professional
ethics have been the same since the beginning when the counsels
were permitted to appear before the Kings. Mr. K.P. Jayaswal in
‘Manu and Yajnavalkya’, Tagore Law Lectures 1917 (Calcutta 1930)
at wrote (Page 288 para 7) 2 that, ‘Manu VIII, 169, shows that
professional lawyers were already in existence in the time of
Manava Code.’ The source of professional ethics is in the moral
law. The territory lying between the line of strict morality on
one side and the intermediate line without landmarks and
definite description, is the philosophy of professional ethics,
which knows no such line and no such territory. It holds as
common sense affirms. A falsehood is equally false and equally
wrong, whether it is told to advance the interest of those who
are represented or for him, who tells it.
9. A lawyer works as a legal advisor
and a defender of the person, who employs him but while he
interests himself actively in discharge of his professional
duties, he is naturally interested in his clients as
individuals. He looks after his needs and is concerned about the
failure. The sympathy sometimes gives temptation to cross the
line of professional ethics. He often tells himself that he is
not doing it for himself but for others and is only trying to
save his client, whose interest he has taken upon him and seem
to require such action. This is the point at which clear ideas
on the subject of professional ethics becomes important. The
need of the client can never exceed the interests of the society
or in other words the public interest. No argument to save the
client by hook or crook as it is a professional duty, succeeds,
to cross such line.
10. The true measure of the duty of a
lawyer to his clients, so clearly lies in the sense of his
responsibility both towards the society and the Court. The
practice of law is not a private occupation. A lawyer owes his
duty to the Court in which the general public is deeply
interested. The counsels are public officers and appear in
Courts with mandate of good behaviour. The practice of law is
permitted by Bar Council to only those, who are enrolled on good
conduct. The professional conduct towards clients and fellow
lawyers as well as towards society, and his duties towards
Courts, are no different.
11. A lawyer possesses certain powers
and privileges to which others are excluded and consequently
assumes certain duties and obligations towards both the Court
and the client. He is an officer of the Court and representative
of his client. His opportunities for doing good and otherwise
are so many that the codes of conduct, throw safeguards around
him.
12. The argument that a lawyer may
disregard his duty to the Court in the interest of his client,
is stripped of all disguise. It is a gross mistake. He is
expressly bound by his code of conduct both towards court as
well as his client. The high and honourable office of the
counsel, attains him, so long as he acts honourably. Where he
does not, he is degraded, to that of a mercenary, where he is
compelled to do the bidding of his clients against dictates of
his conscience.
13. The dealings between counsel and
his client are also governed by standards of morality and
conduct. A lawyer enjoys confidentiality and trust of his
client. If the client is treated like a victim, his distrust,
consumes the entire profession. Where a client is swindled and
made to pay illegal or excessive fees or charges, and his
counsel does not notice it, or advise him to go such conduct
unnoticed, brings the entire profession to shame.
14. Many a times a counsel blames his
own client, the cunning of the opposite counsel or the Judge.
This conduct again brings the entire profession to
responsibility, including he himself. What is to be done when a
lawyer is engaged to defend a notorious or dangerous criminal or
a corrupt officer. It is true and cherished right given by law
to every individual to a fair and unprejudiced trial, and the
right not to be convicted until competent and satisfactory
evidence is brought on record. These rules, however, are not to
be treated as a shield of the innocent or the guilty of grounds
of acquittal where a person deserves conviction. It is not only
the right but the duty of the advocate to stand guard vigilantly
and courageously over the rights of even a guilty client. This
duty however, ends and does not extend to working up a defence
where there is none, to intimidate and harass the witnesses, to
influence the judge or to act in a forbidden manner. A lawyer
should not forget that the community stands socked by commission
of a crime and if the criminal about whose guilt they have no
doubt, is acquitted and turned loose once more on the society,
puts a question mark on the integrity of the Bar and the
functioning of the Court.
15. The due administration of law is of
greater importance than the result of a particular case or the
success and failure of any individual. A lawyer is as much
guilty of crime if he knowingly sinks his officials duty in what
may seem to be his own or his clients temporary advantage.
Remember when we lower the standards of profession, we harm the
entire society.
16. Law, does not live in the books; it
lives with profession. Judges may speak more finally, but only
for a moment. They learn from Bar which fabricate the social
structure from statutes tailored to the needs of society. The
Bar gives shape and meaning to the words of the statute. The
learning of the Bar reflects in the opinion of a Judge. Law is a
catalyst to social change. It systhesises the change with
stability, bridges the past with the present and makes roads for
the future. Wisely employed, law is organized societies
principle resource for securing public assent and consent of the
governed. The Bar acts as a cradle for the growth of law.
17. The activities of the Government
are now extending in spheres, where it plays a role of
protector, dispenser of social services, industrial manager,
economic controller and an arbitrator. These activities continue
to affect the individual rights and liberties. The dispensation
of administrative justice, through human hands is always fraught
with abuse of power. The rights guaranteed by the Constitution
of India counter balance the vast powers of the Government. The
Bar acts as a sentinel of these rights. The Bar must ensure that
there are no deviations from the norms prescribed by law, also
ensuring that emphasis on certain type of rights do not hold
back the progress of the society and develop few islands of rich
and influential, depriving others with benefits of development.
The Bar has a responsibility of smooth and orderly progress of
the society and to eliminate the causes of tension. The members
of the legal profession are always looked upon as leaders of the
community.
18. In the
words of Holmes, “many an appeal to freedom is a masquerade of
privilege or inequality seeking to entrench itself behind the
catchword of a principle.” No one should be allowed to maneuver
the judicial process. The Bar must see that the remedies in law
do not remain confined with a chosen few, confining legal help
to create economic and social inequities.
19. The entire judicial system is at
trial today. The overburdened and understaffed Courts, outdated
procedures, and the deluge of cases without any assistance from
the tribunals, which are mostly vacant and the others manned by
tired and unspirited people have developed cracks in the system.
The society and the Bar blames the Judges for all the
inadequacies in the system. May I ask, whether with the given
resources and help, that is rendered by the legal profession
today, the Judges can do any better. It is easy to critisize a
decision but then how much assistance is given by the counsels
in deciding the case. Can you expect Judges to give an entirely
just and brilliant judgments without any effective assistance,
hour after hour, day after day, months after months.
20. The members of the legal profession
have to be ready to accept new challenges. At Allahabad we are
not yet exposed to latest developments in laws. We do not have
lawyers trained in sea laws, space laws, cyber laws,
environmental laws and IPR. Very few lawyers are aware of
technological advances made in our country, and the need for the
law to adopt to these changes. New tools are being forged to
deal with arrears and court management. The Courts are changing
its focus from dispute resolution to justice dispensation. The
judicial enforcement of socio economic rights, calls for
representative and distributive justice. How else less than
hundred Judges are to deliver justice to two hundred million
people of the State. The ADR mechanism and public interest
actions will answer the needs for those, who do not have easy
access to Courts.
21. The
members of legal profession must respond to tackle the
increasing crime in society and to break the nexus between crime
and politics. A common man may despair, not the lawyers. A
trained, intelligent and vigilant lawyer can provide an answer
to the evil. The ethics in legal profession can act as a potent
vaccine to the acquired immunity deficiency syndrome, breaking
up the fabric of society.
22. No reform in judicial system is
possible without full cooperation of lawyers and their active
assistance. These reforms should begin with legal education,
interactive sessions between lawyers, training programmes on new
laws, legal methods, court craft and ethics. It is sad to see
lawyers fighting on the streets with police to secure their
dignity and honour. I also feel sad to read statements issued by
lawyers in favour of politicians, political parties and
religious institutions. These methods are used by weak and
disabled people, who do not have power to respond. An
intelligent lawyer with his pen is more effective than thousand
demonstrating on streets.
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