“If we desire respect for the law, we must first make the law respectable.”
– Louis D. Brandis
The law is not the private property of lawyers, nor is justice the exclusive province of judges and juries. Never mistake law for justice. Justice is an ideal and law is a tool. In its judgment in the case of Mahipal Singh Rana Vs State of UP 2016 SCC 235 the Supreme Court highlighted the “failure” and “inaction” on the part of the Bar Council of India (BCI) and the State Bar Councils to effectively regulate the legal profession. The Bar Council of India is a statutory body established under S (4) of Advocates Act 1961 that regulates the legal practice and legal education in India.
While we speak of the rule of law and our role in ensuring its true practice, there is no denying the fact that very few studious students take up the study of law by choice. Quite often the source is from the residue left after most of the scholars have chosen medicine or any other technical branch/profession. It is very easy to pass a law degree. Should there be an Indian Judicial Service (IJS) constituted on the pattern the Indian Administrative Service (IAS), many bright youngsters would be encouraged to opt for such a service.
Even those unsuccessful ones who join the Bar would be of superior mettle. It is now time for some serious rethinking about the desirability of having an Indian Judicial Service on the pattern of the IAS. It has also been suggested that the Bar Council of India as well as the State Bar Councils must have some non-lawyers as members as provided in other professional bodies. This proposal however may take away the autonomy, independence and transparency of the BCI.
ADVOCATES ACT 1961: One of the main features of the Advocates Act 1961 is the integration of the bar into a single class of legal practitioners known as Advocates with the division of Advocates into Senior Advocates and Advocates based on their experience. The word ‘Bar’ includes not merely the lawyers, but also the Judges. It is from amongst the lawyers that Judges are chosen; and ultimately, it is the quality and timber of lawyers which determines the ability of Judges who adorn the bench. Administration of justice is a joint venture in which the lawyers and Judges are equal participants. It is for this reason that not merely judges but lawyers as well are called “Officers of the Court”. In order to appreciate the true role of the Bar, it is necessary to have a proper perception of the quality of men needed to constitute the Bar. The BCI has noted that it has become necessary for such rules to be framed as the “All India Bar exams introduced on the directions of Supreme Court to improve the standard of the legal profession, has failed to fully achieve its objective as advocates were “practicing law without caring to appear for the exam”.
The rules also state that the certificate of practice granted to enrolled advocates would be valid for five years, after which the certificate will have to be renewed. If an advocate fails to get the certificate renewed, he/she would not be entitled to practice before any court of law, nor would they be allowed to remain members of any bar association. State Bar councils will put up a list of “non-practising advocates”.
PROPOSED AMENDMENTS: A few days ago the Chief Justice of India, S. A Bobde stated that the BCI will be amending the Advocates Act which is to include a clause of “mandatory experience” that new lawyers will need if they wish to practice in the higher courts. It is proposed that a new lawyer should have practiced of atleast two years in a district or taluka court, before practicing in any high court of any state.
The new rules, if formulated, will mean that a new lawyer looking to break into high court practice, will require to possess a certificate which will have to be issued by a senior advocate with atleast 15 years of experience of practice at the bar. The district judge will also certify that that the young lawyer had practiced in a District or a Taluka court for atleast two years.
The BCI further proposes that no High Court Bar Association should grant membership to any young lawyer if they do not produce this mandatory certificate of two years’ experience. Likewise, a lawyer wanting to practice in the Supreme Court should produce an experience certificate from a High Court Bar Association and the high court’s Registrar General. The BCI is also considering whether to call for a rule on a minimum number of “appearances” a lawyer who has practiced in the High Court needs to make, in order to obtain this certificate.
Similar to the medical field, the Bar council is also contemplating to make it compulsory for advocates with 10 years of practice, to undergo ‘continuous legal education’.
IN CONCLUSION: Litigants often complaint of poor quality service from advocates. It is unfair to blame the litigant for the wrong choice of a lawyer since he/she has no part in regulating a lawyers entry into the legal profession and quite often they have no ability to assess the true worth of the lawyer he happens to engage.
It is, therefore, time that prompt steps should be taken to provide superb quality of legal education which affirmatively ensures that every law graduate who joins the Bar is possessed of the requisite minimum expertise necessary to make a lawyer; and before she/he gets entry into the legal profession he must be imparted the requisite minimum training to discharge the duties of a member of the Hon’ble legal profession.
(The writer a social scientist is a practicing senior lawyer)
