I am glad that the Bar Council of India is holding this seminar and has picked-up subjects which are of concern not only to the members of the Bar but also concerns the society at large. The role of lawyers has to be understood in the context of the society and its priorities.
The first President of our country, Dr. Rajendra Prasad had this to say “………after all the Constitution like a machine is lifeless. It requires life and mind to control it……..” It is here that a really important duty of the lawyers comes into play. The lawyers being the persons who appreciated the Constitution must have a duty imposed upon them by virtue of their study and profession to uphold and see that the Constitution is not flouted. The Constitution, if it is in proper hands may bring in a society free from social and economic injustice. The same Constitution in the hands of other persons can be used also to a emendate liberty, freedom and all those good things which make life worth living.
What is a profession? Dean Roscoue Pound defined profession of law thus : “a group of men pursuing a learned art as a common calling in the spirit of public service – no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose.”
Justice Brandeis (U.S. Supreme Court) applied three criteria to a profession :
“First : A profession is an occupation for which the necessary preliminary training is intellectual in character, involving knowledge and to some extent learning, as distinguished from mere skill.
Second : It is an occupation which is pursued largely for others and not merely for one’s self.
Third : It is an occupation in which the amount of financial returns is not the accepted measure of success.”
The inevitable conclusion from this is which distinguishes profession from the business to trade as follows :
- a duty of public service of which the emolument is a by-product and in which one may achieve pre-eminence without making much money;
- a relationship as an officer of the Court to the administration of justice involving through sincerity, honesty and reliability;
- a high degree of fiduciary relationship to clients,
- a relationship to other members of the Bar marked to the unethical practices to procure more work at their expense.
No man can ever be a truly great lawyer, who is not in every sense of the word, a good man. There is no profession in which moral character is so soon fixed as in that of the law; there is none in which it is subjected to severe scrutiny by the public. It is well that it is so. The things we hold dearest on earth, our fortunes, we confide to the integrity of our legal advocates. The character of lawyers must be not only without a stain but without suspicion.
But there are also other references. Thus, Bernard Shaw in its usually barbed tone said that “all professions are conspiracies against the laity.”
Of course there is nothing to beat in irony the description by Akbar Allahbadi, the great humourist poet, when he said :
“Jab Paida Hua Vakil to Shaitan ne Kaha
Ham bhee Aaj Sahebe’ Aulad ho Gaye”
loosely meaning “that when a lawyer was born, Satan said Lo – I also have now become a parent. That of course was 50-60 years back.
But more understanding, Justice Krishna Iyer has put it well when it says that “law reform includes lawyers reform”. Justice D.A. Desai of the Supreme Court said “it cannot be again said that the profession has fallen in the estimate of the society. It is living in its cherished complacency closing its eyes to its regrettable realities.”
Though, I have stated to put myself (and I emphasise that I consider myself, first a lawyer and then other names) and my other colleagues to remind ourselves of public perception of our profession, we may take some consolation at present of the ameliorating factors mentioned by Justice Krishna Iyer- “Law and Politics are both professions, and sometimes as distant neighbours, sometimes half-brothers. Surely, it is courageous to be frank and own in a mood of self-criticism that moral recession is deflating the liberal professions. If politics has failed society, professions have fared no better.”
But there are stunning examples from past and I have no doubt in the present too. But let me mention commitment to the society and public life as demonstrated by the example of one of the stalwarts of the Bar, Shri C.R. Das of Calcutta. His example is something which gives a sense of pride to us – the members of the Bar, and we can bask in his reflected glory and claim that we are the inheritors of that public spirit prevailing amongst us lawyers. Mr. C.R. Das who was then a very top lawyer was asked by Gandhiji to join the Congress full-time and give up his practice. CR, as he was commonly known, was a very mild mannered, honest person. He was at the top of his profession and earning very substantially. So, in all humility, he told Gandhiji, “Bapu you are always having to run about collecting money for the cause. I earn so much but my expenses are very few. Don’t you think that I will be of greater assistance to you if I could donate all that income to the cause of freedom.” Gandhiji in his sweet enigmatic smile said “Mujhe Paise to bahut mil jayange, Mujhe Das chahiye” meaning thereby that I can collect lots of money but I want a person in the service of the country. CR did not take a minute to say yes and joined the freedom movement and was a beacon light in freedom struggle.
Such was the instance of renunciation, a burning desire for public service on which our generation was fed. Howsoever weak, indifferent, selfish our generation may have been, we could never forget these and many similar instances of dedicated freedom fighters who at the top of profession chose public service against the lure of money. The giving up of practice by top doctors, lawyers and other professionals voluntarily choosing a life of poverty and simplicity, receiving lathi blows without resorting to violence. These were the instances and stories on which our generation grew up. Wily nily, howsoever small minded, selfish we may have been, we could never erase from the memories these self-sacrificing, hero-lawyers of public service. Evidently, they remain, in the worst of us, a small light which would stop us from behaving completely dishonestly or in a shabby manner. So when we grew up, though we were of course not even a pale shadow of these great men but we at least had to feel ashamed within ourselves and amongst our colleagues if we strayed from the standards laid down by our elders. This moral stand continued for quite some time immediately after India became independent. Leaders like Jawaharlal Nehru, Maulana Azad etc. were ideals in public life, looked upto by the younger generation. Beacon light was continued by Jaiprakash Narain, Dr. Lohia who taught us that freedom has no meaning unless in terms of Gandhiji- there is a smile on the face of the poorest of the poor. Selfishness and looking after one’s own self interest is not the only object of living. As a matter of fact, there is always a sense of sin if one was not contributing to the improvement of the conditions of poor masses.
We had instances where Central Ministers like Lal Bahadur Shastri resigned because there was a railway accident. Is it any wonder that our generation was able to retain some kind of moral fulcrum in our life. But to whom does a generation in the age-group of 0-34 which constitute 69% of the population of this country, and from where the future leaders of Bar is to emerge, look up to- and because there is only 7% of the population that is above the age of 60. So the standards have to be set by the kind of politics which is in vogue today rather than in the first decade after 1947. Thus, when they see corruption not only being a disqualification in public life but rather an advantage – they also see that public service which used to work as a bull-wark, has become subservient to the political masters – can you blame the youth if they become cynical.
I am giving these examples to show that we the lawyers sometimes complain that we are not given the status in the political life and governmental powers as we are entitled to. Of course there are a good number of lawyers in seats of powers but we lawyers somehow feel that we should be picked-up because we know the law and therefore, we have a special right to be associated with the running of the society and to receive instinctive respect from it. Strangely, we give examples of top lawyers like Bhulabhai Desai, K.M. Munshi, Motilal Nehru – how they were at top positions but what is forgotten in these instances is that these leaders reached these heights and were willingly accepted by the public as such, not because they were eminent lawyers as undoubtedly they were, but because they were socially committed and involved themselves in the society’s problems and were willing to sacrifice their careers, the prospect of making money and to involve themselves into the pressing problems of the society. How many of us are willing to do that. If our only claim to being recognized by the society is that we are very good lawyers, or we have a very fine knowledge of law, that by itself makes us no different from any other service provider whether he is an excellent car mechanic, a television repairer or a very good tailor. If I am to give my services to a person who pays me, why should I assume arrogantly that I am entitled to a greater respect than I am willing to give it to a tailor because he stitches my clothes very well.
I am reminded of an apt instance – we had a very prominent lawyer in Punjab (Pakistan) who was a contemporary of Chief Justice Mehar Chand Mahajan. In the thirties, he decided to contest an election to the Central Legislative Council. As you know at that time it was a limited franchise, restricted the qualification of property and liberace. One of the voters was a shopkeeper of Amritsar. Mr. Agarwal came to ask for his vote from Lahore and when he went to the shop, the owner was inside, and he sent a message through his employee to tell him to come out as Mr. Agarwal, Advocate had come and wanted to meet him. The employee came back with a message from the owner, that the latter says to please tell the message to his Munim who will convey it to him later on. Mr. Agarwal felt hurt and sent message the second time but received the same reply. Desperate he sent the message again and asked his employee to ask his owner to come for a minute just to see him. When the shopkeeper came out, Mr. Agarwal in a slightly upset manner told him that in spite of his getting the message, he persisted refusing to talk to him. The shopkeeper in a very polite manner told him that quite some time back he had a case in Lahore High Court, and he had gone to engage him and paid him the fees which he had asked for and which was quite substantial but when he wanted to talk to Mr. Agarwal to explain the case, the advocate had said please talk to my clerk. Evidently, the shopkeeper wanted to give the message that courtesy and accommodation is mutual between the client and the advocate. If therefore, I have no commitment in public life and if my heart does not beat for the poor and dispossessed and my only purpose is to make money, it is evident that the society will not give me any respect. Just as anyone does not give respect to any other businessmen or a professional simply because he is making money. I am not suggesting that a lawyer is not to earn because evidently he has family responsibilities. Certainly, the profession of law as it is duly said, does not mean that you do not have to earn but it certainly means that law is a profession and not a business. There are certain noble limitations and inhibitions which a lawyer cannot cross. Earning money by any means is just not permissible. If the contribution to the society is not there, the society will not respect him.
We recognize that there is large injustice in the society. The slum dwellers in Maharashtra, evictions of the poor, slum dwellers resulting in misery of thousands is well documented. If that poor, weak person without a shelter and in danger of losing his livelihood cannot invoke the sympathy of lawyers to come to his rescue against the propertied person, evidently lawyer will not instill that respect even if he happens to be at the top of the profession. I am not suggesting that the lawyers are the villains, that they are the only one not living upto the expectations of our leaders of the freedom movement. No doubt, the cynicism is spreading even outside the Bar – like the Parliament which should normally invoke awe and respect but has become a laughing stock with every day walk outs on the flimsy grounds are routine – but yet the Members still not having the moral courage to not at least accept sitting fees for the days of walk-out. At one time, the public outcry was to make this into a parliamentary decision but unfortunately the Members of Parliament themselves refused to accept this proper and morally sound suggestion.
The stories of the MPs recently disclosed by misuse of their discretionary fund receiving money for asking questions has brought shame to the Parliamentarians, even to the innocent ones. There is thus, an atmosphere in which people necessarily have become more vigilant in judging the character and quality of each profession. The lawyers’ fraternity gathered here must look into this aspect so that the future lawyers must know that there is some benchmark by which they will be judged. As it is the sensitization of the society to correct morals in public life, it is important if we wish the youth to join the mainstream. But the fact that youth unfortunately is more interested in consumerism shows that the message has not sunk.
There is another important matter which needs immediate attention – about the Bar lawyers’ strike. This matter has been debated and is a subject matter of a number of judgements of the Supreme Court that lawyers should not resort to strikes at least without returning the briefs in time so that litigants can arrange for an alternative, because in case of widespread strike by lawyers, the client becomes helpless. I am not suggesting that the lawyers may not have a genuine grievance. They may if they feel even hold demonstrations (though many of my colleagues may not even approve of this but then to abstain from work after having accepted the brief is to punish the innocent victim and involve him in the internal matter of the lawyers’ convenience or the lawyers’ interest.) People are already losing confidence in the Judiciary and let us not forget that the Bar is the other side of the chariot’s wheel and fault in either of the wheel, i.e. Judiciary or Bar will mean that there will be a question mark on the efficiency of administration of justice.
Delayed and expensive justice also strikes at Human Rights, more particularly of those belonging to the underprivileged and vulnerable segments of the society. As on 31st December, 2004, there were almost three crore cases pending in the courts in the country. The pendency of cases in the lower courts is 2,33,19,679 cases : over thirty three lakh cases (33,79,033) are pending in the High Courts and 30,151 cases are pending in the Supreme Court. The disposal of cases has not been able to keep pace with the institution of cases and, therefore, arrears keep mounting.
The consumer of justice wants unpolluted, expeditious and inexpensive justice. He is not interested in knowing the causes for delay in disposal of cases. The delay in disposal of cases is resulting in the citizen getting tempted to take law in his own hands and take recourse to extra judicial methods to settle scores and seek redress of his grievance. Delay in disposal of cases also gives rise to many other aberrations which hit at the basic credibility of the institution. The high regard that people have for the judiciary can turn to dismay when faced with the working of the justice delivery system.
Weakening of the judicial system, in the long run, has necessarily the effect of undermining the foundations of the democratic structure. The primary responsibility for projecting the great image of the courts, however, lies with those who are connected with the functioning of the courts, whether as judges or as lawyers.
Though, I have painted rather an unfavourable picture, but please be assured that I am fully aware of the pivotal role that lawyers play in public life and will continue to do so. I am not denying that Bar is still producing stalwarts in public life and committed to the poor and lawyers giving their best time in the service of the needy and dispossessed. But one must realize that their number is getting smaller and the profession of law which is based on the commitment to public welfare is declining. I hope this seminar will come out with a programme and a determination to see that lawyers again retain their pre-eminence in the society’s estimation which they enjoyed in the past. I am not a pessimist, nor do I under-estimate the commitment, the moral fibre of the majority of our lawyers. I have mentioned these weaknesses because even a smaller number can spoil the reputation like a bad fish in water is a source of impurity making drinking of the water dangerous. The lawyers have to accept that they will be judged to the extent they are wedded to the constitutional mandate of “We the People”. And for this you do not require an army of people. Institutions don’t overhaul themselves. They find it painful. When an institution is in need of renewal, someone must shake it up. Mahatma Gandhi aptly said “A small body of determined spirits fired by an unquenchable faith in their mission can alter the course of history”.
The need for us lawyers to deeply plunge into the reality of social millen is urgent. It is well to recollect the wording given in a letter written by Edmund Burke to his friend, C.F. Fox, on 8 October 1777 wherein he said that “people crushed by law have no hope but from power. If laws are their enemies, they will be enemies to law, and those who have much to hope and nothing to lose, will always be dangerous more or less.” Who else but lawyer fraternity gathered here can be the best medium.
Let me end with the ringing words of Swami Vivekananda : “So long as the millions live in hunger and ignorance, I hold every man a traitor who, having been educated at their expense, pays not the least heed to them.” Is the young generation listening? Who else but the legal fraternity can be the shield and anchor for the poor, and thus meet the challenge of the century?
I wish the Conference full success.