Docstoc

INAUGURAL SPEECH IN

Document Sample
INAUGURAL SPEECH IN Powered By Docstoc
					                               INAUGURAL SPEECH IN
                 THE TWO DAY NATIONAL SUMMIT OF LEGAL FRATERNITY
                              “LAWYERS’ INDIA – 2006”
                        ORGANISED BY BAR COUNCIL OF INDIA




                                                                                - Y. K. Sabharwal,
                                                                               Chief Justice of India



        It is a matter of privilege for me to be with the galaxy of leaders of the legal fraternity,

drawn from its various sections including the Judiciary, Bar, legislature and the field of legal

education. When I was approached to inaugurate this Summit, I thought it was my bounden duty

to be present on this important occasion, not only to renew & strengthen my bonds with all of you,

but also because the topics chosen for discussion and deliberation in this summit are matters of

my constant concern.

        The role of legal fraternity in strengthening the democratic polity and the principles of rule

of law in our country has been well chronicled and universally known. The goals of justice - social,

economic & political, and of liberty and equality have not yet been fully attained. We are all

partners in the justice delivery system of this country and, therefore, accountable to the people of

India. This bestows on each of us the status of persons in “public service”. In this view, I would

first touch upon the last of the four topics chosen for deliberation in this forum, namely:



        “Society’s expectation from legal fraternity and its fulfillment”

        Legal fraternity, we can proudly proclaim, represents the most important enlightened and

traditionally respected section of the society.       In a democratic polity, the role of this noble

profession has always been very significant. It is the watchdog of democracy and ever vigilant in

the matters concerning rule of law as guaranteed by the Constitution. The continuance of a free

society where the rights guaranteed by the Constitution are duly honored by the State, and its

subjects, and where everyone works for the common good depends, to a large measure, on the

role of the legal community. After all, it is they who would pursue the matters of breaches.




                                                  1
        The Supreme Court in Ramon Services Pvt. Ltd. V. Subhash Kapoor [(2001) 1 SCC

118] described the role of legal profession in the following words:


                “Persons belonging to the legal profession are concededly the
                elite of the society. They have always been in the vanguard of
                progress and development of not only law but the polity as a
                whole. Citizenry looks at them with hope and expectations for
                traversing on the new paths and virgin fields to be marched on by
                the society.     The profession by and large, till date has
                undoubtedly performed its duties and obligations and has never
                hesitated to shoulder its responsibilities in larger interests of
                mankind. The lawyers, who have been acknowledged as being
                sober, task-oriented, professionally responsible stratum of the
                population, are further obliged to utilize their skills for socio-
                political modernization of the country. The lawyers are a force for
                the preservance and strengthening of constitutional Government
                as they are guardians of the modern legal system.”


          Lawyers are described as officers of Court. Their larger duty, however, is towards the

  society as a whole. Justice Fortas emphasized on this aspect in the following words:


                “A Lawyer is not merely a craftsman, or even an artist. He has a
                special role in our society. He is a professional especially
                ordained to perform at the crisis time of the life of other people,
                and almost daily, to make moral judgments of great sensitivity.
                He is an important hand at the wheels of our economy and of
                course as the custodian of the flaming world of individual and
                professional liberty, as well as of the public order”.



        The legal system of all modern free States is a part of their social system and reflects its

  social, political, economic and cultural mores. In this view, the object of such enlightened class

  as the legal community, in a country like ours, where a large section of our huge population still

  suffers from penury, deprivation, atrocities, oppression & absence of remedies, cannot be just

  to make a living. The high status and respect that the lawyers generally command in our

  society burdens them with a corresponding duty that all of their actions or conduct would have

  the character of nobility imbued with the object of espousing the cause of general public good.

        The society expects the Bar to render professional services in the nature of legal aid,

  advice and advocacy, in a free and fearless manner, so as to bring about peace and prosperity

  for one and all. The judiciary, as one of the chief organs of the State, cannot discharge its

  duties in the administration of justice without the total commitment and participation of its main



                                                 2
component, namely, the Bar.        It would not be wrong to say that the efficiency of judicial

administration largely depends on the competence of the Bar.

        The judicial system in India suffers from virtually a backbreaking load. This is not a new

phenomenon. The delays of the judicial system were the ground reality in the incipient years of

free India. Even while we are nearing completion of six decades of independence, the malaise

of inordinate delays seems to have become more acute. The recourse to administration of

justice for redressal appears to have become costlier. The pendency in the courts at all levels

seems to have geometrically multiplied. Generally speaking, courts have not been able to

match disposal with the inflow of new litigation, thereby adding to the mounting arrears. The

end result in this entire gloomy scenario is that justice eludes a large section of our society.

        One of the reasons oft referred in above context is the highly inadequate Judge-

population in India, which has been assessed way back as 10.5 judges per million of population.

Numerous Commissions and Committees have made recommendations for five-fold increases

in each rung of the judicial hierarchy, in the hope that such increase would take care of the

existing arrears and the future needs. No concrete follow up action appears to be even in the

pipeline for deliverance in near future. Suggestions have come from cross sections of the

society for improvement in the infrastructure for judicial administration. Judiciary has been

pressing for some kind of financial autonomy.         Reforms in such regard are still awaited.

Judiciary continues to be at the receiving end.

        Legal fraternity, however, cannot run away from the responsibility by taking the cover of

plea about want of timely action by the Executive. We shall have to share part of the blame for

what ails the system as a whole.

        Bar Council of India is the apex statutory body controlling the affairs and concerns of

the lawyers’ community. It has been vested with functions, amongst others, of safeguarding the

rights, privileges & interests of the Advocates. This is just one of the functions of the Bar

Council. It is also under a statutory duty “to promote and support law reform”, to lay down

“standards of professional conduct and etiquette for Advocates” and to “organize legal aid to the

poor”. It has the disciplinary control over the Advocates in the matters involving “professional or

other misconduct”.




                                                  3
          Without meaning to attenuate the responsibility of the judges for the deficiencies in the

system, I would focus here on the areas where the lawyers’ community has been found wanting

in meeting the aspirations of the society at large. It is genuine and legitimate expectation of

every litigant that he should get speedy justice.        The duty to dispense justice has been

undertaken by the State as part of its sovereign obligation. It is the legitimate expectation of

every person taking recourse to the judicial process that he would not be burdened with

unnecessary or unreasonable expense. The judicial administration seems to be failing on both

counts.

      The litigants, by and large, come from that class of society which is either ignorant or

resourceless. They believe in the advice of the advocates blindly, to the extent of being gullible.

Cases of cheating, breach of trust, moral turpitude or some such element of criminality,

involving legal fraternity vis-à-vis the litigants at large are becoming too recurrent for comfort.

      The lawyers constitute a noble profession. This naturally gives rise to an expectation that

they shall discharge their duties in a manner that is professional, or in other words systematic,

methodical, based on objective study & research of law. The casual approach, bordering on

callousness, in preparation of the cases before hearing and truancy after acceptance of the

brief, have been cause of injustice too frequently to be ignored as stray cases of aberrations. I

would quote Jeremy Bentham in this context. He once wondered as to why “Lawyers are the

only persons in whom ignorance of the law is not punished”.

          Strikes or boycotts by lawyers have been the subject matter of debate for quiet some

time now. Lawyers form an enlightened community.           They not only know the law but are also

have access to the redressal system. In spite of directions from the Supreme Court against

such methods of demand, and assurances from the leaders of the Bar to the contrary from time

to time, strikes by Bar Associations continue to be rampant in some or other corner of the

country almost all the time. The members who do not support the strike call face the threat of

expulsion.

      A recent case from Coimbatore involved a lady advocate who took up the courage to

approach the Supreme Court. On 27th February, when the matter was heard in Court, it was

submitted on behalf of the concerned Bar Association that it had realized on mature



                                                 4
consideration as to the legal position that the strike call was against the law laid down by the

Supreme Court.

      The expulsion of the petitioner in that case has since been revoked. But the point that

needs to be underscored here is that realization and better counsel came from within the Bar. I

hope this spirit would be not only sustained but gain momentum all over, on this issue that

concerns the very credibility of the judicial institution and the example set by Coimbatore shall

be emulated by others.

        The litigants have been described above as consumers of justice. We exist because of

them. The witnesses come to the court to assist in the cause of justice in which we are all

stakeholders. The harassment to such sections of the society at the hands of the judicial

system continues unabated. One of the reasons for this has always been identifiable, viz.

frivolous adjournments. We must bid good-bye to ‘Adjournment culture’. Further, I would also

like to underscore the lack of method in case management and brief management on the part of

the lawyers.

        All lawyers do not have the advantage of good libraries or resource material.

Computers are generally used as electronic typewriters. The full promise of computers, what

with legal software, Internet, et al, has not been fully tapped.

        It is the society’s expectations from the legal fraternity that it shall objectively and

diligently provide inexpensive legal aid and advice to all who are obliged to take recourse to

legal remedies, irrespective of considerations in the nature of lucre.

      The wheels of justice must never be grounded to a halt and it is the responsibility of each

of the partners in the system to ensure that the courts function ceaselessly. The autonomy

given to the Bar Council in the matters of discipline obliges it to preserve the professional purity

so that commitment to the cause of public good is promoted. The Bar must guard its dignity

and privileges. But at the same time it must keep vigilance & strict disciplinary control over

breaches of ethics by its members. As indicated by the Supreme Court in V.C. Rangaduri v. D.

Gopalan & Ors. [AIR 1979 SC 281], the standard of proof in the disciplinary jurisdiction of the

Bar Councils has to be “convincing preponderance of evidence”. It is only when cases of gross




                                                 5
breach of ethics are vested with exemplary punishment, of course based on uniform objective

standards, that the credibility of the legal fraternity can be saved from erosion.

        Before concluding my thoughts on this part of the subject I would reiterate what I have

said before. Bar has always been the nursery for the judiciary. The society expects that the

legal fraternity will continue shaping up knowledgeable lawyers of eminence, erudition, vision

and integrity, persons who can adorn the Bench in the future.



      “Changes required in Working and Procedural Laws for a speedy                  processing”



        The need to revamp the judicial administration so that it is always geared up to provide

speedy justice is universally acknowledged.         The reasons for delays as attributable to the

inaction on the part of the Executive need not be reiterated. I would restrict myself to the need

for introspection on the part of the Bench and the Bar.

        We continue to be governed by the procedural laws that had their origin more than a

century ago. Changes, by way of amendments, have been brought about from time to time and

yet the system does not seem to be delivering justice within reasonable time frame.

      The new Criminal Procedure Code was enacted in 1973. Amendments have been carried

over the years. The Committee under the Chairmanship of Justice Malimath suggested some

further reforms in March 2003. Part of the recommendations found favour with the Legislature,

which paved way for certain amendments that are yet to be brought in force, mainly on account

of opposition from the Bar.

         Civil Procedure Code, of 1908 vintage, was amended substantially in 1976 and then

again in 1999 & 2002.         The object of these amendments was to introduce elements of

expedition.

      My anxiety is as to why these amendments have not afforded the desired results. I may

mention just three areas of reform to highlight what we have done with them: -

           The amended CPC lays down a time frame for almost every stage of the trial

               procedure. The command of the law in this regard continues to be avoided while

               seeking adjournments on frivolous grounds.



                                                6
           The CPC in its amended form obliges the parties to introduce evidence in the

                 form of affidavits. This provision is often abused to introduce evidence which

                 may be irrelevant, evidence virtually copied from the pleadings or evidence which

                 is not even understood by, or explained to, the witness to whom it is attributable.

                 The intentions may not be, but the end result definitely is, dilatory.

           CPC also requires mandatory use of Alternative Dispute Resolution mechanism
                 including mediation, conciliation etc.    There seems to be a general mistrust,

                 distrust or, at least, disinclination in taking recourse to such techniques which are

                 designed to bring about an amicable settlement of the matter to the satisfaction of

                 both sides.

      Is this sorry state of affairs a result of lack of awareness? Or, motivation is lacking? Or,

there is any other reason including interest of one party to litigation to delay? I am quite certain

that you will discuss why these reforms have not given the desired results & adopt requisite

remedial measures so far as Bar is concerned.

        The Bar has an immense role to play in legal reforms. We need urgent revamp in the

procedural laws and the practices concerning their working. If the system is to redeem its

promise, it has to deliver quick justice. This requires speedy processing of all cases that come

to the courts.

      The changes suggested in various fora, or by various Committees or Commissions, may

not have been to the complete satisfaction of the lawyers’ community. Criticism is the easiest

thing to do. The society expects concrete contribution from the legal fraternity. It is time the

lawyers’ community put its head together and came out with its own agenda of reforms,

particularly focused on the subject of expediting justice.

        ADR is the buzzword today. Legal fraternity may have certain misgivings about the

process of conciliation or mediation. The thrust on these tools in India is yet new. The efficacy

of these techniques has been tested, and positive results achieved, by advanced countries. We

have to allow these techniques their full play so that we can test their full potential. I would

commend the Bar to come forward and cooperate with the judicial administration in this venture.

This hopefully will bring about not only reduction in arrears but also general harmony.



                                                   7
      In above context, I would quote the words of Abraham Lincoln who said: -

      “Discourage litigation. Persuade your neighbors to compromise whenever you

      can. As a peacemaker the lawyer has superior opportunity of being a good man.

      There will still be business enough.”



             “Role of Bar Councils in developing a new generation of lawyers” and

                                   “Reforms in Legal Education”

        The remaining two topics earmarked for discussion in this summit are inter-connected.

Reforms in Legal Education would have greater impact on the future generation of lawyers and

judges and it is that future generation, in the development and shaping up of which the Bar

Councils have an important role to play.

        Whichever hat one may be wearing at any given point of time, the members of the legal

fraternity are all first and foremost lawyers. The legal profession in a modern democratic State

comprises, within its fold, not only the practitioners of law in the courts but also academicians

involved in teaching and research of law, persons engaged in the task of legislative drafting and

also Legal Advisers in the business activities requiring use of knowledge of legal processes and

requisite skills for drafting of commercial documents. Legal education thus must be designed to

produce talent that can cater to myriad needs of the State and society.

        Like other democratic organs, our legal system also faces the crisis of credibility. Most

of the reasons for this stem from the areas in which we seem to be failing in imparting legal

education. The concept of teaching law is not restrictive to knowledge of law. Knowledge is

power. Legal education also involves instilling values that have to be adhered by a person

wielding such power.

        Barring few exceptions, it is generally accepted and acknowledged that the field of legal

education has suffered corrosion over the years. The areas of deterioration cover almost the

entire spectrum of activity in a law college. By and large, law colleges have poor infrastructure.

The libraries are inadequate, if not out-dated or obsolete. There seems to be no uniformity in

the syllabus taught in various universities or institutions. The methods of teaching also vary.




                                               8
Discipline comes at a premium. Truancy seems to prevail all round.          The teaching faculty

generally lacks motivation in the matter of adopting new techniques or engaging themselves in

new research to update their knowledge. The pedagogical skills leave much to be desired. The

stress seems to be on rote learning of nuances of statutory text rather than clarity about legal

concepts.    The training in legal drafting, power of expression, articulation of views and

techniques of declamation is restricted to chosen view. The concepts of ethics and public

service are relegated probably to the realm of subjects that are optional or inconsequential.

         The slackening of standards in the law teaching institutions appears to be on account of

mushroom growth, almost in the nature of “a profit-making industry”.         Legal professionals

always boast of this field requiring lot of toil and labour. Yet, innumerable law colleges are

churning out lawyers in large numbers. In the words of Calvin Trillin “If law school is so hard to

get through … how come there are so many lawyers?” The country needs quality and not mere

quantity.

         I am reminded of Albert Einstein, one of the greatest physicists after Isaac Newton. The

circumstances surrounding his expulsion from a school in Munich as described in his biography

“The Young Einstein” by Patrick Pringle is a good expose of the hollowness of the education

system in Germany during the last decade of 19th Century. Einstein hated learning facts and

took the plea that one could always look them up in books. He openly protested by saying that

education was a process of development of ideas, the WHYs and HOWs of a phenomena.

One can easily draw a parallel between the system Einstein protested against and our present

educational system, at least in many law colleges.

         In my view, what we require to evolve is summarized in the following words of Rudyard

Kipling: -

               “I keep six honest serving men;

               They taught me all I knew.

               Their names are what and why and

               When and how and where and who.”




                                                 9
                 Bar Council of India is under a statutory duty to promote legal education, to lay

down standards of such education and to recognize universities offering courses in law.

University Grants Commission (UGC) is also statutorily concerned with the subject of control

over universities and colleges for prescribing standards of education.         Thus, two statutory

bodies are entrusted with the same task in relation to the field of law education. It has been

said before that UGC lays down the minimum standards that have to be kept by the institutions

of higher learning. The BCI is in a position to “aim for higher standards”. There is an urgent

need for a bridge between the two bodies so that they can aim for coordination, an expression

in the context of Entry 66 of List I in the 7th Schedule to the Constitution, which has been

construed by the Supreme Court in University of Delhi v. Raj Singh [Judgments Today 1994

(6) SC 1] as not merely evaluation but harmonizing or bringing into a proper relation in a

common pattern of action.

        The requisite coordination can be easily achieved if the suggestions of Law

Commission in its 184th Report (December 2002) about the composition of “Legal Education

Committees” of UGC & BCI are accepted. I would venture to suggest that rather than having

two committees, both the statutory bodies may consider having a common Legal Education

Committee with representation from each side. Needless to add, all stakeholders, including

judiciary, have to be associated in this Committee so that the results to be achieved are to the

optimum satisfaction of one and all. There is a need for radical reform about the process of

“intake”, so as to bring about uniformity in standards. We can take a leaf out of the experience

of management institutes, medical education or engineering colleges who hold Common

Entrance Tests. Perhaps a common test, which could be christened as “Law Aptitude Test” or

LAT, could become a benchmark for admissions to Law Schools.

        The debate over the choice between 3 years or 5 years Law Degree courses would

continue. Suffice it to say that each of them caters to the needs of different age groups. I must,

however, add that the course content and methodology for these two different courses has to be

suitably tailored according to the level of maturity of those being trained.




                                                10
           One of the criticisms of 5 years’ Law Degree course has been that young minds cannot

understand and appreciate law. My answer to this would be that persons of younger age group

are equated to “Tabula Rasa” and have a greater sense of justice. Social values can be easily

inculcated at young age.

           Legal education has two goals to achieve. One is imparting of knowledge of law and

the second is preparing the trainees to use the same in the chosen profession that could be law

practice, judicial service, corporate world etc.     Mere theoretical knowledge can never be

adequate.      Training in professional courses has to be practice-oriented. The debate over

superiority of lecture method or case law method will go on. As suggested by the Law

Commission in the 184th Report, there is a need to evolve “the problem method”.

      I feel a hybrid of all these methods would be the best method. Learning of the law laid

down in a certain fact situation may be important but what is more important is clarity of legal

concepts.     We cannot send the young minds into grooves.         That would stifle independent

cogent & fresh thinking on their part. They have to be equipped with the analytical skills to be all

set to think on their feet. They have to be readied not only to conceptualize and crystallize their

views but also express them not merely in writing but by word of mouth. Each product of every

law college must have requisite training to voice his opinion and engage in debate over the

issues involved.

           The classroom training in law colleges can never be a substitute for practical training

before making a young lawyer eligible to appear in a Court of law. Can we produce doctors

without given to them first hand experience of attending on patients in hospitals? The study of

law within the confines of a law college keeps the young minds restricted to cold facts in the

cases that happened in the past. They have to be brought to real life issues, situations and

litigation so as to have “hands on” approach and understand as to how the law develops or is

applied.

           The training rules formulated by the Bar Council of India in 1995 had to be struck down

by the Supreme Court in V. Sunder v. Bar Council of India [(1999) 3 SCC 176], since they

were beyond the rule making power. None-the-less, the object behind those rules was lauded




                                                11
and it was suggested that the Bar Council should provide “in practice” training to the young

entrants to the profession.       Law Commission of India in the 184th Report has reiterated the

need for one-year apprenticeship and has suggested suitable amendments to the Advocates

Act for the purpose.

        In above context, I would like to remind all concerned that legal profession is not

restricted to elite or affluent sections of society. Youths from lower or middle strata of society

also aspire to take up law as a profession. They cannot survive unless they are supported

financially in their nascent years. If compulsory apprenticeship is to achieve proper results, it is

not only necessary that senior lawyers take under their wings young entrants so that they can be

properly initiated, but is also important that they are duly remunerated for the assistance given

by them. The superior courts in the country have now in vogue the system of Law Clerks. I

strongly feel that this has to be extended to the subordinate judiciary as well so that benefits

reach those who want to begin at the grassroots. The “in practice” training will also imbibe in the

new generation the principles of proper case management and court management.

      To summarize, the basic qualities that a legal professional must demonstrate include not

only his knowledge of law but also analytical and intellectual ability coupled with a total

commitment towards the obligations of the profession vis-à-vis the society. A legal professional

represents an independent intellectual group, which has the capacity and the opportunity to

change the societal trends. It inheres in this that a member of legal fraternity will always be

scrupulous in abiding by the morals, the ethics and the high traditions of the system that he has

adopted, not merely by way of inheritance from his forerunners but as a loan from the future

generations that are to follow.

        A thinker, whose name I do not recall, talked of two possibilities in life. One can be a

partner or one can be a parasite.         Partnership involves “giving” while parasitism involves

“taking”. I envision legal fraternity as a partner in the progress of our society. All of us have a

stake in developing a new generation of legal professionals who would be such partners in the

future. Let us play our assigned parts with utmost sincerity.


                                               ******




                                                12

				
DOCUMENT INFO