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Justice Shankar Prasad Bhargava memorial lecture . The Role of the Bar in the Preservation of the Rule of law
by Mr. Justice J.S. Verma, Judge, Supreme Court of India
Cite as : (1995) 1 SCC (Jour) 11
The topic depicts the theme of the First Memorial Lecture I have been invited to deliver, to perpetuate the memory of Justice Shankar Prasad Bhargava, a distinguished member of the District Bar Association, Ujjain. Justice S.P. Bhargava, after a successful career at the Bar, primarily in the District Courts, had been chosen, as the first lawyer in this State practising essentially in the District Courts, to be appointed a Judge of the Madhya Pradesh High Court in 1959 at a time when members of the Bar practising essentially in the High Court were appointed Judges in the High Court. Justice S.P. Bhargava served as a Judge in the High Court till 1973 and then was President of the Industrial Court for some years. He passed away full of years and honours in the service of law, last year. In a fitting tribute to his contribution in the field of law, the members of his family have set up a trust to arrange the Memorial Lectures annually, to perpetuate his memory. May be, I qualify to deliver the inaugural lecture because I happen to be his only colleague on the Bench who continues to be a sitting Judge. I am, therefore, in your midst to inaugurate the S.P. Bhargava Memorial Lectures at the behest of the organisers.
The topic speaks of the role of the Bar "in the preservation of the rule of law" and not merely "in the practice of the rule of law". The distinction is significant. One speaks of preservation at a time when the very existence is threatened and emphasis is laid on the means essential for preservation, to prevent extinction. Rule of law is the essence of democracy and a basic feature of the Indian Constitution. At this juncture, when the credibility of all institutions appears to be eroded, at least to some extent, we cannot exhibit the ostrich syndrome and be naive to ignore the reality that the image of the judiciary also is tarnished and needs to be refurbished. We must, therefore, devote ourselves wholeheartedly to devising the proper means to refurbish the image of the justice delivery system which is essential for effective operation of the rule of law and thereby preservation and proper functioning of democracy in the country. Without democracy the aspirations of the people of India cannot be realised. We must continue to march on the chosen path and the obstacles on the way to the goal must be removed. The Bar has the most significant role in this endeavour. This is the main theme of the Memorial Lecture.
The word 'Bar' in the context means not merely the lawyers but also the Judges. It is from amongst the lawyers that Judges are chosen; and ultimately it is the quality of lawyers which determines the quality 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 Allahabad High Court Post-Centenary Silver Jubilee Commemoration Volume at the beginning quotes from the ancient texts, as a reminder, thus:
jktk rq /kkfeZdku~ lE;ku~ fu;qUT;kr~ lqijksf{krku~
O;ogkj /kqja oks<+a ;s 'kDrk % ln~Hkkok bo
/keZ'kkL=kFkZ dq'kyk % dqyhuk % lR;okfnu %
lek % 'k=ks p fe=s p u`irs L;q % lHkkln %
- ukjn 36-4-5 (/keZdks'k - 43)
Let the king appoint, as members of the Courts of Justice, honourable men of proven integrity, who are able to bear the burden of administration of Justice and who are well versed in the sacred laws, rules of prudence, who are noble and impartial towards friends or foes.
For this purpose, the legal education and the training of apprentices at the Bar must conform to the above requirement for the making of an accomplished lawyer. Obviously there is, in general, deficiency in this sphere. I have always wondered why the emphasis on legal education and training of apprentices at the Bar has been so indifferent and deficient when the equipment of a lawyer needs to be no less than that of any other professional. The study of medicine or any branch of technology is not a casual affair and the minimum qualification for entry to any of those professions requires certain level of expertise and experience essential for proper discharge of the duties, but then the same care is lacking in permitting entry into the legal profession. This is true, notwithstanding the fact that the requirements of ability and excellence with requisite expertise is no less in the legal profession. While some practical training is essential in the other professions even after more serious professional study, it is totally lacking for entry into the legal profession, in the present set-up. The result is that anyone so inclined can stray into the legal profession without acquiring even the minimum professional skill required of a practising lawyer. There being no gradation amongst the lawyers in the existing system regulating their appearance at different levels in the hierarchy of courts, a raw law graduate has claim to enrolment straightaway as an advocate and the right of audience even in the Apex Court on the very day of his enrolment. If such a course is impermissible in any other profession, why should it be any different in the legal profession, is difficult to comprehend. It was not so earlier when we joined the Bar. The unwisdom of the change needs due reflection in the light of experience gained from the unsatisfactory results of the change affecting the course of administration of justice. The matter has to be viewed in the proper perspective keeping uppermost the public interest and not merely the claim of the raw law graduates clamouring for the right of audience even in the Apex Court on the very date of enrolment as an advocate without acquiring the experience necessary for appearance in the higher courts.
It is unfair to blame the litigant for the wrong choice of lawyer since he has no part in regulating entry into the legal profession and quite often 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 proper quality of legal education which ensures that every law graduate who joins the Bar is possessed of the requisite minimum expertise necessary to make a lawyer; and before he gains entry into the legal profession he has also been imparted the requisite minimum training to ensure that he is possessed of the skill essential to discharge the duties of a member of the legal profession.
Earlier, every new entrant was required to undergo some training in the chambers of a senior lawyer which inculcated a sense of discipline in him and it also unfolded to the junior lawyers the needs of the legal profession. It helped to develop a bond between the junior and senior members of the Bar assuring continuance of the rich traditions and heritage of the Bar. Deficiency in the legal education was overcome to a great extent in this manner. Unfortunately this practice is now almost extinct and that too has contributed to some extent to some of the growing maladies. The blame has to be shared both by the juniors and the seniors, even though for different reasons. It would be desirable to make every attempt to restore those values and traditions, which to a great extent can contribute to the growth of a strong and efficient Bar.
In recent years, there is also a drift in the attitude of the members of the Bar away from the true concept of the profession to that of business or trade. It is this shift which accounts for some comparatively recent aberrations. Conceptually, a profession is service-oriented while in business the prime motive is personal profit. This attitudinal shift accounts for the change in the behaviour pattern. There is, therefore, need to reverse the trend and correct the attitude. No doubt, it is true that economic compulsions of a new entrant in modern times can contribute to the change in attitude and outlook. However, to provide for that situation there is need to devise means to ensure that the basic needs of a deserving and devoted new entrant are provided for, in a proper manner, and he gets the necessary encouragement to withstand the rigours of life at the threshold of his career. Efforts to identify such persons and to provide for them, would also promote the growth of quality in the younger generation which is necessary for the good health of the system.
We hardly find any emphasis on the ethical education of the new entrants even though that forms a necessary part of the mental equipment and personality of members of every profession. A very useful book -Professional Conduct and Advocacy by K.V. Krishnaswami Aiyar, is a collection of lectures delivered to the apprentices-at-law of the Madras Bar Association. The book is out of print for quite some time. This is indicative of the apathy towards this subject in recent years. When I joined the Bar, my senior's first advice to me was to read and assimilate this book. That advice was of immense value to me. I have no doubt that its efficacy now is even greater. I would recommend the same to every junior lawyer. That will indicate to you the equipment necessary for every member of the legal profession.
It is worthwhile to refer to the Foreword to the Second Edition (1945) of this book by Sir Maurice Gwyer, former Chief Justice of India. In the Foreword, Sir Maurice Gwyer after quoting the author, who said: "Every member of the Bar is a trustee for the honour and prestige of the profession as a whole", proceeded to indicate the utility of that book thus:
"... The student or young advocate who reads this book will learn why that is so. He will also understand better than he did before that the law is a great and noble profession, whatever its critics may say, and law itself a great and noble science, the king of kings, as the sacred books of this country call it; and he will, I hope, determine that never by any act or word of his will he show himself unworthy of the great tradition which he has inherited and which the author of this book puts so plainly and convincingly before him."
There is in recent times the realisation that the deficiency in legal education needs to be cured and regulation of entry into the Bar is also called for to ensure that only persons well-equipped to properly discharge the role of a lawyer gain entry into it. It is hoped that the necessary steps would materialise early. One such step in contemplation is to have law colleges which impart legal education on the lines of other professional courses to exclude indifferent persons gaining entry and to make graduation in law a course of serious study. The National Law School at Bangalore as the first step in that direction has already achieved success. The idea of each State having a law school on the same pattern has already been mooted. It is gratifying to learn that the Government of Madhya Pradesh has already announced its resolve to set up such a law school in this State closely following the setting up of the National Judicial Academy at Bhopal. The Judicial Academy would cater to the need of imparting training to judicial officers from all States. In due course, some programme could be developed for training even the junior lawyers and refresher courses of senior members desirous of that benefit. I am happy that an effective step in this direction has been taken with the location of the National Judicial Academy at Bhopal and the decision to start a National Law School on the pattern of National Law School, Bangalore as an adjunct to the Judicial Academy.
There is another aspect of this matter. It appears to me that it is now time for some rethinking about the desirability of having an Indian Judicial Service on the pattern of the Indian Administrative Service. There is no denying the fact that very few good students take up the study of law by choice and quite often the source is from the residue left after most of them have chosen medicine or any other technical branch of a presitigious service. Easy graduation in law makes things worse. Bulk of the Bar being so constituted, its quality suffers. If there be an Indian Judicial Service constituted on the pattern of the Indian Administrative Service, many bright young men may be inclined to opt for it and even those unsuccessful who join the Bar would be of superior quality. Level of legal education of those candidates would automatically improve because of greater seriousness of their study. Constitution of the Indian Judicial Service would improve the quality of the judiciary at the subordinate level and in turn provide for better quality of Judges from that source for the higher judiciary. The recent trend of disinclination of successful members of the Bar to accept a Judgeship because for them the profession is more lucrative is creating a problem which, to some extent at least, can be solved by this method. The bright young men who join the Indian Judicial Service would in due course constitute a section of the higher judiciary. Improvement of the stock has to be made keeping in view the future need.
It is necessary to refer to some disturbing recent trends which affect proper administration of justice in the country. In any orderly society the mode of protest against any decision must be in accord with the rule of law. The recent trend of the Bar to agitate against an unpalatable decision is by resort to extra-judicial and extra-legal methods, one of which is a strike resulting in closure of courts. Rule of law requires solution of every problem and redressal of every grievance in the manner provided by law. For proper administration of justice, it is necessary that there should be easy access to the courts without any hindrance. If there be any hindrance to the hearing and adjudication of causes pending in the courts by causes other than those which are natural, it is a matter of grave concern. Article 21 of the Constitution has been construed to include therein the right to speedy justice. Access to courts is a long recognised right. Backlog of cases causing enormous delay is a matter of serious concern with which we are constantly grappling. In such a situation, any act of persons committed to the cause of administration of justice which hampers that effort, has to be viewed with serious concern.
To illustrate the adverse effect of a lawyers' strike on the course of administration of justice and the hardship caused to litigants for whom the courts are meant, I may refer to a recent news-item in The Times of India dated 20-12-1994 under the heading "Court closures take a heavy toll of cases". It gives statistics relating to the subordinate courts at Delhi which are startling. In Delhi, the subordinate courts remained closed on account of lawyers' strikes for one day out of every four days during the last four years; on each day of strike 10,000 cases are pushed back by at least four months; and the latest strike by the Delhi Bar Association from 13-12-1994 to 16-12-1994 resulted in adjournment of over 35,000 cases. Irrespective of the reason for the strike, it is the litigants who suffered for no fault of theirs. It is even more distressing to find that the latest strike by the Delhi Bar Association was after the Supreme Court's interim order dated 7-12-1994 made at the behest of the leaders of the Bar in a public interest litigation brought to challenge the lawyers' right to go on strike. In view of the pendency of that cause in the court, I say only that which is a matter of record and express no opinion leaving it to you to form your own impression.
It is also time now to seriously rethink the need of introducing some control of the courts in this sphere since administration of justice is primarily their responsibility. One can realise the difficulty which members of the Bar face in imposing discipline amongst themselves which can be done more effectively by the courts as was the position prior to the Advocates Act, 1961. I am given to understand that even the Bar Council of India is not averse to such a thought in view of the practical difficulty it faces in imposing discipline on the erring members of the Bar. This is a matter which has been dealt with in detail by a Committee comprising of Justice A.M. Ahmadi, now the Chief Justice of India, and the Chief Justices of the two High Courts pursuant to a resolution passed in the last Chief Justices' Conference. I understand, the report of that Committee deals with matters which relate to reforms in legal education and entry into the legal profession. We do hope that with the positive attitude of the Bar Council of India indicated to the Committee, it would be possible to soon make the necessary reforms in this sphere. I may recall that in my inaugural address in a seminar organised by the Bar Council of India at Jaipur in December 1988, I had expressed serious concern at the trend of strike by the Bar and referred to its adverse consequences on the practice of rule of law in the country and suggested to the Bar Council of India to consider the issue with the seriousness it deserves before the situation deteriorates further. I derive some satisfaction from the growing awareness to this problem. I am glad that even though the malady has grown considerably since then, there is full realisation of the need to check the rot before it further eats into the vitals of the judicial administration. These are some of the facets which must be kept in view when we speak of the rule of law and our role in ensuring its true practice.
We are the torch bearers of the present generation. Let us hand over to the next generation a brighter torch providing better illumination so that posterity does not condemn us as persons who could not rise to the occasion in the performance of our primary duty to the nation. Let us resolve to rededicate ourselves to work with full vigour to ensure continued governance of the nation by 'Rule of Law' which catalyses the nation's progress by accelerating the march towards attainment of complete social justice. The Bar Council of India representing the entire legal profession in the country must bear in mind its primary obligation and the true purpose of its existence. This is the fundamental duty to which it must always be alive and it must do its utmost to contribute fruitfully to the nation's progress in the right direction.
Ujjain was the seat of King Vikramaditya known to history as the fountain of Justice. The Bar Association of Ujjain has contributed from amongst its members three Judges to the Madhya Pradesh High Court, namely, S.P. Bhargava, S.S. Sharma and A.G. Qureshi and a Chairman of the Bar Council of India, L.P. Bhargava. It is reasonable to expect from the Ujjain Bar Association a degree of awareness of the quality and standard expected from a member of the Bar. You have a rich heritage in keeping with the highest traditions of the Bar. It is your duty to uphold the dignity of the Bar and to propagate the message far and wide to improve the stock and the quality of the Bar which is primordial in the maintenance of rule of law, without which democracy cannot survive. I am sure Justice S.P. Bhargava would have agreed with every word I have said. This is my tribute to Justice S.P. Bhargava and I hope the Ujjain Bar Association joins me wholeheartedly in the same.
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