Report No. 14

26. The Bar

1. Importance of the Bar.-

A well-organized system of judicial administration postulates a properly equipped and efficient Bar. It is not surprising therefore that our terms of reference mention among other subjects the level of the Bar.

2. Fall in Standards.-

The evidence given before us reveals a general consensus that there is a fall in efficiency and standards at the Bar. The recent recruit to the profession is said to be inferior in his legal equipment, less pains­taking and in a hurry to find work.

3. Poor calibre of law students.-

This decline is undoubtedly due in part to our Law Schools attracting by and large students of mediocre ability and indifferent merit. Several heads of law teaching institutions have told us that the majority of students are those who have barely succeeded in qualifying for the B.A, pass degree and walk into a law course with no fixed intention of entering the profession but merely because they have not been able to get, or are awaiting the chance of getting, employment. Entrance to other professional courses like engineering or medicine is subject to stiff tests and difficult to obtain. The portals of our law teaching institutions-manned by part-time lecturers-open ever wider and are accessible to any graduate.

4. Legal profession no longer attractive.-

The legal profession at one time, drew the best of talent; for, it offered glittering prizes and a career of independence with opportunities for distinguished public service. Success in it was worth while, even though it meant a long period of waiting and strenuous work. The prizes are no longer so attractive, the lawyer has lost his leadership in public life and above all the profession is so overcrowded that the young man entering it has to face years of struggle with no certainty of eventual success. There is overwhelming evidence that the vast majority of the junior Bar are hardly able to make a living.

A retired Chief Justice of India pointed out that the number of lawyers in the High Court of Madras and their annual increase was such that no Court could support it.1 No doubt we are living under a Constitution which guarantees freedom to practise any profession but, as was put to us by a leading lawyer, the time has arrived when "we must make up our minds whether we think that democracy means that anybody should become a lawyer and engage in any cut­throat competition or whether it means that anyone who has a talent can join in any honourable profession".

1. AIR Journal 1955, p. 25 (26) (The figure of 725 given in the journal of the number of advocates on the rolls of the Madras High Court is a misprint for 7325).

5. Diversion of talent to other fields.-

Owing to difficult economic conditions, the brilliant young graduate is no longer able to face a long waiting period, though it may end in a very remunerative career and prefers openings which promise an immediate and assured income. The expanding activities of the Government require an ever-increasing number of trained personnel in the All-India and State Services. Our growing industrial, scientific and engineering establishments rightly draw away our brilliant young men. There is also an increasing demand for the educated young man with a personality in numerous business concerns. No wonder therefore that our more talented graduates seek these avenues of employment in preference to a professional career in law.

6. Indifferent legal training in colleges.-

As we have noticed in the chapter on Legal Education, even such recruits of indifferent ability as we are able to draw are given A training which is deplorably deficient and can hardly lay a claim to be called a training in law.

And in chambers.- Formerly, it was usual for a junior entering the profession to work in the chambers of a senior where he received a training, assisting his senior in various kinds of work, watching him conduct cases in the preparation of which he has assisted, and occasionally getting opportunities of making a bow to the Court. With the very large increase in the number of juniors, it is difficult for many of them to obtain admission to the chambers of a senior. Nor does the present day junior, pressed by his needs to make an immediate living, show much inclination to plod this weary way of equipping himself for the profession.

We have been told by a number of senior lawyers that the majority of juniors who do read in their chambers display little interest in the seniors' work and do not show the zeal and industry which alone can make them effective juniors. On the other hand, there have been complaints by sections of the junior Bar in many places about the total lack of interest of the senior in the junior reading with him and a failure to see that the junior is paid a small fee even in cases where the junior has done work in Court for the senior. There is, it is said, a disposition in the senior to accept even small work which should go to a junior. It would thus appear that this most useful system-devilling with seniors-which gave rich training and experience and real opportunities to the juniors-has ceased to function in many parts of the country.

The over-crowding in the profession and the economic conditions of the new entrants to it have accentuated the evils of tourism and other undesirable and unprofessional practices which were largely prevalent even in 1925 when the Rankin Committee made its report. Standards of professional honour and integrity have tended to be increasingly forgotten in the intense struggle for the earning of a bare living.

7. Measures for arresting fall in standards.-

These, broadly speaking, are the factors which have resulted in the decline of efficiency and fall of standards at the Bar. Though it is not practicable to devise measures which would draw to the legal profession the flower of our youth as in former days; it is possible to bring to it, aspirants with a fair degree of intelligence and capacity by turning our law schools into real teaching institutions, subjecting the entrant to a proper practical training and a really stiff test, so as to ensure the recruitment of really trained and fit personnel and reducing the overcrowding of the profession by taking measures which would leave for the juniors certain classes of work. We have dealt, in detail, with the steps which need to be taken to bring about these results elsewhere in our report. Their importance cannot be exaggerated; for, it cannot be overlooked that it is the Bar which forms the main recruiting ground for the judiciary.

8. History of the Bar in India.-

A detailed history of the legal profession in India has been set out by the All-India Bar Committee in its report1 and we do not propose to go into it here.

1. Report, pp..-13, paras. 13-41.

9. The demand for an All-India Bar (The All-India Bar Committee) (Failure to implement recommendations).-

That Committee was appointed in response to a persistent and wide-spread demand for an All-India Bar. As far back as the 12th of April 1951, a comprehensive Bill was introduced in Parliament by a private member to implement the demand. As pointed out by the Committee, the demand for a unified All-India Bar which arose initially as a protest against the monopoly of the British barristers on the Original Sides of Calcutta and Bombay High Courts and the invidious distinctions between barristers and non-barristers, received a new orientation with the advent of independence and became a claim for the fulfilment of a cherished ideal",1 viz., an autonomous and unified all-India Bar.

The Committee went carefully into the whole question and made detailed recommendations for the unification of the Bar providing for a common roll of advocates who would be entitled to practise in all courts in the country. It is a matter for regret that these proposals which were made as far back as March 1953 and which, in the words of the Committee, sprang from "The sense of unity fondly fostered amongst the members of the legal fraternity in India brought about by our newly won independence and the establishment of the Supreme Court of India"2 should not yet have been given legislative effect.

1. Report, pp..-13, paras. 13-41.

2. Report, 20, para. 56.

10. Notwithstanding the lapse of ten years since independence, the Bar still remains divided into different grades of practitioners and even practitioners of the lowest grade, namely mukhtars, are still being recruited in some of the States. Indeed, the number of mukhtars in the State of West Bengal appears to have increased since the report of the Committee, notwithstanding its recommendation that recruitment of mukhtars should cease. We annex a Table at the end of the chapter showing State-wise the existing classes of legal practitioners and their number.

11. Recommendations of the Committee.-

The Committee recognized that the task of preparation of a common roll of advocates, who would be members of the unified All-India Bar, would be difficult but was not an impossible one, its principal recommendations in that behalf were:

(i) Each State Council should maintain a register of all existing advocates entitled to practise in their respective High Courts.

(ii) All vakils and pleaders, entitled to practise in the district and other subordinate courts, who are law graduates, should be entitled to be included in the roll of advocates maintained by the State Bar Council on payment of certain fees.

(iii) Vakils and pleaders, who are not law graduates but who, under the existing rules, are entitled to be enrolled as advocates, should also be entitled to be placed on that register.

(iv) The State Bar Councils should then send copies of such registers to the All-India Bar Council who are to compile a common roll of advocates in the order of seniority according to the date of the original enrolment of the advocates in their respective High Courts or the Supreme Court if they are not enrolled in any High Court.

(v) New entrants possessing the required minimum qualifications may also apply to a State Bar Council for enrolment and their names should be forwarded by the State Bar Council to the All-India Bar Council for being entered on the common roll.

The Committee also recommended that there should be no further recruitment of non-graduate pleaders or mukhtars.

We entirely endorse these recommendations.

12. Right of Advocate on common roll to practise in all courts.-

Under section 4 of the Legal Practitioners Act, 1879 .an advocate or vakil on the roll of any High Court is entitled to practise in his own High Court and in all subordinate Courts in the territories to which the Act extends and also with the leave of any other High Court, in that High Court. We entirely agree with the Bar Committee that the essence of an All-India Bar is the capacity or the right of its members to practise in all the courts in the country from the highest to the lowest and that the requirement of leave for practising in any other High Court under section 4 of the Act should not exist. An advocate, therefore, on the common roll of advocates to be maintained by the All-India Bar Council should be entitled to practise in all the Courts in the territory of India including the Supreme Court.

13. No restrictions on right to practise in the Supreme Court.-

A majority of the Committee were of the opinion that the insistence on a certain number of years' practice in a High Court as a condition of eligibility for enrolment as an advocate of the Supreme Court had not yielded satisfactory results and that it was best to let an advocate have the freedom to practise in any court including the Supreme Court irrespective of his standing at the Bar. We entirely agree with this view. Indeed, the imposition of such a requirement of eligibility is inconsistent with the right which would arise in an advocate by reason of his being entered on the common roll of advocates to practise in all Courts in the country including the highest.

14. Existence of separate Bar associations inconsistent with a unifid Bar.-

We would like, at this stage, to make a reference to a practice which we consider to be somewhat inconsistent with the idea of an integrated Bar with a common roll for the whole country. We found in some places like Calcutta, Allahabad and Patna, the Bar practising in the High Court divided into different groups, each with its own separate association and exclusive rooms in the High Court buildings. In Calcutta, this division of the Bar into groups is to be found even in the Chief Presidency Magistrate's Court and the Small Causes Court. There appears to be some antagonism between these groups in Calcutta, so that members of the association of one group are precluded from being members of the association formed by the other group. We were told that members of one association may not even enter the rooms of the other association.

15. Separate associations.-

This division into groups seems to owe its origin to the division between advocates and vakils which prevailed in the Calcutta and some other Bars. The advocates who mainly practised on the Original Side were members of the English Bar-both Englishmen and Indians and they formed themselves into Bar Associations or Bar Library Clubs and segregated themselves from the vakils who had their own associations. These associations were probably started by members of the English Bar who, for a considerable number of years, had made the Original Sides of the High Courts their exclusive preserve. Indeed, it was for a considerable time believed by the litigating public that the barristers who formed these associations were a type of lawyers superior to the vakils who had Indian qualifications.

The myth of the superiority of men called to the Bar in England disappeared years ago; indeed, in some parts of the country like Madras and Bombay, the roles were reversed. The litigating public came to believe that the advocates who had qualified for practice on the Original Side in India were far more capable than members of the Bar who had qualified in England.

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