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Study Material Professional Ethics
B.A.LL.B. (HONS) X SEMESTER Unit 1
ORIGIN OF PROFESSIONAL LEGAL EDUCATION
A. Origin and Development of Legal Education from double Degree courses to B.A.LL.B.
(Five Years Integrated Course)
Legal education and its importance to establish rule of law in society to impart justice does not receive serious priority though one can easily study history of modern times which shows that lawyers are social engineers who gave leadership to nations. For example, most of our freedom fighters such as Sardar Vallabhbhai Patel, Dr. Rajendra Prasad, Rajaji, etc were lawyers and were not doctors, engineers and not people from other fields. It is due to the reason that they interact with society at large and have knowledge of law that how one should find loopholes in law and apply it to do good for society by safeguarding their rights from arbitral powers. It is due to the continuous efforts of lawyers only that we enjoy our basic fundamental rights which cannot be abridge by government or any other authority and these are the basic rights a person must receive in order to have freedom in his life and any law or rule which infringes the fundamental rights is made ultra-vires as to secure justice. Legal education not only provide justice but create awareness among individuals of their rights, duties, values, ethics and morals i.e. it creates consciousness through law and religion among society that what is right and wrong and in which direction a person needs to head by following rule of law.
Today in India there are 12 National Law Universities and other includes private and state universities imparting legal education under the supervision of BCI and Every work in the field of legal education is done in consonance with the provisions of BCI with its approval and BCI is responsible to lay down rules and to promote legal education in India. All the universities imparting legal education are affiliated from BCI and students seeking enrolment as advocates require to qualify All India Bar Examination conducted by BCI which is a compulsory exam to enrol as advocates in our country.
History of Legal Education Ancient India
Legal historians record instances of legal practitioners indigenously known as ‘Pleaders’ or
‘Niyogis’ representing parties in litigation at least from the time of Manu Smriti, a person well versed in Dharma Shastra and procedure of law could be appointed as the representative.
In ancient India law was understood as a branch of Dharma. The Vedas were the original sources of law, and the Smritis announced the message of Vedas and Smritikars were great jurists. Although there is no record of formal training in law, the dispensation of justice was to be done by the king on the basis of a self-acquired training. Justice was also administered by the King through his appointees who in turn were persons of known integrity and reputation of being fair and impartial. The guiding force for the King or his appointee was the upholding of the Dharma.
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British India
Formal legal education in India came into existence in 1855 and its aim was to equip law students so that they could help the lower courts and High courts by enrolling themselves as Vakils or becoming judicial officers. There is no tradition of legal research and academic legal training and system of teaching compulsory subjects under straight lecture method were continued for almost a century.
Independent India
The Bar Council of India was established under section 4 of Advocates Act, 1961 which is a statutory body to regulate legal education and profession. In the year 1985 the first law university was established in India in Bangalore named as “National Law School of India University”. It was the time when LLB degree was started in India. The method of teaching was also started supplemented by tutorials, seminars, moot courts and case methods. And thereafter the education of law in India has been offered by the various universities and in various academic levels. With the enactment of Advocates Act, 1961 new regulations were framed for imparting legal education in India, method of teaching also needed change which were purely lecture method with marginal provision for training for students, manner of conferring degree etc. In modern times the system has completely changed and requires more dynamic education structure to compete in global word with innovative ideas and research in legal field.
Legal education in India traces its origin to the Ancient period when the kings and princes were given teachings about Dharma and Nyaya.
Then in the Mughal Period, the concept of legal representatives of people or vakils came into existence.
In the colonial era, the right to act as counsel was granted only to the British or the Irish.
In the post – Independence era legal education has been traditionally offered as a three years graduate degree.
However, the structure has been changed since 1987. Law degrees in India are granted and conferred in terms of the Advocates Act, 1961, which is a statute regulating the aspect of legal education and also regulation of the conduct of legal profession.
Traditionally the degrees that were conferred were of LL.B. (Bachelor of Laws) or B.L.
(Bachelor of Law). To be eligible to get a law degree, one needed to have a Bachelor’s degree in any subject of the choice.
Aims of Legal Education
Legal profession has always been considered as a noble profession as lawyers are the centre pillars of the society who help the common man to know his rights and claim them legally.
We need legal education to fulfil the needs of the society and country as well because lawyers are the persons who interpret the law and deals directly with the entire society.
Modern legal education in India was started by the British and its principal aim was to acquaint Indians with rules of law which would help them in the administration of the country.
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Even after the independence the state of legal education remained unsatisfactory for years and there were no changes in the age old syllabus of courses according to the changed needs of the country. While the Radhakrishnan Committee (University Education Commission 1948-49), the Bombay Legal Education Committee (1949) and the Setalvad Committee (1954) showed their disillusionment and dissatisfaction with legal education in their respective reports and drew attention to its defects and deficiencies, it was the Gajendragadkar Committee (1970) which could be credited for articulating the objectives and aims of legal education in India. The aim of legal education,’ said the Gajendragadkar Committee, ‘would be to make the students of law good lawyers who have absorbed and mastered the theory of law, its philosophy, its functions and its role in a democratic society.’
Thus, legal education has diversified aims:
Its primary aim is to make the student familiar with the legal concepts such as process of making laws, settling disputes and court room manners etc. and to provide justice-oriented education and produce competent legal professionals.
Since law is a multidisciplinary subject hence understanding it in various social, economic, political and scientific way to fulfil diverse legal needs at home and abroad is it’s another aim.
Its aim is to give knowledge of basic subjects of law with its use in practical terms i.e. it require study in terms of both theory and practical part to produce lawyers who are equipped for law practice in the global legal environment and who can serve the interests of Indian citizens, business, government and NGOs and provide transnational legal services in a highly competitive interdependent and interconnected globalized world.
Its aim is to improve teaching by providing emphasis on research and publications in legal field so that students can combat any legal problems which come their way and to create new legal knowledge and ideas to meet new challenges facing the society.
Lastly it aims at providing reforms in legal field as there is inadequate quality of legal education and infrastructure and lack of relevant skills training to meet the ever-changing demands of the modern world and there is need of creating clear quality standards for legal education.
Legal Education System In India
Study of law is referred as legal education and law is considered as a multi-disciplinary subject which involves basic knowledge of science, philosophy, business modes, arts, general knowledge, history etc. and include everything which concerns the welfare and intercourse of men in society i.e. a lawyer need to have understanding of all these to regulate the relation between individuals in society and although to produce lawyers of such qualities is certainly not possible for our law schools but all efforts need to be made to achieve this goal of legal education in our country.
Today India produces the largest number of law graduates and around more than fifty institutions produces more than 5000 graduates per year. The number has increased over the years and there is wide range of professional opportunities available for students creating the future direction of legal education immense in India. The legal world has changed with change in legal education system and now it is completely different from what was it 10 years ago.
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Now the opportunities or career options are vast for trained lawyers and the method of teaching is also significantly improved from the past years making it a promising career option then earlier when it was used to be the last resort.
Present Scenario
The Bar Council of India is the present regulatory body who makes rules and regulation for the promotion of legal education in India. Law degrees are given and conferred in terms of Advocates Act, 1961 under which BCI is formed as a statutory body and given regulating power to conduct for both legal education and profession. Universities are also need to be affiliated from BCI, it also prescribes rules and standards of courses of study, infrastructure requirements, eligibility for admission and is responsible for the promotion of legal studies in India. According to BCI rules part IV section 4 of chapter II there are two study systems operating simultaneously. Traditionally legal education was imparted as a three years graduate degree(unitary) after completion of Bachelor’s degree which is introduced by BCI in 1961 and other is a integrated five-year law course(double degree) introduced by BCI in 1982 which is provided after 12th standard as an alternative to three year course so that law aspirants can directly enrol in universities to avail B.A. LL.B, B.Com LL.B, B.B.A. LL.B, B.Sc. LL.B. It is an integrated course means Bachelor’s degree is given with the law degree in which student studies subjects of both the degrees simultaneously at the college and at the end one degree is given which is combination of both bachelor’s and law degree.
Whereas in three-year course only after completion of bachelor’s degree a student is eligible to enrol for law degree, in this only law subjects are taught to the students for 3 years and then the degree is granted. Both the courses are conducted in semester system which shall not be less than 15 weeks for unitary degree and 18 weeks for double degree. Further there is also provision for moot courts, seminars and tutorial classes per week for the students. It also states that each student shall accomplish his internship at legal aid office or a lawyer’s office or at any place where legal work is given to him.
Apart from studying law as a discipline there are various courses which include study of law subjects, that means by legal education we not only refer to study of basic law subjects but also study of applied law programs for other courses such as business law, taxation law, company law etc. By this we can assume that legal education is also scattered in some or the other way in form of study of law subjects in other courses as well, for example- There are various diploma and certificate courses provided in various subjects like cyber law, taxation law, banking law, human rights and legal literacy etc. we also study commercial and taxation law in commerce and accountancy at undergraduate or postgraduate level. Similarly, Intellectual Property laws are taught at undergraduate engineering level, subjects like securities law, company law etc. are taught in company secretary course and business law at business school.
Hence legal education not only includes basic LL. B degree but also study of various other law subjects in different courses at each level which students’ study in various form to gain knowledge of law to be applied at different scenario.
Apart from this legal education also includes vocational courses such as CA, CS, ICWA, etc., higher academic degrees and doctorates for more advanced study. We also have continuous legal education system where judges and senior advocates are provided with opportunity to enhance their present knowledge and skills.
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Study and Practice
Legal education is both a theory and includes practice as well because there is a big difference in the education we receive and the practice we dream to do in real life. Textbooks only provide us with basic knowledge or crux of the law or case we study but in reality what facts are followed become issue which can only be understood by practicing it in real life and the cases which we study only includes the substantial part of the law but in reality a case involves questions and issues from various branches of law. Therefore it is essential to have practical knowledge of law to understand that in what sense and how a law or rule is applied in a given circumstance.
Chief Justice Burger in his address to the American College of Trial Lawyers in Columbia observed: “In some jurisdictions, up to half of the lawyers who appear in court are so poorly trained in that they are not properly performing their job and that their manners, their professional performance and their professional ethics offend a great many people. They are engaging in on the job training at the expense of their clients’ interest and the public.” Chief Justice Burger’s comment would hold equally good in the context of legal profession and its education in India. It is very general knowledge that a large part of the two lakh graduates being added every year to the existing ten lakh advocates in the country, are absentee law students who pass out from about 500 law colleges/schools. Such advocates ultimately learn, if at all, at the cost of the poor clients and court time.
To avoid such problems Bar Council has made it mandatory to do internships during legal studies to gain practical knowledge of subject. A student must do minimum 12 weeks of internship for three-year course and 20 weeks in case of five-year integrated course under any authority or body corporate where law is practiced. Thus, a law school needs to produce graduates who not only receives formal education but those who are trained to postulate new social, economic and political issues requiring legal attention. Training is an integral part of legal education which prepares students to contend any issue which comes in his career in which even he receives no formal education.
President Pranab Mukherjee also said that “Our educational institutions imparting law education have to bridge the gap between theoretical concepts and practical application. They have to ignite inquiry and encourage curiosity," as the study of legal system could not be pursued in isolation from the wider socio-economic realities, he observed.
Curriculum and Teaching
Curriculum is a necessary instrument for achieving aims and objectives of legal education and its continuous development must be carried for making legal education more relevant and meaningful for its aspirants. A reliable curriculum not only reflect the vision of legal education and demands of legal profession but must be in consonance with the requirements, learning needs of the students, adequate infrastructure, competent faculty and other social needs.
Curriculum is an organized academic framework to facilitate the teaching - learning process but syllabus is not framed by BCI. Syllabus is left to the universities and this accounts for the various different syllabuses for the same subject throughout India. Curriculum shall be made in a way which not only includes formal legal education but help in the growth of the students to enable them to opt for career in any legal field or outside legal profession having studied the subjects of law.
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According to schedule II of Bar Council Of India rules on legal education the academic standards and courses to be studied are: for both the unitary and double degree course students have to take not less than 28 subjects which includes 18 compulsory subjects, 4 clinical subjects, 6 optional papers and includes any additional paper as prescribed by the university.
For honours students one has to take up at least 30 papers and university can choose accordingly from the list of subjects that which paper it would include as a honours paper i.e. there is freedom to universities to restrict subjects in group for offering options based on the availability of faculty and other facilities. Bar Council of India provides the wider outline that which basic subjects, clinical subjects, optional subjects shall be included in curriculum to make it effective and meaningful to students. There is a complete list of basic subjects given by BCI to be taught to students like constitutional law, contract act, law of torts, civil law, criminal law, etc. and clinical subjects like drafting, pleading, conveyance, alternative dispute resolution etc. with other honours subjects including foreign language as mandatory subject to be taught in every law school.
Apart from this moot court exercise and internships form important part of curriculum because it is the only way of giving practical training to students in their academic life. BCI has provided norms for this as well which says that each registered student shall have completed minimum 12 weeks internship for three year course and 20 weeks for five year course during the entire period of studies under NGO, Trial and Appellate Advocates, Judiciary, Legal Regulatory authorities, Legislatures and Parliament, Other Legal Functionaries, Market Institutions, Law Firms, Companies, Local Self Government and other such bodies as the University shall stipulate, where law is practiced either in action or in dispute resolution or in management.
Method of legal education has been constantly changing but value of syllabus lies in the manner in which students are exposed to the contents of the course and not merely in the contents itself thus skilled and qualified teachers need to be retained by the universities to impart good level of education. Though there is substantial changes are made in the teaching method from the past but still there is a room for improvement to enhance the level of teaching and to use innovative methods for training purpose as well. The lecture method plays an important role and is still in practice as a mode of instruction because teachers are medium for transferring not only book based knowledge but newly created knowledge combined with practical experience, reasoning, their own thought process and perspective on the subject to students.
Now a days teaching method has been changed from teacher- centred to learner centred method which includes participation by students in topic discussed, seminars and guest lectures method to teach by eminent persons in their respective field as to provide them knowledge of specific subjects from their perspective and experience which help students to have better understanding of subject concerned. As in curriculum training and legal aid program form integral part to prepare students for practice and gain experience of work of lawyers in different subject matters so as to learn professional skills and sound understanding of legal profession it is required that apart from whole time law teachers they should be taught by faculty members or learned persons of field having academic knowledge, experience and professional proficiency which lacks in full time teacher of universities or law schools to benefit students from all sides.
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According to the provisions of BCI medium of instruction must be English and full-time faculty members shall be holders of Master’s degree and other visiting, part time faculty may be appointed from the retired judicial officers, a person practicing in court of law or having professional experience in the field. In present scenario research can contribute significantly toward improvement in teaching and, more importantly, addressing numerous challenges relating to law and justice. If one were to look at the faculty profile of the world’s top law schools, one will find that there is great emphasis on research and publications among academics. Therefore, universities are required to hire good academic professionals having proper knowledge of their subject and one who are top researchers in law field imbued with sound teaching methods and those who emphasise on research and publication to create an intellectually vibrant environment.
Qualification and Examination
The process of entering into the legal profession differs at each level and continues afterward in the form of professional entrance requirements i.e. at each stage qualification requirements differ. For seeking admission into legal education or a minimum of the 45% of the total marks is necessary for getting admitted into any recognized university for law programme including any other institutional criteria required by institution to get admitted.
Aspirants can enter into field for five-year integrated course after passing 12th standard and shall not be above the age of 20 years and after completing undergraduate degree for three-year course on successful completion of which a student becomes lawyer. For judges there is separate criteria for examinations including preliminary, mains followed by interview and training on selection. Similarly, different entrance requirements are there for each field which must be cleared to enter into the stream.
Coming to the modes of examination appropriate methods need to be devised to measure the ability of students in terms of critical analysis of law and its operation in society. According to examination rule guidelines of BCI examination must be held at the end of each semester and minimum 70% attendance is required in each subject to appear in examination. University is at liberty to hold exam on continuous basis and accordingly assess students based on moot court activities, project works, assignments, internships, viva, written exams etc.
Careers in Legal Field
The end result of legal education is lawyer and with the pace of time career options has also increased. From the traditional practicing advocate in court now there are various scopes in legal field which includes Corporate Counsellors with increasing number of corporate firms, civil and judicial services for those who want to serve the country, Paralegal services, Legal Analyst, Document Drafting Lawyer who specializes in drafting various documents, Legal Journalist who covers crime beats or legal and arbitral proceedings, Legal Advisor who offer consultancy to corporate firms and other services which demands knowledge of law as the main ingredient. Apart from this academic profession is also an option and there are various degrees at each level for knowledge and promotion of lawyers at large like after LL.B (Bachelor of law) there is LL.M (Master of Laws) which is postgraduate degree now of 1 year, Ph.D. (Doctor Of Philosophy), Master of Business laws etc.
Challenges and Opportunities
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Law as a profession is kind of defamed one therefore foremost priority must be given to it that people should understand that lawyers are for the benefit of the society. Secondly there is need to reform the curriculum i.e. there is course has been made too vast to be taught in short span of time which at times does not provide students better understanding of subjects and also some modern day subjects of importance shall be added such as cyber law, investment law, taxation law, information technology and others which are need of the hour. Further reform is needed to ensure the quality of lawyers who enter the legal profession i.e. a far more practical training must be given in the form of case study, participating in Trail as to ensure efficiency and effectiveness in profession. Other challenges include physical infrastructure means there is need for sound and developed infrastructure, requirement of hiring good teachers and researchers who initiate research and encourage lawyers to opt academics as career option and inspiring students to work towards establishing rule of law in Indian society.
In present there are ample of opportunities as new area of work are increased in wake of globalization and governance such as international trade, foreign investments, mergers and takeovers etc .which require agreements between the countries and knowledge of law of country with whom agreement is made. Also, with increased awareness among society there are civil and human rights movement worldwide which requires lawyers to provide justice and help to needy. To this end, legal education system needs new ideas, thinking and innovations to make it more relevant, effective, trustworthy, authentic and focused on research and legal training to produce value based qualitative lawyers in the country.
Establishment of National Law Universities: A major step towards reforming legal education in India
However, owing to this system of offering of a law degree as an additional degree after graduation, law as a profession could not flourish as a specialized course. Hence the Law Commission and the Bar Council clamoured for a more specialized form of legal education in India.
This decision was taken somewhere in 1985 and thereafter the first law University in India was set up in Bangalore which was named as the National Law School of India University (popularly ‘NLS’).
These law universities were meant to offer a multi-disciplinary and integrated approach to legal education. It was therefore for the first time that a law degree other than LL.B. or B.L. was granted in India. NLS offered a five years law course upon the successful completion of which an integrated degree with the title of “B.A.LL.B. (Honours)” would be granted. The credit for establishing the National Law School cut in India goes to Prof. NR Madhav Menon. Due to the highly specialized legal education that NLSIU offers, it is popularly known as ‘Harvard of the East’. Thereafter other law universities were set up, all offering five years integrated law degree. The next in line was National Law Institute University set up in Bhopal in 1997. It was followed by NALSAR university of law set up in 1998. The National Law University, Jodhpur offered for the first time in 2001 the integrated law degree of “B.B.A, LL.B. (Honours)” which was preceded by the West Bengal National University of Juridical Sciences offering the “B.Sc., LL.B. (Honours)” degree.
Reforming of Law entrance exam, CLAT: A major step towards reforming legal education
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Till the year 2008, these National law Universities used to separate entrance test but then the Common Law Admission Test (CLAT) was brought into existence for unifying the system of law entrance in India just like in medicine and engineering. The turn of the century has witnessed a revolution in legal education. This has resulted in better infrastructure, greater private involvement and increased investment in legal education. Private universities like Jindal University in Sonipat, and Symbiosis University in Pune are adding are creating a new niche for themselves in the realm of legal education in India.
Thus, any student in India who wants to pursue a specialized course in law after 12th standard has a multitude of options, be it the NLUs or the private institutes. Even if one wants to pursue law after graduation the option of three-year LLB degree is available to him or her in Delhi University or Punjab University etc. As a matter of fact, the entrance coaching for law entrances has also become really specialized owing to centres such as Career Launcher or Time.
A look inside legal education institution
The laws schools in India have a proliferating culture of moot courts which has made legal education for more practical and behavioural than just simply rote learning the letter of the law.
There is also a development of an active debating circuit amongst the law schools which has made the budding lawyers more eloquent and expressive. There are various research centres within the law schools dealing with different branches of law publishing various journal and newsletters and thus encouraging the students to write research paper, this trend has, in turn, led to increasing the level of research in law on the whole. Almost every law school has an internship committee which mandates a certain number of compulsory internships for the students in order to make them well verse with the practical nuances of law.
The fact that law firms such as Amarchand and Mangaldas and Luthra and Luthra offer campus placements have given a great boost to the students to join the legal profession as they no longer have to worry about setting up their own legal practice from scratch. Many law schools even offer to coach for judicial services exams as well which is a great boon to the students.
As far as post-graduation in law is concerned almost every law school in India offers an LLM degree by the way of an entrance exam. As a matter of fact, there is a rising number of law schools which offer a doctorate degree as well.
Hence, the scenario of legal education is becoming more and more specialized as was envisioned by the well-wishers of the legal profession. The role of the UGC in providing assistance and guidelines for the functioning of the upcoming law schools has been indispensable. The new era of legal education in India has opened up avenues for students in law students an India and completely revamped the image and structure of the legal profession of the country and it is no longer viewed in the parochial manner as it used to be before.
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B. Role of Lawyers in National Movement of Independence, deliberations in constituent Assembly and Parliament.
With the selfless guidance and statesmanship of the legal profession, the Indian national movement gained participation and its impact reached far beyond immediate political consequences.
The movement that began in 1857 as a sepoy mutiny took the shape of a nationwide struggle for Independence from the British Raj. It incorporated various national and regional campaigns, agitations and efforts of both non-violent and militant philosophies.
Humble beginnings of the Indian National Congress
After the First war of Independence in 1857 and its aftermath, the formation of Indian National Congress in 1885 marked the beginning of a new era in the national movement. The era was of moderates like Dadabhai Naoroji and Sundernath Bannerjee while Madan Mohan Malviya and Motilal Nehru, amongst others, were important moderate leaders who were lawyers by profession. The moderates believed in the system of constitutionalism. They functioned more as a debating society that met annually to express its loyalty to the British Raj and passed numerous resolutions on less controversial issues such as civil rights or opportunities in government which were submitted to the Viceroy’s government and occasionally to the British Parliament. But none of this made any substantive impact.
In 1905, the British announced the partition of Bengal on communal lines. This was opposed by the Congress and the nationalist leaders who adopted policies like Swadeshi wherein they boycotted British goods and promoted Indian goods. This created a faction in the Congress and brought to light the underlying forces of antagonism that was prevalent in the Indian National Congress due to the opposite ideologies of Moderates and emerging group of the extremists.
The extremists – Lal, Bal, Pal
Lawyers like Bal Gangadhar Tilak, who was an extremist, gave a new direction to the INC.
Tilak began a new phase of more radical thought within the organization. He put forth new ideas and methods of opposing the imperialist rule and advocated stronger actions like the boycott of foreign goods and the policy of swadeshi (self-reliance). He did not believe that the British rule was beneficial and instead felt that their rule was extremely harmful. He introduced the idea of Swaraj (complete independence) way back in 1897 with his famous statement,
“Swaraj is my birth right and I shall have it”.
After the partition of Bengal, he emerged as an important leader of the extremist faction. In the 1906 session he was able to get his ideas of swaraj, swadeshi and boycott adopted despite the opposition of the moderates. After the split of the Indian National Congress in 1907, the British began cracking down on extremist leaders. Bal Gangadhar Tilak was imprisoned and deported to Mandalay for six years. During this time, he wrote two books, Gita Rahasya and the Artic Home in the Vedas. He was released in 1914 and started the home rule league two years later in 1916, which inspired the youth to fight against the foreign occupation of the country. Sir Valentine Chirol rightly described him as one of the most dangerous pioneers of disaffection and truly the father of Indian unrest.
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Other eminent lawyers who supported the extremist ideology were C. Rajagopalachari and Lala Lajpat Rai. Lala Lajpat Rai was popularly known as the Punjab Kesari and Sher-e-Punjab and was also the founder of Punjab National Bank and Lakshmi Insurance Company. He formed the extremist faction of the congress along with Tilak and Bipin Chandra Pal, the trio was popularly called Lal, Bal, Pal. Later, Lajpat Rai presided over the first session of the All India Trade Union Congress in 1920. He also went to Geneva to attend the eighth International Labour Conference in 1926 as a representative of Indian labour. His journals Bande Mataram and People, contained his inspiring speeches to end oppression by the foreign rulers.
Fighting the British in court
A cycle of violence and repression had ensued in some parts of the country as a result of the partition of Bengal, and Alipore Bomb Case was a famous controversy which arose at that time. Aurobindo Ghosh and 37 other revolutionaries were suspected to have been engaged in illegal activities and sedition and were arrested. However, the eminent lawyer CR Das came to the rescue, who through his brilliant handling of the case got Aurobindo and many others was acquitted. This case brought Das to the forefront professionally and politically. Also called Deshbandhu, CR Das, used his legal knowledge to save many other nationalists and revolutionaries from the clutches of the British. He was the defence counsel in the Dacca Conspiracy Case (1910-11) as well and was famed for his handling of both civil and criminal law.
Meanwhile, in 1909, the British Government announced certain reforms in the structure of Government in India, known as Morley-Minto Reforms. But these reforms came as a disappointment as they did not mark any advance towards the establishment of a representative Government. The provision of special representation of the Muslims was seen as a threat to the Hindu-Muslim unity on which the strength of the National Movement rested. Thus, these reforms were vehemently opposed by all the nationalists. The disgust with the reforms announced in 1909 led to the intensification of the struggle for Swaraj. While, on one side, the extremists waged a virtual war against the British, on the other side, the revolutionaries stepped up their violent activities. There was a widespread unrest in the country. To add to the already growing discontent among the people, Rowlatt Act was passed in 1919, which empowered the Government to put people in jail without trial. This caused widespread indignation, led to massive demonstration and hartals.
Lawyer cum nationalist, Saifuddin Kitchlew was one of the leaders who protested against this legislation. Kithclew was also a founding leader of the Naujawan Bharat Sabha (Indian Youth Congress), which rallied hundreds of thousands of students and young Indians to nationalist causes. He was also among the principal founders of Jamia Millia Islamia.
Mahatma Gandhi
This also marked the entrance of Mahatma Gandhi in the mainstream Indian politics. Gandhi, also a lawyer by profession, had just returned from South Africa, where he had carried out a successful Satyagraha against the racial discrimination and for civil liberties of the people.
Meanwhile, Gandhi had made his mark in India already by his success in Champaran and Kheda Satyagraha. Gandhi led organized protests and strikes against the landlords who, with the guidance of the British government, signed an agreement granting the poor farmers of the region more compensation and control over farming, and cancellation of revenue hikes and its collection until the famine ended. In Kheda, Sardar Patel, a lawyer by profession, represented
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the farmers in negotiations with the British, who suspended revenue collection and released all the prisoners.
Patel subsequently organised the peasants of Kheda, Borsad, and Bardoli in Gujarat in non- violent civil disobedience against oppressive policies imposed by the British Raj; in this role, he became one of the most influential leaders in Gujarat.
Rajendra Prasad, an eminent lawyer and the first President of India, was also involved with Gandhi in the Champaran movement. Bhulabhai Desai, another lawyer and a politician, represented the farmers of Gujarat in the inquiry by the British Government following the Bardoli Satyagraha in 1928. Bhulabhai formidably represented the farmers’ case, and was important to the eventual success of the struggle.
Most lawyers gave their time freely, at the cost of their own legal practice, to the defence of scores of helpless victims of Martial Law implemented by the British, who had been condemned to the gallows or sentenced to long terms of imprisonment. There was a shift in ideology as well, from moderate to a more radical one.
The era of mass movements
In December 1921, Gandhi was invested with executive authority on behalf of the Indian National Congress. Under his leadership, the Congress was reorganized with a new constitution, with the goal of Swaraj. Membership in the party was opened to anyone prepared to pay a token fee. Thus congress, an elitist institution was now open to masses by Gandhi.
Gandhi expanded his non-violence platform to include the swadeshi policy — the boycott of foreign-made goods, especially British goods. Linked to this was his advocacy that khadi (homespun cloth) be worn by all Indians instead of British-made textiles. This was a strategy to inculcate discipline and dedication to weed out the unwilling and ambitious, and to include women in the movement at a time when many thoughts that such activities were not respectable activities for women. In addition to boycotting British products, Gandhi urged the people to boycott British educational institutions and law courts, to resign from government employment, and to forsake British titles and honours.
Non-cooperation Movement also saw the involvement of Jawaharlal Nehru who plunged himself into the Indian freedom struggle during this time. A London educated lawyer, Nehru had spent his time touring the nation and spreading Gandhian ideas and making himself acquainted with the problems of the common people. Rajagopalachari, Lala Lajpat Rai, Madan Mohan Malviya, Motilal Nehru, CR Das and Sardar Patel were other lawyers who gave their full contribution to the non-cooperation movement. Patel toured the state to recruit more than 300,000 members and raise over Rs. 1.5 million in funds for the non-cooperation movement and helped organise bonfires of British goods in Ahmedabad and Gujarat. He also supported Gandhi’s controversial suspension of resistance in wake of the Chauri Chaura incident. He worked extensively in the following years in Gujarat against alcoholism, untouchability and caste discrimination, as well as for the empowerment of women.
With the suspension of the Non-Cooperation Movement, CR Das and Motilal Nehru endeavoured to give a new orientation to Indian politics through his Council-Entry programme, i.e. “Non-Cooperation from within the Councils”. They however met with vehement opposition from Gandhi and the “No-changers”. Thereafter CR Das, Motilal Nehru, the Ali brothers, Ajmal Khan, V. J. Patel, Pratap Guha Roy and others organised the Swarajya Party within the
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Congress. It was initially known as the Congress-Swaraj-Khilafat Party. Through the efforts of the Swarajists, Maulana Azad was elected President of the Congress Special Session at Delhi, where the programme of Council-Entry was approved. The programme was later confirmed at the Co- Canada Session.
The Swarajya Party was the largest Party in the Central Legislative Assembly as well as in some of the Provincial Legislatures. From 1925 onwards it was recognised by the Congress as its political wing.
After the Simon Commission and the violence in its aftermath, an All-Parties Conference was convened by Dr. Ansari, the Congress President, and a Committee, including Tej Bahadur Sapru, an eminent lawyer and headed by Motilal Nehru, was appointed to determine the principles of a constitution for free India. The report of the Committee – the Nehru Report as it came to be called – attempted a solution of the communal problem which unfortunately failed to receive the support of a vocal section of Muslim opinion led by the Aga Khan and Jinnah.
The Nehru Report, representing as it did the highest common denominator among a number of heterogeneous Parties was based on the assumption that the new Indian Constitution would be based on Dominion Status. Calcutta Congress (December 1928) over which Motilal presided was the scene of a head-on clash between those who were prepared to accept Dominion Status and those who would have nothing short of complete independence. A split was averted by a via media proposed by Gandhi-ji, according to which if Britain did not concede Dominion Status within a year, the Congress was to demand complete independence and to fight for it, if necessary, by launching civil disobedience. Gandhi had not only moderated the views of younger men like Subhash Chandra Bose and Jawaharlal Nehru, who sought a demand for immediate independence, but also reduced his own call to a one-year wait, instead of two. The British did not respond. Mahatma Gandhi led the Civil Disobedience Movement that was launched in the Congress Session of December 1929. The aim of this movement was a complete disobedience of the orders of the British Government. On 31 December 1929, the flag of India was unfurled in Lahore session of the Congress and 26 January 1930 was celebrated as India’s Independence Day by the Indian National Congress.
The President of the historic Lahore session, Jawahar Lal Nehru was prompt to use the platform in order to declare Purna Swaraj or Complete Independence. The monumental Lahore Congress introduced the Civil Disobedience Movement.
This was followed by Gandhiji launching his famous Salt Satyagraha and the Dandi march in Gujarat. During the same time, revolutionaries Bhagat Singh, Sukhdev and Rajguru were arrested on the charges of throwing a bomb in the Central Assembly Hall. Asaf Ali, a freedom fighter and a prominent lawyer, defended the revolutionaries but they were hanged on March 23, 1931.
The government, represented by Lord Edward Irwin, decided to negotiate with Gandhi after the civil disobedience movement. The Gandhi- Irwin Pact was signed in March 1931. The British Government agreed to free all political prisoners, in return for the suspension of the civil disobedience movement. After the signing of the Gandhi-Irwin Pact, Patel was elected Congress president for its 1931 session in Karachi‚ Adhere the Congress ratified the pact, committed itself to the defence of fundamental rights and human freedoms, and a vision of a secular nation, minimum wage and the abolition of untouchability and serfdom. Patel used his
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position as Congress president in organising the return of confiscated lands to farmers in Gujarat.
Round table conferences
As a result of the pact, Gandhi was invited to attend the Round Table Conference in London as the sole representative of the INC. The conference was a disappointment to Gandhi and the nationalists, because it focused on the Indian princes and Indian minorities rather than on a transfer of power.
In 1932, another round table conference was organized and Ambedkar, an eminent lawyer and a Dalit leader was invited to attend the same. Ambedkar had been working for the social upliftment of the Dalits and lower caste people and was opposed to the Hindu idea of casteism and social discrimination. Through his campaigning, the government granted untouchables separate electorates under the new constitution. In protest Gandhi began a fast-unto-death while imprisoned in the Yerwada Central Jail of Pune in 1932 against the separate electorate for untouchables only. Ambedkar agreed under massive coercion from the supporters of Gandhi for an agreement, which saw Gandhi end his fast, while dropping the demand for separate electorates that was promised through the British Communal Award prior to Ambedkar’s meeting with Gandhi. This was the start of a new campaign by Gandhi to improve the lives of the untouchables, whom he named Harijans, the children of God. On 8 May 1933, Gandhi began a 21-day fast of self-purification to help the Harijan movement.
Second World War and the Quit India Movement
World War II broke out in 1939 when Nazi Germany invaded Poland. Gandhi promised to extend his support to the British in the war in return of the freedom, while Subhash Chandra Bose advocated taking advantage of the situation to expel the British Raj by any means necessary. This caused a fiction between the two and led to Bose resigning from INC. Leaders like Gobind Bhallabh Pant, who was also a lawyer by profession, acted as the tiebreaker between them.
Gandhi then declared that India could not be party to a war ostensibly being fought for democratic freedom, while that freedom was denied to India itself. In August 1942, Gandhi launched the ‘Quit India Movement’ and a mass civil disobedience movement. The movement was followed, nonetheless, by large-scale violence directed at railway stations, telegraph offices, government buildings, and other emblems and institutions of colonial rule. There were widespread acts of sabotage, and the government held Gandhi responsible for these acts of violence. All the prominent leaders were arrested, the Congress was banned and the police and army were brought out to suppress the movement.
Meanwhile, Netaji Subhash Chandra Bose, who stealthily ran away from the British detention in Calcutta, reached foreign lands like Japan and organized the Indian National Army (INA) to overthrow the British from India but it was only partially successful as Japan lost the World War and Netaji met with an air crash and died.
When three captured Indian National Army (INA) officers, Shahnawaz Khan, Prem Kumar Sahgal and Gurbaksh Singh Dhillon were put on trial for treason, the Congress formed a Defence committee composed of 17 advocates including Bhulabhai Desai. The court-martial hearing began in October 1945 at the Red Fort. Bhulabhai was the leading counsel for the
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defence. Afzal Ali also came to be the convenor of the INA defence team. Another prominent lawyer defending them was Kailash Nath Katju who also defended the accused in the Meerut Conspiracy Case in Allahabad High Court in 1933. The successful release of all 3 officers was a great achievement on the part of the Indian lawyers.
Cabinet Mission and Partition
At the conclusion of the Second World War, the Labour Party, under Prime Minister Clement Richard Attlee, came to power in Britain. The Labour Party was sympathetic towards India‚Äôs freedom and a Cabinet Mission was sent to India in March 1946, which proposed the formation of an interim Government and convening of a Constituent Assembly comprising members elected by the provincial legislatures and nominees of the Indian states. An interim Government was formed headed by Jawaharlal Nehru who was an obvious choice given that he was the then President of the INC. Jawaharlal Nehru’s rise within the Indian National Congress (INC) was dramatic in the years following the Non-Cooperation movement.
A Constituent Assembly was formed in July 1946, to frame the Constitution of India and Dr.
Rajendra Prasad was elected its President. The new Congress-led government invited Ambedkar to serve as the nation’s first law minister, which he accepted. Ambedkar was also appointed as the Chairman of the Constitution Drafting Committee, charged by the Assembly to draft India’s new Constitution. Ambedkar won great praise from his colleagues and contemporary observers for his drafting work.
However, the Muslim League refused to participate in the deliberations of the Constituent Assembly and pressed for the separate state for Pakistan. Lord Mountbatten, the Viceroy of India, presented a plan for the division of India into India and Pakistan, and the Indian leaders had no choice but to accept the division, as the Muslim League was adamant.
As a rule, Gandhi was opposed to the concept of partition as it contradicted his vision of religious unity. He conducted extensive dialogue with Muslim and Hindu community leaders, working to cool passions in northern India, as well as in Bengal. Gandhi’s arrival in Delhi, turned out to an important intervention in ending the rioting, he even visited Muslims areas to restore faith of the Muslim populace. He launched his last fast-unto-death on January 12, 1948, in Delhi asking that all communal violence be ended once and for all, Muslims homes be restored to them and that the payment of 550 million rupees be made to Pakistan.
It was feared that instability and insecurity in Pakistan would increase their anger against India, and violence would spread across the borders. He further feared that Hindus and Muslims would renew their enmity and that this would precipitate open civil war. After emotional debates with his life-long colleagues, Gandhi refused to budge, and the Government rescinded its policy and made the payment to Pakistan. Hindu, Muslim and Sikh community leaders, including the Rashtriya Swayamsevak Sangh and Hindu Mahasabha assured him that they would renounce violence and call for peace. Partition was also resisted by Muslim leaders like Kitchlew who called it a blatant “surrender of nationalism for communalism”.
Vallabhbhai Patel was however one of the first Congress leaders to accept the partition of India as a solution to the rising Muslim separatist movement led by Muhammad Ali Jinnah.
Following Gandhi’s and Congress’ approval of the Cabinet plan, Patel represented India on the Partition Council, where he oversaw the division of public assets, and selected the Indian
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council of ministers with Nehru. Patel later took the lead in organising relief and emergency supplies, establishing refugee camps and visiting the border areas with Pakistani leaders to encourage peace. Patel publicly warned officials against partiality and neglect.
The Constitution of India was finally adopted by the Constituent Assembly on 26th November 1949. On January 26, 1950, the Constitution came into force and Dr. Rajendra Prasad was elected the first President of India. C. Rajagopalachari became the first Indian Governor General after Lord Mount Batten in 1948. Both Prasad and Rajaji were the recipients of Bharat Ratna, the Indian government highest civilian award.
C. Rajagopalachari, Jawaharlal Nehru and Sardar Patel also formed the triumvirate which ruled India from 1948 to 1950. Prime Minister Nehru was intensely popular with the masses, but Patel enjoyed the loyalty and faith of rank and file Congressmen, state leaders and India’s civil services. Patel was a senior leader in the Constituent Assembly of India and was responsible in a large measure for shaping India’s constitution. Patel was a key force behind the appointment of Dr. B.R. Ambedkar as the chairman of the drafting committee, and the inclusion of leaders from a diverse political spectrum in the process of writing the constitution.
As the first Home Minister and Deputy Prime Minister of India, during the partition, Patel organised relief for refugees in Punjab and Delhi, and led efforts to restore peace across the nation. Patel took charge of the task to forge a united India from the 565 semi-autonomous princely states and British-era colonial provinces. Using frank diplomacy backed with the option (and the use) of military action, Patel’s leadership enabled the accession of almost every princely state. Hailed as the Iron Man of India, he is also remembered as the “Patron Saint” of India’s civil servants for establishing modern all-India services. Patel was also one of the earliest proponents of property rights and free enterprise in India.
Thus, the saga of Indian freedom came to an end as India woke up to freedom in the midnight of 14th August, 1947. The contribution of the lawyers and jurists in this struggle for liberty, equality, justice and truth however remains unparalleled.
C. Right to appear on behalf of others-The advocate Act of 1961 SS-29 & 30 Right of practice
The expression ‘right to practice’, in context of the legal profession refers to the exclusive right of persons enrolled as advocates to engage in practice of law before courts and tribunals.
In Re. Lily Isabel Thomas 1964CriLJ724 the Supreme Court equated “right to practice” with
“entitlement to practice”. This right enjoys protection at two levels:
General protection – Article 19(1)(g) of the Constitution of India protects the right of individuals to practice professions of their choice. As members of the legal profession, advocates partake in this right along with members of other trades, occupations and professions.
Specific Protection – Section 30 of the Advocates Act, 1961 confers on persons whose name is enrolled in the registers of State Bar Councils the right to practice before any court or tribunal in India including the Supreme Court. This section has been recently made effective through a notification issued by the Central Government.
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Section 29 of the Advocates Act makes the right of practice an exclusive right and precludes all persons other than advocates from practicing law.
Duties of an Advocate Duties towards the client
To accept a brief where the client is able to pay the fee and no conflict of interest or other reasonable justification exists
To not accept brief where there is a conflict of interest with the client unless a frank disclosure has been made to the client about such conflict.
To not appear in a matter where the advocate may be a witness
To not withdraw from an engagement except with sufficient cause and reasonable notice and to refund unearned fee upon such withdrawal.
To fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He is to defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.
To not foment litigation
To ensure adequate representation of the client’s interests
To tender the best legal advice according to his ability to the client
To be diligent in handling the client’s matters.
To ensure confidentiality of facts disclosed by the client.
To not take instructions from any person other than the client or his authorized agent.
To note enter an arrangement of contingent fee.
To not bid for or purchase any property which is being auctioned in execution of a decree in a suit or appeal if he has been engaged in the matter.
To not adjust fee payable to him by his client against his own personal liability to the client
To not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client.
To keep accurate accounts of the client’s money entrusted to him and to provide copies of such accounts.
To immediately intimate the client of any payment received on behalf of the client.
To not enter into arrangements whereby funds in his hands are converted into loans.
To not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client.
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To not appear for the opposite party in the same matter after withdrawing from an engagement.
Duties towards the court
To maintain a respectful attitude towards the courts and legal system, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.
To conduct himself with dignity and self-respect and to not be servile.
Whenever there is proper ground for serious complaint against a judicial officer, to submit such grievance to proper authorities as this is the duty of an advocate towards improving the legal system and keeping it efficient.
To not influence the decision of a court by any illegal or improper means and to avoid private communications with a judge relating to a pending case are forbidden.
To conduct himself as not merely a mouthpiece of the client, but an officer of the Court.
The advocate should dissuade the client from using unfair means and should refuse to represent a client who persists in use of such means.
To appear before the court only in the prescribed uniform and to not wear a band and gown except in court and other prescribed ceremonies.
To not appear before a court or tribunal where a close relative is a member.
To not represent an organization if the advocate is a member of the executive committee of the organization.
To not conduct a prosecution in such a manner as to knowingly secure the conviction of an innocent person.
Duty to opposite party
To make communications only through the opposite party’s advocate
To carry out all promises made even where it is not reduced in writing.
Duty to colleagues:
To not advertise or solicit work and to not indicate special positions, expertise, etc. in name plates, name boards, stationery, etc.
To not facilitate unauthorized practice of law.
To not take an unreasonably low fee where the client can afford to pay
To not accept an engagement in a matter where another advocate has already been engaged except with his consent or permission of the court
Duties to the society
Duty to facilitate legal education, training of young lawyers and research in legal discipline
Duty to render legal aid to those in need.
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D. Qualification, Disqualification, Removal and Right to pre-audience. SS.22, 23, 24 A and 26 of the Advocate Act, 1961.
Section 22 – Certificate for Enrolment. Section 22 of Advocates Act says that State Bar Council will provide a certificate of enrolment to those persons whose names are entered in the roll of advocate which is maintained by State Bar Council. And if a person wants to make changes regarding place of office or permanent address so they have to notify the change to the State Bar Council within the ninety days of change.
Section 23 of the Advocates Act, 1961 lays down provisions for the right of pre-audience.
Meaning Pre-audience
Dictionary meaning of Right of Pre-audience, pre-audience means right to be heard before another is heard.
Right of pre-audience under the Advocate Act:
(1) The Attorney-General of India shall have pre-audience over all other advocates.
(2) Subject to the provisions of sub-section (1), the Solicitor- General of India shall have pre- audience over all other advocates.
(3) Subject to the provisions of sub-sections (1) and (2), the Additional Solicitor-General of India shall have pre-audience over all other advocates.
(3A) Subject to the provisions of sub-sections (1), (2) and (3), the second Additional Solicitor- General of India shall have pre-audience over all other advocates.
(4) Subject to the provisions of sub-sections (1), (2), (3) and (3A), the Advocate-General of any State shall have pre-audience over all other advocates, and the right of pre-audience among Advocates-General inter se shall be determined by their respective seniority.
(5) Subject as aforesaid —
(i) senior advocates shall have pre-audience over other advocates; and
(ii) the right of pre-audience of senior advocates inter se shall be determined by their respective seniority.
What is Disqualification for enrolment? Section 24A of Advocates Act, 1961 Section 24A: Disqualification for enrolment
(1) No person shall be admitted as an advocate on a State roll:
(a) if he is convicted of an offence involving moral turpitude;
(b) if he is convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955;
(c) if he is dismissed or removed from employment or office under the State on any charge involving moral turpitude.
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Explanation: In this clause, the expression "State" shall have the meaning assigned to it under Article 12 of the Constitution:
PROVIDED that the disqualification for enrolment as aforesaid shall cease to have effect after a period of two years has elapsed since his release or dismissal or, as the case may be, removal.
(2) Nothing contained in sub-section (1) shall apply to a person who having been found guilty is dealt with under the provisions of the Probation of Offenders Act, 1958 (20 of 1958).
Section 26. Disposal of an application for admission as an Advocate.
(1) State Bar Council shall refer every application for admission as an advocate to its enrolment committee, and subject to the provisions of sub-section (2) and (3), [and to any direction that may be given in writing by the State Bar Council in this behalf] such committee shall dispose of the application in the prescribed manner:
2[Provided that the Bar Council of India may, if satisfied, either on a reference made to it in this behalf or otherwise, that any person has got his name entered on the roll of advocates by misrepresentation as to an essential fact or by fraud or undue influence, remove the name of such person from the roll of advocates after giving him an opportunity of being heard.]
(2) Where the enrolment committee of State Bar Council proposes to refuse any such application, it shall refer the application for opinion to the Bar Council of India and every such reference shall be accompanied by a statement of the grounds in support of the refusal of the application.
(3) The enrolment committee of State Bar Council shall dispose of any application referred to the Bar Council of India under sub-section (2) in conformity with the opinion of the Bar Council of India.
[(4) Where the enrolment committee of a State Bar Council has refused any application for admission as an advocate on its roll, the State Bar Council shall as soon as may be, send intimation to all other State Bar Councils about such refusal stating the name, address and qualifications of the person whose application was refused and the grounds for the refusal.]
Recommendation Readings 1. Majumdar: Professional Ethics 2. Sociology of Law: K.L. Sharma
