A SYMPATHETIC JUSTICE DELIVERY SYSTEM PART 4

by S.D. Dave

The 16th century European audience was fond of a play in which a young lady, a law-intern, saves Antonio from the wicked and blood-thirsty hands of Shylock, a Jewish money-lender, by creating a dilemma for him – could he recover a pound of flesh from Antonio’s body without shedding a drop of blood? Since his contract only entitled him to the flesh and not the blood. Shylock, the money-lender could never do that and Antonio walks out free. The lady, Portia was an intern of Law. The readers around the years following 1869 were reading the story related to Dr. Manette; Miss Lucie Manette, Sydney Carter and Charles Darney, as told by Charles Dickens. Sydney, living an unsubstantial and unhappy life loves Lucy, who marries Charles Darney, a one time accused of serious crime, who ultimately came to be pronounced not guilty because of a little trick of showing some resemblance of faces in the Court-room, played by Sydney, who once again, by the same trick showing perfect resemblance of two faces releases Darney from Bastil and later on from the Guillotine, and ultimately goes to the Guillotine so that Darney and Lucy could live the rest of their lives peacefully at London. Sydney Carter was a Barrister with practically no work. It was on the 7th June, 1895, that a young Indian, traveling from Durban to Pretoria in a first class coach of the train, was thrown out on the railway station Pietermaritzburg by a British railway officer, only because he was not born with a white skin. On the next day he came to be severely assaulted while traveling by tram from Charlestown to Johannesburg, because he was a ‘Sami’ not born white. These two events followed in a quick succession, proved later on, to be enough for shaking the foundation of the British Empire based on imperialistic racism. The non-white ‘Sami’ was Mr. M. K. Gandhi, the most successful of the Barristers worldwide. A British endowed with high skills in politics, bureaucracy, law-making and diplomacy prefers to work as a driver of a Red Cross ambulance during the Second World War, forgetting all the other skills in which he had a great expertise and working on only one of them, i.e. the driving of an ambulance for the services of the mankind. He was Sir Stafford Crips, known for his diplomatic skills and the ability to win the most of the contested legal battles in the history in England, which made him the highest paid Lawyer in his country. Sir Stafford Crips was a Barrister and an ambulance driver, for a part of his life. These characters, two fictitious and two real,, by not saying a word as to what a Lawyer should or could do, have educate mankind, making them wiser and prudent. The Institution which renders legal assistance to the litigants, comprising the people learned at law is too neatly understood to call for a specific or a comprehensive definition, especially when the very many aspects related to law and legal profession have been nicely discussed and aptly placed by a plethora of decisions rendered by the highest legal tribunals of the world, which should lead the Lawyers on to the path of ideal and benevolent standards. In India, the terms like ‘Lawyer’, ‘Pleader’, ‘Advocate’ and ‘Attorney’ and so forth, have come to be defined by the statutory provisions. But even before their birth, some countries had thought it fit to ‘Regulate the profession by issuing Regulations or Rules’. In India, way back in the year 1793, the Colonial administration under Lord Cornwallis deemed it expedient to bring The Regulation VII of 1793, with the object of regulating the legal profession. Lord Cornwallis was intrigued with the knowledge he had gathered so far, regarding the working of the Justice Delivery System in India and had noticed that it was inefficient and too costly to the litigants, in absence of the required Rules. To quote Lord Cornwallis, “Weak indeed is the administration of justice in a country where there are no such establishments.” He had also learnt that, since the year 1772, the Native Law Officers, Pundits, Kazis and Muftis had been playing a significant role in the administration of justice. The Regulation of 1793 brought in, with a view to change the working of the judicial machinery, the Rules to ensure that these offices were filled in by the members of integrity and well-versed in law. Some of the Supreme Court pronouncements do speak regarding the nature of the legal profession. According to Justice R. M. Lodha, in Dhanraj Singh Chaudhary v. Nathulal Vishwakarma [(2012) 1 SCC 741], “The legal profession is a noble profession. A person practicing law has to practice in the spirit of honesty and not in the spirit of mischief-making or money-getting.” In a generous yet self explanatory vocabulary, Justice J. M. Panchal in Sudha v. Chennai Advocate Association [(2010) 14 SCC 114] would say, “The legal profession is a solemn and serious occupation…..the legal profession is different from other profession in that what Lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilized society….the Lawyer has to conduct himself as a model for others both in his professional and in his private and public life.” Justice K. D. Thomas talks of the expectations of the citizenary when he writes for the Bench in Ramon Services (P) Ltd.              v. Subhash Kapoor [(2001) 1 SCC 118], “Persons belonging to the legal profession are concededly the elite of the society. They have always been in the vanguard of progress and development, of not only law but the polity as a whole. Citizenary looks at them with hope and expectations for traversing on the new paths and virgin fields to be marched on by society.” Justice D. A. Desai accepts the legal profession as having a monopolistic character and that very character, according to him, inhere certain traditions. Justice Desai while speaking for the Bench in M. Veerbhadra Rao v. Tek Chand [(1984) Supp SCC 571] says, “Legal profession is monopolistic in nature and this monopoly inheres certain high traditions which the members are expected to upkeep and uphold.” What the Supreme Court has said over the years could be broadly segregated in two parts each espousing a principle. Firstly, it speaks regarding the monopolistic character of the Lawyer’s profession and then speaks of the high traditions which the members of the profession are expected to upkeep and uphold. The Right of Practice in context of the legal profession connotes the exclusive right of the persons enrolled as advocates to engage in practice of law before Courts and Tribunals. In Re. Lily Isabel Thomas [(1964) Cri.L.J. 724] the Supreme Court has thought it just and proper to equate the ‘right to practice’ with ‘entitlement to practice’. It is said that this right enjoys the protection at two levels; firstly, Article 19(1)(g) of the Constitution of India protects the right of individuals to practice professions of their choice and therefore as members of the legal profession, advocates partake in this right along with the members of trades, occupations and professions. Second, and more specifically, Section 30 of The Advocates Act, 1961, confers on the persons enrolled in the registers of the State Bar Councils, the right to practice law before any Court or Tribunal in India including the Supreme Court. Similar is the protection ordained by Section 29 of the Act of 1961, which makes the right of practicing law an exclusive right and precludes all persons other than advocates from practising law. Thus the pronouncements of the Supreme Court along with the Statutory Provisions confer monopolistic rights on the members of the Bar, but as usual every monopolistic activity is required to be regulated by rules framed and traditions made and upheld by that group of people in whose hands lies the monopolistic power. It is because of this that we shall see many expectations spelt out by the judiciary, the jurists and the Lawyers themselves. Justice D. A. Desai thus speaks of high traditions to be maintained by the Bar, but this long manifest of cherished values would appear to be incomplete without reference to two fundamental characteristics -- of being a helping hand to the society and acquiring complete gentlemanliness. Justice R. P. Sethi in R. D. Saxena v. Balram Prasad Sharma [(2000) 7 SCC 264], talks of a helping hand. He writes, “The poor, uneducated and exploited mass of the people need a helping hand from the legal profession, admittedly acknowledged as a most respectable profession.” Justice P. D. Sawant, in Vinay Chandra Misra; In re. [(1995) 2 SCC 584], concentrates on gentlemanliness by recording a statement which appears to be perfectly axiomatic and reads thus; “A Lawyer has to be a gentleman first. His most valuable asset is the respect and goodwill he enjoys among his colleagues and in the Courts.” The oft-quoted case defining the role of the Lawyers, happens to be Rondel v. Worsley [(1967) 1 QB 443 (CA) of AJ], decided firstly by Lord Denning MR and later on by the House of Lords, the author of the Judgment being Lord Reid [(1969) IAC 191]. Lord Denning has said, “It is a mistake to suppose that he is the mouthpiece of his client to say what he wants, or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice.” Lord Reid would write, “Every counsel has the duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case.” While all of this places the legal profession on a high pedestal and raises it to lofty heights, it should not be understood to mean that there is no longer room left to explore more ideals. Specially when one speaks in the context of a Sympathetic Justice Delivery System. Over and above the knowledge of the substantive and procedural laws, the Lawyer must be aware of the wide-ranging public opinions related to the welfare of the people at large. He has to be mindful of the accepted public opinions and should be capable of adhering to the same in his day to day work. Any Lawyer, who would like to be enumerated as a member in this class, shall have to be aware of the socioeconomic standards of the litigants for whom he appears before the Courts or Tribunals for the redressal of their grievances. He should appreciate that the litigants come to the Court because of something fastened upon them as the only way out and not something coveted or preferred by them. Any litigant before he takes a jump has already ascertained the responsibilities which he shall have to perform. Securing the legal services, collection of requisite material, the formation of pleadings and collecting and proving the material as evidence are the real challenges standing in his way. A litigant is generally scared of the twin deterrents; the costs and the procrastination. A typical litigant can be compared to a patient who goes to the medical expert. He needs not a one time but periodical sympathetic treatment, encouragement and reassurance. These are the extra qualities in demand from the Lawyers. A complete study of the facts and law of the case presented to the Lawyer would result into a quick formulation of opinion, the choice of the line of action, and preparing dockets. This would, when once done perfectly, assist the Lawyer at all the subsequent stages. While speaking on moral grounds alone, the thinkers, rationalists and the moralists often do not hesitate in saying that a Lawyer should be away from those causes which appear to be unethical, immoral or palpably illegal. This propagation has been and is being combated, not only by the Lawyers but the jurists and the judges too, on the ground that a Lawyer, however honest and sincere, is not expected to prejudge a cause and to accept it only if it is bereft of any threads of illegality or immorality. A sympathetic Lawyer may not prejudge a cause, but by all possible professional standards he is required to tender to his client, honest opinion and frank advice and never to encourage dishonest, fictitious, collusive or luxury litigations. A sympathetic Lawyer shall have to refrain from seeking adjournments on flimsy grounds. This will to some extent be able to reduce the delay in deciding the matters. A sympathetic Lawyer must be conscious of the existing legal framework in India wherein the right to speedy trial has been recognised as a Fundamental Right, implicit in Article 21 of the Indian Constitution. In case of Maneka Gandhi v. Union of India [AIR 1978 SC 597], the Supreme Court, while issuing a number of directives to all concerned with the criminal trials in the country, has laid down, “No procedure can be regarded as reasonable, fair or just if it fails to ensure reasonably quick trial of the accused.” In Hussain Ara Khatoon v. State of Bihar [AIR 1971 SC 1369], the Supreme Court, “In order to fulfill its role as the guardian of the constitutional right of speedy trial” has issued guidelines and directives to the State of Bihar and others for speedy trial. Again the Supreme Court had thought it fit to reiterate in Sheela Barse v. Union of India [AIR 1986 SC 1773] regarding the implicitness of speedy trial as a Fundamental Right under Article 21 of the Constitution of India. A sympathetic Lawyer is expected to charge a fees which could be said to be fair and reasonable, regard being had to the nature and volume of the work assigned to him. The recent trends developed in the last two to three decades, in practically all the countries show the active participation of the Lawyers and the law firms rendering legal assistance Pro bono. They have taken a lead in utilizing their legal skills, resources and infrastructure for the services which are entirely Pro bono, giving the best results in causes involving highly contentious issues of great public value. A handbook edited by Siddharth Peter De Souza and published by The EBC Publishing Pvt. Ltd. in the year 2018, is a remarkable study on ‘Designing Socially Responsible Law Firms in India’. Indira Jaising v. Supreme Court of India [(2017) 9 SCC 766] is a case in which the Petitioner, a known name in the legal history of India; and one time Additional Solicitor General of India; and in practice in the Supreme Court of India since last several decades, was praying for the change in the system of designation of Senior Advocates by method of votes, which ultimately resulted in the issuance of the directions of taking the Pro bono work into consideration as the qualifying parameter. This pronouncement has given a fillip to the Pro bono work amongst the Advocates. It is well known that Champarty and Maintenance contracts are not legally enforceable in India. Champarty is generally an agreement for sharing the profits of litigation, between either of the two persons and a third person; in lieu of his services in kind or cash. In view of the consistent trend shown by the British Courts, Champarty has been defined as a bargain between a Plaintiff or a Defendant in a Suit and a third person, to divide between them the subject or the matter sued for in the event of the litigant being successful. Such contracts have been made non-enforceable as violative of public policy in many countries including U.K. As laid down in R. {Factor Tame Ltd. v. Secy. of State for Transport etc. [(2002) 4 All Er 97]} “Champarty survives as a rule of public policy, capable of rendering a contract unenforceable.” In Rattan Chand Hira Chand v. Askar Nawaz Jung [(1991) 3 SCC 67] Justice Sawant speaking for the Bench examines a case in which there was an agreement entered into, with the obvious purpose of influencing the authorities to procure a verdict in favour of a party. Justice Sawant has taken the view that this would be a contract against the public policy. Justice M. Fathima Beevi writing a concurring opinion makes it clear that a bargain, whereby one party is to assist another in recovering property and is to share in the proceeds of the action and such assistance is to be by the use of the influence with the administration, is against protection and promotion of public welfare and is opposed to public policy. It is therefore important that for a Lawyer to be sympathetic and honest should not agree to render his services for a share in the subject matter of the litigation. Such an agreement would not only be void but would be having enormous potential to bring the Lawyer in disrepute and to subject him to the disciplinary proceedings. These are some of the prominent characteristics of a Lawyer who is expected to be sympathetic, leaving in the background many other requisite qualities, which might come in the forefront as a result of advanced thinking or compulsive needs of the society. All the components of the sympathetic JDS shall have to wait and watch for such an emergence, which could be appreciated and put in action.

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Justice Adda was a part of the Cambridge Social Ventures Programme in the Cambridge Centre for Social Innovation at Cambridge Judge Business School 2016-17.