CHAPTER - 1

INTRODUCTION

I. Prelude

The concept of law and justice is a s old a s h u m a n civilization. Law,

as is understood m u s t have the element of enforceability. There m u s t be
a machinery to enforce the law, which we call administration of justice, i
The term 'legal profession' if construed in its comprehensive form would
include within itself all those categories of persons who u s e technical
legal knowledge and skills in the course of performing their occupational
roles and duties. These categories are many, such a s - j u r i s t s (law
academics and scholars), judges, magistrates, prosecutors, law officers
a n d legal advisors attached to the government departments, legal
technicians and legal practitioners. But for the purpose of present study
it is proposed to confine our attention to the narrow sense of the term
t h a t is practicing lawyers - the advocates. The institution of lawyers is a s
old as civilization, though it existed in different forms in different times
t h a n what we have in today's developed legal systems. In ancient Hindu
treatises the researcher find the mention of representative suits b u t in
the absence of adequate historical evidence it cannot be said with
certainty a s to whether or not the representatives then did correspond to
or analogous to the advocates of the established legal systems of today.2
We do find clear historical evidence of establishment of legal profession
in its institutionalized form in the Greek and Roman civilizations.
Perhaps in ancient Greece their existed some persons who appeared in

1 B. K. Goswami, Legal Profession and Its Ethics, 1 (1995)

2 Ludo Rocher, "Lawyers" in Classical Hindu Law, Indian Bar Review, 1986, Vol. 13,
Nos. 3 & 4, pp. 353-370
courts for other person and got fee for the services rendered by them.3
Though the judicial system in ancient India was highly developed, it is
difficult to find out whether in ancient India there existed any class of
persons practising law - similar to a class which is now known as
lawyers.
The researcher finds two contradictory approaches on the issue."*
The first denies the existence of legal profession in India whereas other
view supports the idea of existence of legal profession. Those who deny
the existence of any such institution are headed by P. Vardachariar,
U. C. Sarkar and Ludo Rocher. The supporters are K. P. Jayaswal, P. V.
Kane, J u l i u s Jolly and Sir Ashutosh Mukherjee. K. P. Jayaswal t h i n k s
that professional lawyers ought to have existed from the days of Manu or
at least from the first century A. D. Manu, VIII. 169 show that
professional lawyers were already in existence in the time of Manava
Code.5 Parties to suit in ancient Hindu law in some circumstances did
have a right to be represented by other persons learned in law as per the
ancient Hindu texts by Narada, Brihaspati, Katayana, Manu, S h u k r a and
other eminent authorities on Hindu law.^ But because of the fact that the
earlier texts on D h a r m a s h a s t r a are not very explicit with regard to law in
general and legal procedure in particular, we are unable to conclude one
way or the other, as to whether those representative did constitute an
institution like we have in the established legal systems of the day.
In Kautilya's Arthasastra there are elaborate discussions about
administration of justice; but according to R. P. Kangle a commentator
on Arthashastra there is no mention in the Arthashastra about the
existence of legal profession. He said "there is no reference in the text to

3 B. K. Goswami, op. cit, at 8

4 Anirudh Prasad, Principles of Ethics of Legal Profession in India, 20 (2004); B. K.
Goswami, op. cit, at 8; Sunil Deshta and Kiran Deshta, Practical Advocacy of Law
24 (2006)
5 K. P. Jayaswal, Manu and Yajnavalkya : A Comparison and a Contrast (A Treatise
on the Basic Hindu Law), 288-89 (1931)
5 Ludo Rocher, op. cit. at 353
the professional lawyers. Most probably such a class did not exist."'^
However, according to Sir Ashutosh Mukherjee, Judge, Calcutta High
Court "legal profession existed in ancient India." To the same effect are
the text of Brihaspati, Katayana and Vyas. It is also fairly clear from
Buddhistic books t h a t the profession of lawyers existed in the first
century before the Christian Era; they were known as "sellers of law" or
"traders of law" who explained and re-explained, argued a n d reargued.^
During Mughal period certain historians admit that there were people
who functioned a s lawyers. The Vakils acted more a s agents for
principals t h a n the lawyers.
The m o d e m law and its allied institutions of British model were
injected into Indian system by the British colonial masters, purely with
the ulterior motive of strengthening their political and administrative
hold over this colony. The British introduced their system of legal
profession in India for the first time in the last part of eighteenth
century, but it was in rudimentary form and within limited scope. In
course of time legal profession h a s taken the present shape. After
independence, with the coming into force of the Constitution of India in
1950 and the establishment of a Supreme Court of India the lawyers
community wanted a unified autonomous Bar with no class distinction
among lawyers. An All India Bar Committee was constituted in the year
1951 u n d e r the Chairmanship of Justice S. R. Das of the Supreme
Court. The Committee submitted its report in 1953 and recommended
the establishment of All India Bar Council and a common roll of
advocates; a right to practice in any part of the country and in any court
including the Supreme Court. It is only in 1961 when the Advocates Act
gave autonomy to the Bar Councils to administer and regulate the legal
profession. The t a s k s of admission to the profession, regulating their

7 R. P. Kangle, Kautilya's Arthasastra, Part III, p. 220.

8 B. K. Goswami, op. cit. at 8-9; Sunil Deshta and Kiran Deshta, op. cit. at 25; see
also Anirudh Prasad, op. cit. at 22
conduct, disciplining for professionals or other misconducts,
improvement of the profession a s well a s initiating and supporting law
reforms are all now entrusted to the Bars.
Legal profession is being regarded as disagreeable necessity rather
t h a n a vital profession. It is a solemn and serious occupation. It is a
great a n d noble calling and all those who belong to it are its honourable
members. It plays a n important role in the administration of justice. It is
an excellent device to serve the public pursuit. In other words, public
service is the primary aim of legal profession and gaining livelihood is
incidental thereto. It aims broadly at understanding the proper
functioning of law in the society. The legal profession is different from
other professions in that what the lawyers do, affects not only a n
individual b u t the administration of justice which is the foundation of
the civilized society. It is not a money-making occupation b u t a b r a n c h of
administration of justice. Since it is not a business, a lawyer cannot
solicit work or advertise either directly or indirectly. The legal profession
is the most independent one. A member of the legal profession never
hesitates to condemn t5T"anny or injustice. A lawyer s t a n d s for justice
more t h a n a judge, a s he pleads for it. It is a wrong belief t h a t lawyers
promote dispute and differences in the society. Legal profession is not to
create dispute b u t to settle the disputes whenever they arise. In fact
lawyers are the peacemakers in the society. In performing his task, the
advocate is expected to act without fear or favour and conduct himself
with dignity and decorum showing due respect and courtesy to the court.
The profession of law is a liberal profession because the primary
aim of the advocate is not to make gain, but to secure justice for his
client by pleading his case. The great lawyer will p u r s u e a n d defend to
the u t m o s t the rights to his client. He will represent the high and mighty
and the poor and the lowly with the same vigour. He will champion the
cause of the individual against another private person or against the
Government itself. Whether the cause be popular or not, he comes
forward so that the individual may have a fair hearing. He will seek to
s u p p r e s s the power of the whole of the government so that the rights of
the individual will be safeguarded in order t h a t the rights of all are more
secure. There is in all this a realization that each individual is a link in
the chain of society. If one link is broken, the chain will surely break.
Both as a leading member of the intelligence of the society and a
responsible citizen, the lawyer h a s to conduct himself a s a model for
others both in his professional and his private and public life. The society
h a s a right to expect of him such ideal behaviour. Hence, the lawyer
interest does not only lie in private responsibilities. The dedicated lawyer
is also active in public affairs. In terms of community service, from the
earliest days of our glorious history to the present, the lawyer is the
legislator, the policy maker and the judge. He, above all, realizes the
necessity for public service. He not only answers the call for, but actively
seeks public service in the lowliest bar committee a n d in the most
responsible public office.

Apart from the spirit of public service, a profession h a s two

additional distinctive characteristics namely, learning a n d organization.
Traditionally, the legal profession is a learned profession pursuing a
learned art. It is this learning which sets a profession apart from more
"calling" or "occupation". A lawyer m u s t be a learned and cultured m a n
a n d he should be more t h a n a skilled a n d resourceful craftsman because
he h a s to perform his many and difficult duties arising from his complex
obligations to his profession, to the courts, to his clients, to society at
large and to himself. The legal profession in particular is the exercise of
certain powers, skills experience and technical knowledge for the benefit
of society at large. The concept of profession, calls for an all inclusive,
responsible and self-conscious professional organization which not only
watches over the profession and its interests, but also serves society in
that it police its members, insists on the maintenance of adequate
standards of learning, competence, and professional department
prevents the admission to the profession of unqualified person, and
d e m a n d s as well as frequently initiates the removal of unworthy persons
from its rank.
In early August, 1983, a group of lawyers, doctors, teachers and
journalists in New Delhi assembled to discuss a matter which disturbed
them all intensely, namely, they felt to re-orient the professions. They
shared a disconcerting feeling t h a t the so called learned and noble
professions on which the orderly progress of the country is very m u c h
dependent are drifting away from their commitment to social service and
are fast becoming exploitative, money making occupations devoid of
h u m a n i s m , nobility and devotion to h u m a n welfare. Canvassing for a
public sector in the legal profession, the report of the Gujarat Legal Aid
Committee (1971) presented a rather unpleasant state of affairs
concerning the legal profession. The report states:
"There is one difficulty which might dangerously imperial the
efficacy of the legal service programme unless some solution is
found to resolve it satisfactorily. This difficulty arises from the
mode of functioning of the legal profession . . . Today, we find that
the law of supply a n d demand operates in all its naked fury in the
legal profession. There is practically no limit to the fees which the
lawyer may charge to his client. If a litigant wants to engage one of
the topmost lawyers, he would have to pay the most exorbitant fees
which may be demanded by the lawyer."
The Committee, therefore, felt that some form of social control of
the profession h a s to be introduced, to give quality representation to the
poor. On the other hand, the Expert Committee on Legal Aid appointed
by the Government of India in its report entitled "Processual Justice to
the People (1973)" sought statutory compulsion on every advocate to do a
specified minimum of legal aid cases and failure to do so should be
regarded a s professional misconduct for which stern disciplinary action
might be taken.
 The Expert Committee Report on Legal Aid also suggested
reorganization of Legal Profession to serve and instrument of social
reform. Emphasizing the need to change the professional set-up for
service to the people, the Committee argued that "the only alternative is
to exercise some form of social control, formal as well as informal which
would aim at reducing the costs of legal services." In this respect the
report strongly advocated the creation of a public sector in the profession
which may compete with, and provide a reasonably priced alternative to
the private legal services offered at inflated cost. The Committee also
wanted the legal services requirements of Government and public sector
corporations is given only to public sector lawyers until such time a s the
private Bar is prepared to offer its services at tolerable rates.

From the observations and findings of the expert Committees, it is

clearly evident t h a t popular dissatisfaction with legal profession arise out
of :-
(i) the increasingly high cost of legal service;
(ii) the uneven distribution of legal services and the monopoly of
work with few lawyers at the top;
(iii) the non-availability of competent legal services to the poor;
(iv) the inequality in the quality of legal representation and the
consequent prospects for denied or miscarriage of justice;
(v) toutism, deception and exploitation in the delivery of legal
services;
(vi) relative indifference of the Bar to m a t t e r s of public interest and
social justice; and
(vii) neglect of law reform activities and opposition to change in
judicial proceedings.
There is no doubt t h a t the legal profession is passing through a
crises not only in India b u t also in most other countries of the world
which share the Anglo-American legal traditions. The legal system a s well
as the legal profession which were the products of capitalist and
 8

individualist forces of post-industrial era simply could not adjust

themselves to the d e m a n d s of contemporary welfare societies in which
the values are not necessarily based on freedom of contract and right to
property. The Bar of the country till recently was dominated by certain
u p p e r castes a n d classes. The phraseology of our jurisprudence allowed
these classes to maintain the idea of justice to all while concealing the
subtle exploitation against the ignorant and the indigent. Even those who
believed t h a t they were defending the system to serve social good were to
a large extent deceiving themselves. Indeed the lawyers are in the thick of
crises in which they do not react, they might as well be swept off their
feet by the new consciousness of rights, freedom and equality moving the
long suffering silent majority. The major problem with the Indian legal
process today is t h a t it is slow and dilatory. It needs to be overhauled
and modernized to meet the needs of a modern democracy and
liberalized economy poised for takeoff. We m u s t remember t h a t a user-
friendly legal system needs a highly competent and committed legal
profession.

The big question today is that whether the lawyer is conscious of

the crisis and the challenges involved. Indications are that a substantial
n u m b e r of t h e m are not. It is not entirely his fault. After all he is the
product of the system and w a n t s to avoid the insecurity and uncertainty
which are inevitable with change. It is evident from different studies t h a t
the composition of the Indian Bar h a s changed substantially since
Independence. An increasing n u m b e r of lawyers from the backward
strata of society aware of the constitutional promise, are today fighting
litigations generally for the unrepresented and poor sections who till
recently were priced out of justice system. Women who constitute half
the population are now joining the profession which h a s all along been a
male preserve. State initiative in legal aid to the poor h a s provided,
though inadequately, funds and organization facilitating better access to
justice. Judicial activism which helped to forge new tools a n d strategies
including public interest litigation gave a new t h r u s t to lawyers seeking
better opportunities to serve the common people. Further, at present the
pace of development and progress in our country in affecting the society
economically and in social reactions. Law and sociological conditions
mutually influence each other. Since the early 1990's the globalization of
everything started to come in effect and it affected almost all walks of life
directly or indirectly even though now slowly but steadily. No one can
escape from its effect. In society liberalization of economic policy, after
Duncle's proposal with its resultant World Trade Organisation, massive
changes have taken place particularly due to incoming of the
multinational companies in consumer products and m a r k e t s which h a s
directly influenced the middle class of the nation. It affected also our
National Legal System. Hence, the professional in legal fields cannot sit
tightly closing the door and windows of their Bar and Court rooms.
Today, n u m e r o u s laws control and affect our activities in life. Hence,
legal profession h a s to be sensitive to the merging social a n d economic
trends which regulate affairs of the society. Hence, we in the legal
profession h a s to alive to these new challenges. It would require u s to
continuous monitoring of emerging social and economic trend and to
readjust ourselves to the reality of life. We would have to regulate not
j u s t on the basis of past experience, but may have to pragmatically
foresee possible court of events, and try to regulate them in advance of
their occurrence. It m u s t be forgotten that the legal profession has
always been held in high esteem and its members have played an
enviable role in public life. The regard for legal and judicial systems in
this country in no small measure due to the tireless role played by the
stalwarts in the profession to strengthen them. They look their profession
seriously and practiced it with dignity, deference and devotion. If the
profession is to survive in the changed scenario, the judicial system h a s
to be vitalized. No service will be small in making the system efficient,
effective and credible. The casualness and indifference with which some
 10

members practice the profession are certainly not calculated to achieve

t h a t purpose or to enhance the prestige either of the profession or of the
institution they are serving. If people lose confidence in the profession on
account of the deviant ways of some of its members, it is not only the
profession which will suffer b u t also the administration of justice a s a
whole. Hence, it is for the members of the profession to respect and take
the corrective steps in time and also spare the courts from the
u n p l e a s a n t duty. Thus, the lawyers a n d the legal institutions have to
create suitable roles to retain relevance in society. On social
responsibility front, there is a need to create better awareness and
dedication among the lawyers. One should not forget t h a t the o u t p u t in
terms of respect, esteem, honour and nobility conferred on legal
profession by the society is directly proportional to the level of input of
response towards social responsibilities by the legal profession. The path
of social responsibilities is not a bed of roses. It is a h a z a r d o u s path. It is
a path of sacrifice, service, devotion a n d dedication. It is a p a t h where
duties are performed not with an eye on the r e t u r n s or the rewards. The
greatest reward is the satisfaction that one h a s done his duty, and one is
regarded so in the eyes of others.
The lawyers in India are stratified not only on the basis of their
skills, influence, prestige and wealth, b u t also in terms of their
caste/community, family status, religion, rural u r b a n background and
affiliation to political groups. The division exists between the senior and
junior advocates, mufossil and city lawyers, trial and appellate lawyers.
Though these different types of stratification also result in lock
commonality of interests between professionals, these are not m u c h of
our concern for the present study. The study would be confined only to
that type of divide within the profession that weakens the profession,
organisation, erodes the foundation of its strength and acts as an
impediment to its emergence as a unified force to fulfill its obligations to
the society in general and to the profession in particular.
 11

The researcher h a s made an earnest endeavour to analyse the

various factors such as the personal, social, economic, educational,
familial and recreational background of lawyers of Shimla town on the
basis of the data collected. A sample size of 200 lawyers (respondents)
h a s been taken randomly. The researcher served questionnaire on them
with the purpose to have their views on different aspects, that is their
(personal information such a s sex, area (urban or rural), income,
educational background of the parents, (ii) social background (iii)
economic background, (iv) impact of globalization on legal profession etc.
etc. The study clearly reveals that 70.5 per cent of respondents in
District Court Shimla and High Court of Himachal Pradesh are male;
61.5 per cent of the respondents belong to villages and 34.5 per cent of
the lawyers are the tax payers. On social background from, it is revealed
from the study that the father of all respondents are educated and
majority of the respondents are satisfied with their profession and are
keen to recommend their wards to adopt this profession. On economic
front, the respondents feel that there should be some standard criterion
for charging the fee in different cases. Majority of the respondents feel
that legal profession face various challenges viz. it is overcrowded,
corruption is prevalent at all level for which judicial officers, para-legal
professional etc. are responsible.

II. Review of Literature

The review of allied literature as well a s previous research work is
of p a r a m o u n t importance in research endeavour. Under this review of
related literature an attempt h a s been made to review literatures
available so as to draw some meaningful guidelines for the present
research work. The researcher finds few books and articles on the
subject. Much to the credit of academic interest of the intellectuals in
 12

relation to the subject, the works of B. K. Goswami,^ Anirudh Prasad, ^o

Raju Ramchandran, 11 P. R a m a n a t h a Aiyer, 12 Ravi Karan Singh, i^ K. L.
Sharma,i4 J. S. Gandhi, is Manish Arora,!^ K. Gururaja Chari,i7 Q. B.
Reddy.is K. Mony a n d K. Usha,!^ Saadiya Suleman,2o David Pannick,2i
M. R. Mallick,22 j . K. Mittal,23 Sunil Deshta and Kiran Deshta,24 K. P.
Jayaswal, 25 p. v . Kane, 26 u . C. Sarkar, 27 p. Varadachariar, 28 R. p.
Kangle,29 H . H . Wilson, A. C. Ganguly and N. D. Basu,30 etc. deserves
specific mention.
There is no systematic and detailed study on the subject so far.
Legal profession h a s been in vogue in India since ancient times. Since
time immemorial the concept of law h a s been evolving a n d inevitably
changing to meet the needs of the fast growing society. Our ancestors did
not distinguish between D h a r m a and the law. Dharma was the law. The
treatises of K. P. Jayaswal, P. V. Kane, U. C. Sarkar, P.
Vardachariar, Ludo Rocher, Kautilyan Arthasastra, Brihaspati,
Katyayana, Sukra, Vyas, etc. reveals that the legal profession in India

9 Legal Profession and its Ethics (1995)

10 Principles of Ethics of Legal Profession in India (2010)
11 Professional Ethics for Lawyers : Changing Profession, Changing Ethics (2014)
12 Legal & Professional Ethics (2003), Vol. 3
13 Dispensation of Justice : Role and Accountability of Judges and Advocates (2004)
14 Sociology of Law and Legal Profession (A Study of Relations between Lawyers and
their Clients) (1984)
15 Sociology of Legal Profession, Law and Legal System : The Indian Setting (1987)
16 Career of Law (2004)
17 Advocacy & Professional Ethics (2013)
18 Practical Advocacy of Law (2002)
19 Legal Drafting Conveyancing Professional Ethics and Advocacy (2001)
20 Professional Ethics & Advertising by Lawyers (2014)
21 Advocates (2006)
22 Advocates Act, 1961 (2000)
23 Practical Training for Law Students (2005)
24 Practical Advocacy of Law (2006)
25 Manu and Yajnavalkya : A Comparison and a Contrast (A Treatise on the Basic
Hindu Law) {193 \)
26 History of Dharamashastra [19^6)
27 Epochs in Hindu Legal History (1958)
28 The Hindu Judicial System (1956)
29 Kautilya's Arihasastra (1963), Part III
30 A Glossary of Legal and Revenue Terms (194)
 13

hold diverse opinion. There is a diverse opinion with regard to legal

profession in ancient India. K. P. Jayaswal observes t h a t professional
lawyers existed at least from the times of Manu Smriti and p e r h a p s even
earlier.31 The view point of the Indian Dean of D h a r a m s a s t r a , P. V. Kane
is completely different. Concerning the legal profession in ancient times,
he observes that no class of person akin to the modern counsel, solicitors
or legal practitioners who were regulated by the State existed. ^2
However, Kane too admits that, "this does not preclude the idea t h a t
persons well versed in the law of Smritis and procedure of the courts
were appointed (niyukta) to represent a party and place his case before
the court." An equally cautious opinion h a s been voiced by U. C. Sarkar :
"there is no sufficient indication that at the time of the Smritis there was
no legal profession in the modern sense of the term." 33 Similarly
P. Varadachariar observes that "it is not possible to say an3rthing a s to
the existence of a legal profession in ancient India." ^4 Further Ludo
Rocher observes t h a t "the ancient Hindu legal system was such t h a t a
legal profession not only did not exist, b u t that it was not called for and
hardly could have existed."35
In Kautilya's Arthasastra, there is elaborate discussion about
administration of justice, b u t according to R. P. Kangle,^^ a commentator
of Arthasastra there is no mention in the Arthasastra about the existence
of legal profession. He says, "there is no reference in the text to the
professional lawyers. Most probably, such a class did not exist."
However, according to Sir Ashutosh Mukherjee, legal profession existed
in ancient India. He observed, "as regard Hindu courts it is clear t h a t the

31 K. P. Jayaswal, Manu and Yajnavalkya : A Comparison and a Contract (A Treatise

on the Basic Hindu Law), 288-89 (1931)
32 P. V. Kane, History of Dharamashastra, 2 8 8 (1946)
33 U. C. Sarkar, Epochs in Hindu Legal History, 37 (1958); Ludo Rocher, "Lawyers in
Classical Hindu Law," III, Indian Bar Review, 355-56 (1986)
34 P. Varadachariar, The Hindu Judicial System, 156(1956)
35 Ludo Rocher, op. cit. at 383-402
36 R. P. Kangle, Kautilya Arthasastra, 2000 (1963), Part III
 14

legal profession existed in the seventh century of the Christian era when
Asahaya wrote his commentary on the Institutes of Narada. 37 To the
same effect are the text of Vrihasparti, Katayana, S u k r a and Vyas quoted
by R a g h u n a n d a n in Vyavahara Tatwa.^s To reiterate, it is also fairly clear
from the Buddhist books that the professional lawyers existed in the first
century before the Christian era; they were referred to a s 'sellers of law'
or 'traders of law.'^^
In Mughal period also there was difference of opinion with regard
to professional lawyers. W. H. Mooreland observes t h a t there was no
group of professional lawyers during the Mughal period, ^o Other
historians"^1 admit t h a t there were people who functioned a s lawyers,
though their functions and duties were not clearly defined. It is widely
acknowledged that the legal profession, a s it exists in India today, is a
product of the legal system which came into being with the advent of
British rule in India. In the initial stages. East India Company was not
very m u c h enthusiastic to allow expansion of the legal profession in this
country as its directors had the belief that more lawyers would bring an
increase in law suits and foment more disputes in the colonies."^2 Even in
the subsequent years the legal profession was not given any importance.
The legal profession became distinct in 1833 when a Law Commission
was appointed to ascertain and codify the laws of India. This was done
with a view to disassociate law and religion. The Legal Practitioners Act,
1846 was the first All-India law and landmark legislation, concerning the
pleaders in the Moffusil. The Act allowed for the first time attorneys and
barristers to plead in any of the Sadar Courts of the East India Company.

37 Joly, Narada Smriti, Book I, Verse 6 at p. 47

38 B. K. Goswami, Legal Profession and its Ethics, 8 (1995)
39 Id., at 8-9.
40 W. H. Mooreland, India at the Death ofAkbar, 33 (1962)
41 H. H. Wilson, A. C. Ganguly and N. D. Basu, A Glossary of Legal and Revenue
Terms, (1940)
42 Samuel Schimitteener, "A Sketch of the Development of the Legal Profession in
India," 13, Indian Bar Review, 310 (1986)
 15

The next important statute was the Legal Practitioners Act, 1853. The
Barristers and Attorneys of the Supreme Court were permitted to
practice in the Company's Courts, the indigenous Indian legal
practitioners were kept out of the three Supreme Courts. The next
important Act was legal Practitioners Act of 1879 which brought all
categories of legal practitioners in the High Court. The Act further
empowered the advocates, vakils a n d attorneys of the High Courts to
practice their profession in all the subordinate courts to enroll lawyers
for different courts a n d also make disciplinary proceedings against them.
Upto 1900, the legal profession was dominated by the Europeans.
However, by the beginning of the century it became Indian in
composition even in the highest r a n k s . It is a matter of pride for legal
profession in India t h a t our Bar h a s produced lawyers a n d J u d g e s of
unparalleled eminence. It is uncontroverted that the m e m b e r s of the
legal profession occupied very high positions in freedom movement. This
is particularly true when seen in the light of rich contributions made by
M. K. Gandhi, Gopal Krishan Gokhale, Lokmanya Bal Gangadhar Tilak,
Dr. Rajendra Prasad, Sardar Vallabhai Patel, Jawaharlal Nehru, B. R.
Ambbedkar, Sir Tej B a h a d u r Sapru, K. M. Munshi, M. C. Setalvad and
many others.
In 1923, the Government of India set u p the Indian Bar Committee
u n d e r the Chairmanship of retired Chief Justice Sir Edward Chamier of
Patna High Court. This Committee was asked to report on : (i) the
possibility of constituting an All India Bar, whether on an all India or
provincial basis a n d its structure etc. (ii) the possibility of removal of
distinction between advocates or barristers and vakils. On the first point,
the Committee reported that constitution of all India bar was not
possible, alternatively it recommended for establishment of a Bar Council
for each High Court. On the second point the Committee could not make
any specific recommendations because of sharp division among its
members.
 16

On the recommendations of Chamier Committee, the Indian Bar

Council Act, 1926 was passed with a view to amend and consolidate the
law relating to legal practitioners. The Act introduced inter-alia separate
provisions for advocates and separate Bar Council for every High Court.
We witness a change in legal profession, the Bar Council Act, 1926 and
m a n y other developments thereafter could not satisfy the aspiration of
the legal profession and the demand for an "autonomous and unified" All
India Bar was realised on the basis of a Committee which was
constituted in 1951 u n d e r the Chairmanship of Justice S. R. Das of the
Supreme Court. The Committee finalized and submitted its report in
1953. It recommended creation of an All India Bar with common roll on
all advocates and also the Bar Councils for States with larger autonomy
but it did not feel the need for a separate Bar Council for Supreme Court.
Similarly, the Fifth Law Commission in its Fourteenth Report submitted
in 1958, recommended for establishment of the non-graduates pleaders
or Mukhtars. It also recommended for the division of Bar into senior
advocates and advocates. In 1959, the Legal Practitioner's Bill
incorporating the recommendations was introduced in the Parliament. To
give effect to the recommendations of All India Bar Committee, the
Parliament enacted the Advocates Act, 1961. The Act amended and
codified the law relating to legal practitioners and provided for
constitution of a n All India Bar. The complete control and jurisdiction
regarding enrolment of advocates and discipline of advocates, which h a s
all along been with the High Courts, stood transferred to the Bar Council
of India and the State Bar Councils. The Bar Councils have become
completely a u t o n o m o u s bodies with elected representatives of advocates.
Each State Bar Council sends a representative to the Bar Council of
India.
The Act which extends to the whole of India provides a federal
structure for legal profession with one category of lawyers known a s
advocates. It provides for a n u m b e r of State Bar Councils and a Bar
 17

Council of India. An advocate is initially enrolled with the State Bar

Council a n d a common roll of all the advocates in the country is
maintained by the Bar Council of India. No advocate can get himself
enrolled with more t h a n one State Bar Council, though certainly he can
get himself transferred from the State Bar Council to another and is also
entitled to appear before any Court or Tribunal throughout the country.
The State Bar Councils are named after their States, though there are
few Bar Councils common to two or more States. A State Bar Council
consists of 15 to 2 5 members (depending upon the total n u m b e r of
advocates enrolled with that Bar Council) elected from amongst
advocates on the electoral roll of that Bar Council. The Bar Councils are
a u t o n o m o u s bodies. The All India Bar Council known a s the Bar Council
of India consists of the Attorney General of India, the Solicitor General of
India a n d one member elected by each State Bar Council from amongst
its members. In 1976, during emergency the Act was amended by Act
107 of 1976 to accommodate one representative of the Central
Government in the Bar Council. But in 1977 the Amendment Act 38 of
1977 a n d said provision was repealed.

Even though India has an organised Bar and disciplinary

authorities to regulate the profession, we cannot r u n away from the
reality that the reputation of the Bar is today at the lowest ebb.
Individual lawyers have been seen with some sort of suspicion. There are
n u m e r o u s r e a s o n s for the same. The main reason is the deviant
behaviour from the accepted s t a n d a r d s of professional ethics. But this
deviant behavior is mostly due to actual ignorance of ethical
requirements. Further there is practically no limit to the fees which a
lawyer may charge to his client. If a litigant wants to engage one of the
topmost lawyers, he would have to pay exorbitant fees which may be
demanded by the lawyer. This directly leads to inequality in the quality of
legal representation a s between the rich and the poor. Professional
misbehavior can be minimized through self-policing and legal education.
 18

The Bar Councils a n d Associations through its disciplinary committees

have great responsibility in preserving the nobility and honour of the
profession. Unless the lawyer observes the highest standards of
professional ethics he cannot earn the respect of the community nor do
his peers in the profession accept him a s an outstanding lawyer. The
present declining s t a n d a r d s of lawyers are to be properly checked from
within before it is wrecked from outside. Hence, the need of hour is t h a t
the members of the profession should examine and take corrective
m e a s u r e s in time.
There may be some theoretical or academic writings which have
probed the problem partially and randomly on certain aspect of the
chosen problem. There is no socio-empirical legal research available on
the subject. The utility of the present work conceptual a s well a s
practical lies in this respect.
The secondary sources that have been referred to and relied upon
are articles written by eminent judges, jurists, academicians, lawyers,
journalists, etc., published in leading law journals like, Indian Bar
Review, J o u r n a l of Indian Law Institute, Civil and Military Law J o u r n a l ,
Indian J o u r n a l of Contemporary Law, Naya Deep, Cuttack Law Times,
Law and Society Review, The Lawyers and All India Reporters. The
secondary sources in the study are a s important a s the primary source
because these sources provided the researcher with scholastic viewpoint
on the topic u n d e r study.
There are also n u m b e r of articles on the topic by many writers like
Ludo Rocher,43 Samuel Schmittheener, ^4 Sunil Deshta, "^^ Hari Om

43 Lawyers in Classical Hindu Law, Law and Society Review, 1968-69, Vol. Ill, No. 3 86
4
44 A Sketch of the Development of Legal Profession in India, Indian Bar Review, 1986,
Vo. 13, Nos. 3 &4, pp. 353-373
45 Legal Profession in India : Retrospect and Prospect, Indian Bar Review, April-
September 2 0 0 1 , vol. XXVIII, Nos. 2 & 3.
 19

Gupta and Inderpreeet S. Josthi, ^6 N . R. Madhava Menon, ^7 L. M .

Singhvi, ^8 David Annoussamy, '^^ Pradeep Kumar Mitra, ^o Justice S.
P a d m a n a b h a n , 5i S. M. S u b h a n , 52 Q. Geethisha, 53 s . Prithvi Raj, ^4 c .
Rama Swamy Sarma, ^5 Ranu Basu, 56 p. p. Rao, 57 Atul Setalvad, 58 R.
K. Mahajan, 59 Etc. Though these writing are concerned with a n u m b e r
of aspects of legal profession, only few provide a critical view and most of
them are informative and descriptive.

III. Objectives of the Study

1. To remove the confusion on the role of lawyers in society
2. To study judicial a n d legislative attitudes on legal profession.
3. To remove the doubts and highlight loopholes in the law dealing
with lawyers and associated matters.
4. To find out judicial approach on lawyers strike and its
compatibility with contemporary developments.
5. To device an ideal system of legal profession in the country.
6. To study the s t a t u s of lawyers/bar in Shimla District.

46 The Legal Profession : A Critique, Indian Journal of Contemporary Law, 1998, Vol.
II, pp. 101-102
47 Professional Ethics Education : The Law School Experience, Lex ET JURIS,
J a n u a r y , 1989
48 The Legal Profession in India a n d Its Social Responsibilities, Indian Bar Review,
1969, Vol. 6.
49 The Profession of Advocates in France, Indian Bar Review, 1984, Vol. 11 (2)
50 The Legal Profession, Law Quarterly, December 1979, Vol. 16, No. 4, pp. 293-299.
51 Legal Profession, Supreme Court Weekly Reporter, 1979, J o u r n a l Section, Vol. 33,
pp. 1-10
52 Role of Lawyers in a Developing Society, Andhra Law Times, 2007, Vol. 5, J o u r n a l
Section, pp. 14-16
53 Disciplining the Lawyers : Law and Professional Ethics, Cochin University Law
Review, 2003, pp. 153-223.
54 Lawyer's Role in Upholding Democracy, Cuttack Law Times, 1987, Vol. 6 3 .
55 Lawyers Role in Present Society, Andhra Law Times, 1987, Vol. II, p. 14.
56 Advertising by Solicitors, The Lawyers, May 1987, p. 2 1 .
57 Boycott of Courts by Lawyers in Gururaja Chari, Advocacy and Profession Ethics
699 (2000).
58 Courts Boycott : Are they Proper?, Lex Et Juris, April 1987, p. 13
59 Boycott bv Lawyers : Legitimacy and Alternatives, Supreme Court Journal, 1989,
Vol. 1, p. 2.
 20

IV. Hypothesis
Hypothesis is a tentative generalization the validity of which h a s to
be tested. It provides a direction to the inquiry, aids in establishing a link
between theory and practice and helps to delimit the field of inquiry by
singling out the pertinent facts on which to concentrate. The study h a s
been u n d e r t a k e n to put to test the following hypotheses regarding legal
profession and its social responsibilities.
(i) That the lawyers' role in society h a s been misunderstood by the
society as well a s by the Government,
(ii) That the existing legal position as embodied in the Advocates
Act, 1961 and Bar Council of India Rules, 1975 is inadequate,
(iii) That there is gap between the courts and the lawyers on
matters, specifically social responsibilities, connected with legal
profession,
(iv) That the social background of lawyers in Shimla is not high.
(v) That there is a wide gap between lawyers and inhabitants of
Shimla
(vi) That the legal profession is in unsatisfactory state.

V. Universe of the Study

No doubt the lawyers are an organized group of India in the sense
that the Bar Councils are main i n s t r u m e n t s of their solidarity. But they
are not observed to be united for commonality of interest of the legal
profession a s whole. The legal profession in India h a s yet to show that it
is a united organization for the service to the community in general and
to the profession itself, in particular. The main focus of the researcher
remained on empirical aspect which is analysed on the basis of data
collected. The researcher h a s selected Shimla town in order to study the
socio-legal position of the lawyers. District Court Shimla and High Court
of Himachal Pradesh constituted the universe of the study. The
responses of the lawyers were secured through interview schedule

)2o^oH ;..
 21

covering all important aspects in this connection. For theoretical aspect,

the legal and professional position h a s been studied taking India as a
whole. The question of the interview schedule included personal, social,
economic, educational, familial and recreational backgrounds of lawyers.

VI. Research Methodology

The research h a s devised the methodology of the present study in
such a manner that the status of legal position and lawyers'
responsibilities can be investigated in its true perspective. The
methodology primarily consists of two parts. The first part relates to
examination of theoretical aspect of the legal profession which mainly
lays emphasis on the evolutionary p h a s e s of legal profession, necessity of
professional ethics, dimensions of legal profession vis-a-vis social
responsibilities etc. etc. In order to know about the theoretical aspect of
this scheme, researcher h a s used secondary information which primarily
includes books of eminent authors. J o u r n a l s , Reports of the Committees,
Newspapers, Projects, Reports of Law Commission, etc. etc. The second
part relates to practical aspect of legal profession. It is purely exploratory
and evaluative in nature. The researcher h a s collected first hand
information with regard to the social background of lawyers in Shimla
town. The first h a n d information h a s been collected from 200 advocates
of Shimla town. The selection of respondents h a s been made through
random sampling method. The reason for resorting to this method is t h a t
in Shimla town every segment of population resides and the questions
related to personal, social, economic, educational, familial and
recreational backgrounds of lawyers.

The data collected from various sources, original as well as

secondary sources have been analysed to a s s e s s and evaluate the legal
and professional position of lawyers and find answers to the hypotheses
raised in the present study and make valuable suggestions to accelerate
 22

the working of legal profession and the social responsibilities of the

lawyers.

VII. S c h e m e of Study
The study comprises of six chapters. The present chapter
introduces the scheme of legal profession and contains review of
literature, objectives of the study, h5^otheses, universe of the study,
research methodology adopted to testify the hypotheses.
Chapter 2 is devoted to trace the genesis of legal profession. The
chapter discloses that legal profession h a s been in vogue in India since
ancient times. The chapter is also devoted to trace the origin and
development of legal profession in United Kingdom, United States and
other countries. It also deals with the structure of legal profession and
Bar in India.
Chapter 3 exclusively deals with the necessity of ethics and
emerging challenges. In this chapter, an endeavour is made to find out
the meaning of ethics and legal ethics. A detailed discussion on rights,
duties, privileges a n d disabilities of lawyers have been made. The chapter
also deals with the decided cases on professional ethics. Efforts have also
been made to analyse the cases with regard to misconduct by lawyers.
The study also traces of background of lawyers' strike, statistical picture
of lawyers strike and constitutional protection to lawyers.
Chapter 4 is entitled as "Dimensions of Legal Profession : A Call
Towards Social Responsibilities." In this chapter, the n a t u r e of social
responsibility, the constitutional m a n d a t e s and the judicial response to
this aspect form the special parts of this study with special emphasis.
The chapter also deals with the areas of social responsibilities.
Chapter 5 is an empirical study of the social background of lawyers in
Shimla. It is exploratory and evaluative in n a t u r e . It is a field study of
200 lawyers of District Court Shimla and High Court of Himachal
 23

Pradesh with the objective to know the lawyers familial, social,

educational and economic background.
Chapter 6 contains conclusions of the study a n d discussion in
detail the suggestions found necessary by the researcher to make the
legal profession more effective.