IN DEFENCE OF LAWYERS
BY ALLADI KUPPUSWAMI
Ever
since the days of Plato the world has had its fling at lawyers. They had,
however, the consolation that they had not been singled out as objects of
criticism or ridicule. Doctors, for example, have not escaped from a similar
fate. Jibes like “Cured yesterday of my disease I died last night of my
physician” have been made at them. Even the politicians had their share. Artemus Ward is reported to have said, “I am not a
politician,–and my other habits are good.” Lawyers were, therefore, accustomed
to receive the criticism levelled against them with
equanimity, and treat them as tributes that jealousy paid to an honourable and lucrative profession. But when a serious
thinker like Sri P. Kodanda Rao in an article entitled ‘Law vs. Justice,’
in a leading journal like Triveni* had several hard things to say
against lawyers, I felt it was time for lawyers to sit up and take notice, and
make an effort to remove the misunderstanding in the minds of the public
regarding the role that lawyers play. Sri Kodanda Rao goes to the length of
stating that it is doubtful whether lawyers are needed in the ends of justice.
He suggests that the judge may be given the assistance of civil servants
instead of lawyers; and if lawyers are inevitable, the lawyer for the losing
party may be made to pay the costs of the lawyer of
the winning party!
It
is rather surprising that suggestions such as these should be made at a time
when the “right to counsel” is being recognised as
one of the most valuable rights of a citizen in most of the civilised
countries of the world. The U. S. Supreme Court Reports abound in decisions
where the denial of right to be represented by counsel has been held to be a
denial of the due process of law. When administration is becoming more complex,
when legislation is no longer confined to a few enactments but consists of
innumerable rules, notifications and ordinances, it is impossible and unfair to
expect a layman to plead his own cause before courts of justice. It is no doubt
true that there are several lawyers who do not realise that their first and
foremost duty is to assist in the administration of justice that some are even
unscrupulous and foment and promote litigation. In his book, “The Life and
Times of Aaron Burr”, the man who shot
Speaking
of doctors, I think it is always useful to compare the legal profession with
the medical. Very often the same type of problems confronts both the doctor and
the lawyer. Take, for instance, the conflict between duty to the client
and the duty to society. If the lawyer is accused of an anti-social act in
advising his client to plead ‘not guilty’ when he has reason to believe he is
guilty, What has one to say about a doctor who treats a patient for a disease,
which he knows full well was contracted by the patient on account of immoral
habits? Is the doctor not encouraging the patient, by curing him, to return to
the path of vice? I remember that Gandhiji in one of his articles in the Harijan suggested that a doctor should
refrain from treating a patient of pain in the stomach, if he felt that it was
due to unpardonable over-eating on the part of the patient!
Instead
of condemning, therefore, the institution of lawyers as a whole, it would be
more useful to consider the evils and the defects that exist in the legal
profession and to try to eradicate them. If the legal profession is properly organised, it has an extremely useful role to play in a
democratic society. In considering the organisation of the profession the first
defect that strikes an observer is that the entry into the profession is
practically unrestricted, except for the payment of a heavy fee. While a
student taking to an engineering or medical course has to satisfy certain
standards in order to secure a seat in a college, there is no restriction at
all for admission into a law college. The result is that a great majority of
those who enter the profession are persons of mediocre talent who, in an effort
to succeed in the arduous profession of law, are constrained to resort to
malpractices like fomenting litigation and thriving by it. The practice of the
profession of law is at least as difficult as the practice of medicine,
and there is no reason why the standards for entry into law colleges should not
be made as stringent as those for entry into medical colleges. The usual answer
given is that knowledge of law is essential to everyone, and that
no person should be denied such knowledge if he wishes to acquire it. In the
present day it is equally true that a knowledge of the
basic principles of health and medicine is as essential to every citizen, and
still only a select few are permitted to study it as a science or practise it as a profession. In any event, even if there is
a reluctance to restrict the entry into a law college, there is no reason why
entry into the profession should not be restricted by prescribing adequate
standards. This will help to tone up the quality of the Bar, and help thereby
to a certain extent to reduce the malpractices that are unfortunately prevalent
at present. As the members of the judiciary are also largely selected from the
Bar the tone and quality of the judiciary will also improve, resulting
automatically in a more satisfactory administration of justice. The lawyer is
said to be “the father of the judge” and there is no greater guarantee of
securing the quality of the offspring than by improving the quality of the
parent.
It
should not be understood that, in suggesting that high standards should be
prescribed for entry into the legal profession in order to reduce the scope for
fomenting or increasing litigation, it is admitted that lawyers are primarily
responsible for the large volume of litigation in this country or for the
enormous delay in the administration of justice. If we dispassionately analyse the causes for the increase in litigation and the
consequent delay in rendering justice, we find that the intervention of the
lawyer is perhaps the most insignificant cause of the law’s delays. One of the
primary causes of litigation in the present day is the large volume of hasty
and ill-drafted legislation. If, instead of carrying on a campaign against
lawyers, the services of trained lawyers are utilised
in drafting statutes, the legislation will be less open to attack in courts of
law. Again, a considerable volume of litigation now consists of applications
under Article 226 of the Constitution, directed against orders of the executive
or tribunals of a judicial or quasi-judicial character. While it is no doubt
true that a great majority of the petitions are misconceived, it cannot be
denied in a large number of cases that they are the result of orders passed by
the executive without due regard to principles of law and justice, and in
several instances to the relevant rules and regulations. If care is taken in appointing
and training responsible executive officers and in insisting on their
conforming to rules and regulations, there is bound to be a considerable
diminution in the number of writ petitions. It is perhaps the fear that there
are trained lawyers, ready to assist the aggrieved party in bringing to light
any illegality, before an impartial judiciary, that is responsible for the
executive not transgressing the limits of law more often.
It
is true that the existence of a hierarchy of appellate forums is also to a
large extent responsible for the delay in securing justice, and in placing the
rich in a position of advantage over the poor. Some of the
suggestions made–for instance, the limiting of the number of appeals to
one–deserve serious consideration. But it must be remembered that this
problem is closely linked with the ability and integrity of the subordinate
judiciary. Any attempt at limiting the right to appeal without taking care to
strengthen the moral and intellectual calibre of the
subordinate judiciary will be fraught with serious consequences.
These
are but a few of the several causes of delay in the administration of justice.
They have been outlined here only for the purpose of pointing out that it is
unjust and unfair to attribute much delays to lawyers.
The
tirade against lawyers in this country started, perhaps with some
justification, in the days of the British rule, when leading lawyers arrayed
themselves on the side of reactionary elements. But there is no reason why such
a feeling should persist even after eleven years of independence. Even in the
days of the British there were a large number of lawyers who were in the
vanguard in the fight for freedom, and lawyers today can be expected to give
the lead in attaining the ideal of a Welfare State. It is time that the general
public shed their suspicions and their antagonistic attitude towards lawyers,
and considered them as their friends and well-wishers, always ready to assist
them in securing justice according to law. It is also time that leaders of
society and thought should begin to realise, in the words of Justice
Frankfurter of the Supreme Court of the United States, that “being a lawyer,
with the full implications of responsibility and opportunity that the word
carries in a society like ours, in a government of laws, under a written
Constitution, is a calling second to none.”
* Triveni, January
1958