Time to raise the bar

IN Mahipal Singh Rana vs State of Uttar Pradesh, wherein the Supreme Court while hearing a criminal contempt for intimidating and threatening a Civil Judge (Senior Division) by an advocate had expressed its concern over unsatisfactory regulatory mechanism governing the advocates and observed that there was an urgent need to review the provisions of the Advocates' Act, 1961. Pursuant to the judgment of the Supreme Court, the Law Commission started its deliberations and invited the  objections of the stakeholders, including the comments of the Bar Council of India, to the amendments which need to be brought in to better regulate the legal profession.  One of the premises of the Law Commission, while deliberating on the issue of the need for change, was that other professional bodies like the Medical Council of India have non-doctors in their governing set-up. Accordingly, there is a need for involving non-lawyers also in the governing set-up relating to the legal profession.  Clearly, the said premise was wrong as in the Indian Medical Council Act, 1956, there is no provision for bringing in any non-medical professionals in the Medical Council of India.  

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As far as the need to regulate the legal profession is concerned, I feel that the legal community instead of objecting to these reforms should rightly accept the same.  The day is not far when consumer complaints would be entertained against the legal professionals also for deficiency of service.  I am associated with the Medical Council of India and represent them in most of their legal matters. I was also associated with the Medical Council of India (MCI) about 25 years back. At that point of time, the medical professionals were not yet covered by the Consumer Protection Act, 1986. A debate was going on within the MCI that grievances against the medical professionals should be also adjudicated under the Indian Medical Council Act, 1956 itself.  At that time, I had suggested draft regulations so that a disciplinary committee could be constituted under the aegis of the Medical Council of India, headed by a judicial person and in the disciplinary committee a general doctor as well as a specialist would consider the complaints of patients for redresssal of their grievance. A committee was also constituted to look into the draft regulations.  Somehow, the committee never sat and later on judicial pronouncements came that the medical professionals were amenable to the Consumer Protection Act.  Medical professionals have faced acute harassment in defending themselves before persons who have no knowledge of the methods of treatment. That is why the Supreme Court in a large number of decisions had to intervene to say that normally a deficiency of service should not be entertained till a team of doctors opined.  

Some of the suggestions being mooted by the Law Commission need further deliberation so that a complete mechanism is evolved within the Advocates' Act. This would enable dealing with all complaints that a litigant may have with regard to the legal services provided to him by a lawyer or by a law firm.  An in-house procedure conceptualised within the Advocates' Act would in my view safeguard the legal community from being subjected to frivolous cases as an adjudicatory body consisting of legal professionals would better understand as to whether a deficiency of service, if any, has been committed or not in a given case.  The reactions that the legal community so far has been against the proposed amendment and the same in my view are not in the larger interest of the legal profession.

Protesting against any change into the Advocates' Act is not desirable as legislations should evolve with time and should address the needs of the changing environment. Instead of merely protesting the amendments if the legal community were to sit together and give suggestions to the Law Commission, in all probability a better draft amendment could be proposed. One of the amendments proposed by the Law Commission concerns the recognition of foreign lawyers within India.  In my view, the same should not be permitted because firstly there is no level playing field between the legal professionals registered in India vis-à-vis legal professionals registered outside India. In India, under the Bar Council Regulations, a lawyer is neither permitted to advertise his service nor is he permitted to charge fees as a percentage of the sum likely to be awarded in the litigation. Both these limitations do not exist insofar as lawyers registered in most other countries are concerned.  To permit such lawyers to be registered and recognised by the Bar Council of India would definitely disturb the level playing field.  In India, the legal profession has always been considered to be a noble profession and not a business whereas the same is not so abroad.  In my view before deciding to register or recognise foreign lawyers in India, a more comprehensive debate needs to be initiated.

As far as the move to debar advocates from resorting to strike is concerned, I think the same is no more a matter of any debate in view of the judgment of the Supreme Court on the subject. It is high time that some amendments are incorporated in the Advocates' Act to debar strike by lawyers.  The only way in which lawyers who are supposed to belong to the noble profession could be allowed to protest is by taking the suffering upon themselves rather than making the clients suffer who have no stakes in the issues which the legal community want to raise by the strikes.  The very concept of resorting to strike is to gain the attention of the authorities for a particular issue which the legal community feels is harming their interest. The legal community can take recourse to filing PILs on every issue concerning the nation. If there is a genuine issue concerning the legal profession, their PILs are invariably entertained and judicial orders passed to redress their grievance.  The strikes that normally take place are the ones in which there is no chance of the lawyers getting any redress from the courts and hence also the justification for the strike is questionable. 

The writer is a Senior Advocate and former Additional Solicitor General  of India.