we have inherited our traditions in Law from ancient Indian systems and mainly from the British. Vide the Constitution of India, we have accepted the principle for governance that 'Law is supreme'. Law makers, law enforcers and even judges dispensing justice are themselves not above the law. Our government thus functions on the 'Rule of Law'.We have in our country a host of laws, regulating...
we have inherited our traditions in Law from ancient Indian systems and mainly from the British. Vide the Constitution of India, we have accepted the principle for governance that 'Law is supreme'. Law makers, law enforcers and even judges dispensing justice are themselves not above the law. Our government thus functions on the 'Rule of Law'.
We have in our country a host of laws, regulating every human activity and subject, yet there are very few law-abiding citizens. Also, fair, just and effective implementation of law continues to be the main problem, so much so it cannot be really called a country governed by 'Rule of Law'. Helping create a culture of obedience and respect for law should be the main concern of lawyers.
When we speak of the 'Rule of Law', it is implied that it should be a law which is fair, just, practical and constitutionally valid. Therefore, the ongoing legal process of enforcing law through lawyers involves questioning the fairness and validity of laws. The future lawyer has to be constantly vigilant in examining laws enacted by the legislature to test them through courts on their fairness and constitutional validity.
With people of the world coming closer for trade, commerce, science, literature, art and other human endeavours, the lawyer of tomorrow should shed narrow domestic views and develop a broad outlook on all issues around human conflicts.
The next generation of lawyers can no longer remain confined to the laws of their own country but have to be well-versed in the laws of other countries, international law and Human Rights Laws developed by the United Nations. Apart from the laws of their own country, they would be required to understand principles of law and justice as applied to societies and peoples of other countries.
CHALLENGES FACING LAWYERS IN INDIA
Vast sections of ignorant and poor people in India are denied legal rights, legal protection and access to institutions of law. This big problem should worry lawyers as a community. It is up to lawyers now to take the lead to help these deprived sections of society. They should independently take up programmes in their own fora and extend whole-hearted support to Government Programmes of Legal Awareness and Legal Aid in the Courts.
In Madhya Pradesh, Courts have been setup at the Gram Panchayat level and Mobile Courts have also been provided so that a category of litigation can be handled at the village level and does not travel to higher courts in the Districts and the State. This legal aid movement can take off only with the help of lawyers. Free legal awareness camps and legal aid programmes should be organised by law colleges and Bars to help all persons living Below Poverty Line.
Undoubtedly, when students opt for Law as career, their main aim is to secure a lucrative position as a lawyer in Tahsil or District or High Court or Supreme Court. The majority of students passing out from leading law colleges and law universities accept a handsome pay packet to serve in corporate firms. A large section of students try their luck through the competitive examinations to enter the subordinate judiciary as a judge.
No one thinks of spending some years of practice for the poor and needy who continue to be denied protection and justice. As is being insisted upon in medicine as career, where fresh medical graduates work first in rural hospitals, fresh graduates passing out should be bound to compulsorily render legal service in rural areas. Such a practice is required to be introduced for Law Graduates so that in the initial period of their law practice, they work in Gram Nyayalays and engage themselves in legal awareness programmes and legal aid.
The legal aid programmes have to be funded by the State so that even experienced lawyers can be invited to assist the courts and are paid on dignified terms. Unless this is done, the laws meant for the poor and needy would never reach them. In Britain, a majority of the Members of the Bar are earning through the legal aid movement undertaken by the State. Corporations no doubt need competent lawyers for their legal work, but presently our best talents are lured by them resulting in loss to the Bar and the Bench.
In every Bar Association at the district and high court level and even in the Supreme Court, there should be a committee of eminent advocates to impart training to the new entrants to the Bar. Monthly stipends should be paid to the trainees and a fixed amount of fees for the work they do on the files. To attract lawyers to the Bar, the Members of the Bar Association should take special care of them and ensure that they are properly trained in various branches of law and get sufficient income to sustain them.
HUMAN RIGHT JURISPRUDENCE
Human Rights Law developed by the United Nations in relation to various human activities is already incorporated as fundamental rights and Directive Principles in our Constitution. Other Human Rights Norms and Conventions are being gradually incorporated in domestic law. Humanising the law and legal processes in judicial institutions is the need of the time. Lawyers have to equip themselves in these Human Right Laws and help the needy in seeking their enforcement by extending active support to the Global Human Rights Movement.
ALTERNATE DISPUTE RESOLUTION SYSTEM (ADRs)
With enforcement of the Legal Service Authority Act, Arbitration and Conciliation Act and various amendments introduced in the Code of Civil Procedure, lawyers are now required to obtain special training to work in alternate dispute resolution systems like commercial disputes, family disputes and matters regularly being taken up in Lok Adalats. These alternative systems have been developed to speed up the judicial process. They cannot successfully work unless lawyers obtain special training to act as mediators and conciliators. The ADRs have to be made less expensive and quicker to fulfill the object for which they have been introduced in the judicial system.
DECENTRALIZATION OF TRADITIONAL JUDICIAL SYSTEM
In promoting ADRs, the traditional Civil and Criminal Courts should not be neglected. These courts have to be strengthened with the help of judges and lawyers. For enforcement of Fundamental Rights, the Supreme Court has been conferred with original jurisdiction under Art. 32. High Courts have also got original jurisdiction to enforce fundamental and other legal rights under Art. 226 of the Constitution of India.
With congestion/piling up of Writ work in the Supreme Court and High Courts, it is necessary that jurisdiction to enforce Fundamental Rights, which include Human Rights, should be conferred on the subordinate courts. Why should it be necessary for a poor litigant living in a town or village to approach the High Court or Supreme Court for the enforcement of his Fundamental/Human Right. In Sub-Art.3 of Art. 32 of the Constitution, there is already a provision that the Central Legislature may empower other courts within their local limits to exercise jurisdiction for enforcement of Fundamental Rights.
For de-centralizing the judicial work, particularly concerning Fundamental/Human Rights, the Bar should press and impress upon the Central Legislature to bring about laws that empower subordinate courts to enforce these rights. This is the need of the present time, as higher courts are flooded with writ petitions and part of the work of subordinate courts is being transferred to ADRs and Special Tribunals. The quality of justice dispensation can be maintained only through a well-tested procedure adopted in the traditional courts. ADRs and Tribunals are poor substitutes for them.
PUBLIC INTEREST LITIGATION
The higher courts are devoting a major portion of their judicial time in handling Public Interest Litigations (PILs) which are being filed in large numbers. The PIL jurisprudence developed by the Higher Courts encourages and promotes such litigations. It is necessary that subordinate courts should also be used by lawyers for Public Interest Litigations. Order I Rule 8 of the Code of Civil Procedure, as amended in 1976, empowers subordinate courts to entertain class actions, meaning a suit in which a class of people are involved and seek rights and remedies.
Issues such as of tribal, villagers, farmers and residents of towns can be taken to civil courts through class action by suits under Order-1 Rule-8 of the Code of Civil Procedure, in which not only the plaintiff but all those likely to be affected by such litigation can be heard and issues of public interest are tried and resolved at the local levels. The lawyers now have to be innovative and file some test cases following procedure under 0-1 R/8 and seek relief for an aggrieved class or section of society.
It would be a denial of justice if a holder of a BPL card or labourer or farmer for his right or privileges from the government under the existing laws, such as Public Service Guarantee Act or Act protecting forest rights, is required to go to the higher courts for obtaining relief when the internal appellate machinery also fails to intervene in his favour. It is for lawyers now to enforce all kinds of human and legal rights of aggrieved citizens by approaching subordinate courts through suits.
USE OF COMPUTERS
Use of computers in judicial work has immensely helped lawyers and judges in making their jobs easy and quick. The use of computers, however, has to be made wisely, else it will stifle and stunt original thinking and legal work, which alone distinguishes the work of a technical man and a judge or a lawyer. Mere precedent based dispensation of justice is not sufficient because every human conflict has an individual characteristic and a unique quality which requires independent handling, and precedents can only help in the legal process.
Let law colleges now turn out socially oriented lawyers and judges ever ready and willing to extend support for obtaining justice, not only to those who can afford to approach the courts but also to those who have no easy access to the judicial system. Apart from lawyers and judges, we require a large number of good law teachers, which is unfortunately a fading class. We are increasing law universities, institutions and colleges in cities and towns, but there is a dearth of law teachers. Their work is, to some extent, being supplemented by practicing lawyers who devote time to teaching as visiting lecturers.
The theory and practice of law are complementary and supplementary to each other. In isolation, they would not dispense the quality of justice which is expected from judicial and quasi-judicial institutions. Legal institutions are required to be divided into three categories. Separate institutions should be set up for training lawyers, judges and teachers, and separate colleges at district levels are to be set up to turn out competent lawyers and judges for conducting civil and criminal trials and arguing appeals.
The future lawyer of India has now to hold a brief not only for his client but for the society needing justice. The future lawyer will no longer remain confined in giving his services to only those who can pay but also to those who need justice but have no means to pay. Lawyers as a community have to reorganize their activities in the Bar Councils, Bar Associations and their private offices, keeping in view the larger interest of their motherland, i.e., Bharat Mata. Speech delivered in Satpura College for Law, Chhindwara, in Moot Court Competition held on 4th March 2012.
Disclaimer: Views of the author are personal.