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--------------- Print Magazine --------------
  May 2016
  April 2016
Hemant Kumar, Advocate
At a time when the Union Government and Civil Society are up in arms against each other’s draft legislation with regard to setting up of an effective national LokPal so as to check corruption at high places, the Law Ministry is working over a Bill which inter alia provides for setting up of an independent Ombudsman-like institution for legal professionals so as to keep a tab over erring and rapacious members within this 1.2 million strong noble profession.

On August 9, the Union Law Minister, Salman Khursid, while replying to a question in Rajya Sabha revealed that the Government is working on a Bill titled " Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the interest of Clients and Promoting the Rule of Law) Act, 2010" that envisages an Ombudsman to look into the complaints against lawyers along with a Legal Services Board (LSB) which would regulate law practice in the country. It may be recalled that the draft of the said legislation was uploaded on the official website of the Law Ministry late last year for inviting comments and suggestions from all stakeholders.

Noteworthy to mention that the concept of LSB as contemplated under the draft Bill has been emulated from United Kingdom (UK) where such Board was created by enactment of Legal Services Act, 2007. The LSB which became fully active there in January, 2010 is an independent body responsible for overseeing the regulation of lawyers in England and Wales. It sits at the apex of the new regulatory regime for legal services. It is a non-departmental public body sponsored by the Ministry of Justice. Its set-up and ongoing costs are met entirely by a levy on practitioners of the legal sector, so the body is both politically and financially independent from the Government.

As per the draft Legal Practitioners Act, a LSB would be constituted by the Central Government whose Chairperson and members would be appointed after consultation with the Chief Justice of India and the Chairman, Bar Council of India (BCI). The legislation further provides that the complaints against the legal professionals would be examined by a proposed LSB-appointed Ombudsman whose report would be forwarded to the Disciplinary Committee of the concerned State Bar Council along with a copy to the LSB.

The concerned Disciplinary Committee shall consider the report and if the same is not accepted by it, the reasons for its rejection shall have to be explained in detail which would be published in the manner as prescribed by rules. Next, Clauses 30 to 33 of the proposed Act empower the LSB to issue directions to the Bar Councils in certain specified circumstances and even enable the former to approach the High Court for enforcement of such directions if the latter fail to comply. The LSB is also to function as a regulator with respect to legal professionals other than those covered under the Advocates' Act, 1961.

Undoubtedly, the idea of LSB is bound to face stiff opposition from our Bar Councils as they would not like to have a super-regulator imposed on them. Even otherwise there is no rationale in blindly emulating, enacting and enforcing a statute of UK in India as there is a sea change both in terms of quality and quantity between Bar of these two countries. In lieu of simply adopting a mechanism prevalent in the UK, we rather ought to have current law(s) re-examined or re-enacted consistent and practicable with conditions existing in our country.

At present, the Advocates' Act, 1961 is the only statutory enactment which deals and governs the legal profession in India. This Act grants BCI the exclusive power to lay down minimum standards both with respect to legal education/training as well as entry into the Bar. Though this concept was relevant at the time when the Act was enacted in early 1960s as then the law colleges were supposed to produce law graduates only for entry into the Bar, in the present times when sizeable number of fresh law graduates especially from elite National Law Schools are joining the corporate world or other allied fields, the time has come to absolve and relieve BCI of its command over the whole gamut of legal profession. The setting up of regulatory standardization and accreditation bodies to deal with respect to non-litigant legal professionals brooks no delay.

Although the State Bar Councils are fully elected bodies from amongst all eligible enrolled advocates practicing within that concerned state(s), it would be appreciable if there is an inclusion of certain retired members from the higher judiciary and legal academicians/intellectuals as well as other distinguished members from different walks of civil society. This would be imperative as the Bar Councils in addition to the role of regulator over legal practitioners also act as quasi-judicial bodies deciding all kinds of complaints alleging both gross and simple misconduct against erring advocates.

Under the provisions of the Advocates' Act, the Disciplinary Committee of a Bar Council is the Appropriate Authority to inquire, investigate and proceed against those advocates whose conduct is called in question. If such committees would include non-advocates, it would surely increase the faith and trust of the complainants and aggrieved victims with regard to proceedings against delinquent and irresponsible advocates. The noble profession of an advocate should not be allowed to be eroded further owing to the acts of omission and commission by a few malicious advocates. A distinctive Vigilance Wing with adequate number of sleuths under its fold needs to be set up by each Bar Council as a Watchdog to keep a check on corrupt and rapacious advocates. If these suggestions are implemented in right earnest, there would be virtually no need for creating a distinct Ombudsman for Advocates.

Next, the draft Bill also envisages constitution of a Consumer Panel by the LSB. The objective is to protect the interests of clients and consumers of legal practitioners. In this regard, it merits due reference that till date an ambiguity persists whether Advocates are covered under Consumer Protection Act , 1986 (CPA) or not ? Although in August, 2007 a Bench of National Consumer Dispute Redressal Commission (NCDRC) reiterated that if there is a deficiency in service rendered by an advocate, complaint under the CPA is maintainable but in April, 2009 after the Supreme Court was moved in the matter, a Bench comprising then Justices LS Panta and BS Reddy granted a reprieve by suspending the said order of NCDRC and by holding that advocates are not liable to be dragged to consumer courts for allegedly providing unsatisfactory services to their clients. The matter is still before the Apex Court and a final adjudication is awaited till date.

Be that as it may, one may argue that the time has come to thoroughly review and re-examine our half-century old Advocates' Act in line with the present day needs and challenges faced by the legal profession. The need of the hour is to immediately constitute a high level Expert Committee on the lines of All India Bar Committee which was constituted way back in 1953 to draft the present Advocates' Act. A fresh and comprehensive legislation needs to be re-enacted as per contemporary requirements which ought to cover and govern not only the class of legal practioners (Advocates) but every qualified legal professional whether he is in litigation practice or else engaged/employed in various aspects of non-litigation legal work.

At the outset, it can be concluded that although the idea of setting up of LSB coupled with creation of an Ombudsman-type institution as distinct from State Bar Councils for disciplining errant advocates looks highly appreciable on face apparent, at the same time it is also true that the same is not going to be an easy task given the fact that it would be simply unacceptable to the Bar Panels across the country and no ruling dispensation or political outfit would like to have a confrontation with legal fraternity which indeed constitutes a sizeable pressure group in our society. Nevertheless, if the prevalent system is still to be substituted with a more effective mechanism, it requires kick-starting wider deliberations involving all stakeholders preferably under the aegis of the BCI coupled with dispelling and redressing all possible apprehensions of advocates in this regard. Alternatively, if the government so desires, the matter may also be referred to the Law Commission of India for making an in-depth examination and analyzing its possible pros and cons.

Inputs by Hasan Khurshid

Noted lawyer and President Bar Association of Delhi High Court, Amarjit Singh Chandhiok , expressing his views on the subject, said that the efforts of the government to ameliorate the legal system are laudable, whereas, by creating multiple authorities, we shall be encouraging interlopers. There is already an Ombudsman in the legal sector in the form of Bar Council of India, having quasi-judicial powers, thereby enjoying the status of a plenipotentiary institute, yet we are considering to create another ombudsman. What if in the course of time that too becomes corrupt, shall we then raise another super ombudsman.

Chandhiok further said, " This way we shall be wasting our energies, hence it is better to strengthen the Advocates' Act and reshape BCI and its State agencies starting from reforming election system. The counting of votes is held up for months. Voters never seen earlier suddenly emancipate on election day. Voters should therefore be the practicing lawyers having at least five years of practice in courts, no matter even if they would have practiced in a Munsif's court. The eligible voters should be asked to produce the data of the cases represented by them in various courts in a specified period. The elections should be conducted under the authority of the Election Commissioner of India. The BCI and State Bar Councils should nominate members from jurists and senior government officials. This way a workable Ombudsman will automatically emerge from the existing system."

Sharply reacting to the proposed Bill, noted lawyer and Secretary Supreme Court Bar Association K.C. Kaushik said," This heterodoxy is most likely to create higgledy piggledy, mussy situation. Are we there to solve the problems or else become a part of the problem ? The expounders of this new theory need to introspect. We have Advocates' Act/ Rules in place, which per se is the sound control mechanism. Then there is Bar Council of India (BCI), which too is an Ombudsman by itself. The decisions of State Bar Councils are appealed in Bar Council of India and the BCI's decisions can be appealed in the Supreme Court, hence the proposed law is uncalled for."

Kaushik further said that in the proposed Bill, the reports of the Ombudsman will be forwarded to the Disciplinary Committee of the Bar Council of the State for necessary action with a copy to the proposed Legal Services Board. Why can't the matter be taken up directly by the Bar Council? Multiple agencies will complicate and prolong the matter. As such the proposal is against justice delivery system. The problem is not with the system but with the implementation. The government through such moves wants to interfere in the matter of legal services.

Kaushik pointed out that mutatis mutandis in the working of Bar Council is okay, but it does not mean to revamp the entire system all of a sudden. There have been complaints that BCI grants recognition to colleges having no paraphernalia/ infrastructure, therefore to bring more transparency. Members of inspection teams can be nominated from vice chancellors/ registrars of the universities. To tackle the problem of non-practicing lawyers, they can be subjected to refresher's course periodically. A modus vivendi can be had by making necessary amendments in the existing system instead of raising a parallel system, which will go a mucker if implemented, stressed Kaushik.

Legal luminary Dr. Khan Noor Ephroz, having to her credit a vast experience as eminent advocate on international issues, professor of law and the author of law books, was also not in consonance with the idea of creating another Ombudsman for the legal sector. Dr. Noor Ephroz said, "Many  cooks spoil the broth' and too many directors spoil the theater show. Before taking such a hasty decision, you have to view the entire system with perspicacity and clairvoyance. The need of the hour is to revamp the existing Regulator, the Bar Council of India and create the eugenics of lawyers through elevating the educational standards, upgrading their skill and inculcating moral values. As such the proposed Bill is full of complexities involving multiple agencies which is likely to make the system more labyrinthine. There may be more rivalry and crevice inter- se . We should make the existing system more diaphanous and more accountable."

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