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Relatively unnoticed amid the scams
and agitations haunting the government, Law Minister Salman
Khurshid set a time bomb ticking. Earlier this month, exactly 50
years after the Advocates Act, a bill was placed by the minister,
a legal practitioner himself, for wide consultations that seeks to
set up a new regulatory authority for the profession.
Called the Legal Practitioner (Regulation and maintenance of
Standards in Professions, Protecting the Interest of Clients and
Promoting the Rule of Law) Bill, 2010, it was drafted during the
tenure of Khurshid's predecessor M. Veerappa Moily and envisages a
parallel watchdog, alongside the Bar Council of India (BCI).
In effect, the bill seeks to hand over controls of the entire
judicial delivery system to a body, unrepresented by its
stakeholders. What purpose will be served by creating such a
parallel machinery, instead of strengthening the bar councils
themselves, is writ large on the bill.
For one, the regulator will discharge the same functions and
objectives for which the bar councils were set up -- to deal with
complaints of misconduct, formulate code of conduct of lawyers and
provide legal aid to the poor.
The objectives and scope of bar councils are similar: Protect and
promote the interest of the clients, encourage ethical obligations
of lawyers with a strong sense of duty toward courts and tribunals
where they appear and create legal awareness among the public and
clients of their legal rights and duties.
Thus, the new watchdog will arrogate for itself these functions,
core to the functioning of these councils. But Khurshid also seeks
to do what is otherwise not allowed or explicitly banned under the
Advocates Act -- that is, allow the practice of the profession of
law outside the defined scope.
The act says that there shall be only one class of persons
entitled to practice law, directly or indirectly, namely,
advocates. The term "advocate" as defined, means those entered in
any role under the provisions of the Advocates Act.
The bill, however, also lists nine classes of legal professionals
who do not purportedly constitute practicing of law under the act.
These are: Qualified lawyers who are not practicing advocates,
those doing legal services in their chambers, qualified lawyers
engaged in drafting and conveyancing, income-tax practitioners,
sales-tax practitioners, practitioners in revenue courts, customs
clearance agents, customs and immigration law practitioners,
trademark attorneys and patent attorneys. The bill seeks to
empower a legal services board to act as a regulator for these
professional, and grant them licence to practice law.
The bill also doubles the procedure for dealing with complaints
against advocates by requiring an aggrieved client to go through
the entire proceedings of completion of pleading, discovery of
document, evidence and arguments, twice over -- once under the
proposed legislation and again under the Advocates Act.
The bill singles out lawyers enrolled under Advocates Act by
making the directions of the board mandatory on the bar council,
but non-mandatory on "other law professionals". It also seeks to
empower the board to determine and administer the terms and
conditions of the practice of law, without even having a
representative character, or being answerable to the advocates'
enrolment, that is granted under the Advocates Act.
A "consumer panel" of handpicked people chosen by the board to
assist it will have "fair degree" of representation of existing
and potential clients of practicing lawyers across India without
the so called "clients" -- yet unorganized and non-existent,
neither as a body, nor as a class of professionals -- having any
say to elect or nominate members to the said panel.
Are we to see more or is it the complete picture: Of a
complainant, then a government-appointed Ombudsman, a
state-appointed consumer panel, a board to arm twist the bar, and
a regulator to open up the practice of law to persons not
registered under the Advocates Act.
This will also clearly be a move for back-door entry for various
classes of foreign law firms into the country -- a move which the
Bar Council of India has resisted vigorously. It also indirectly
defeats the legislative mandate that only an advocate can practice
law in India -- directly or indirectly.
Manoj Kumar is joint general secretary of the
Society of Indian Law Firms and managing partner of Hammurabi and
Solomon, a law firm and corporate advisory. He can be reached at
manoj.kumar@hammurabisolomon.com
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