Overview of the Legal Profession in India

De Amal Kumar Ganguli, Codirector de las Actividades Nacionales y Regionales

A.        INTRODUCTION
 

Though federal in structure, the unitary character of India under its Constitution has influenced the country to have a unified bar. The pre-constitutional legal framework had to undergo a transformation in the backdrop of the struggle by the people of India to achieve its freedom from the colonial rulers and the eventual adoption of a democratic, republican Constitution.

The Indian legal profession is one of the largest in the world, with over 1.4 million enrolled advocates nationwide. The estimated total value of the Indian legal market as of 2010 was approximately USD 1.25 billion. The legal profession, evolving as it has done from colonial India, has undergone a huge transformation since its independence. The efforts of the members of the bar to achieve excellence in all spheres of their practise through stiff competition is not only apparent in their every dealing with newer challenges due to technological and other developments, but also in the recognition earned by them in a globalized world. Historically, the members of the bar have provided leadership at a national as well as international level. The current potential is much higher.   

B.        LEGAL PROFESSION IS REGULATED BY ADVOCATES ACT, 1961
 

The Advocates Act of 1961 amended and consolidated the law relating to legal practitioners and provided for the constitution of the State Bar Councils and an All-India Bar - the Bar Council of India as its apex body. The Bar Council of India is comprised of the Attorney General of India and the Solicitor General of India as its ex officio members, as well as one member elected from each of the State Bar Councils. The members of the State Bar Councils are elected for a period of five years. Some main functions of the Bar Council of India are:

(1) To lay down standards of professional conduct and etiquette for advocates;

(2) To lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council;

(3) To promote and support law reform;

(4) To promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils;

(5) To organise legal aid to the poor in the prescribed manner;

(6) To recognise on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advocate in India.
 

The Bar Council of India is led by a Chairman and a Vice-Chairman, who are elected from amongst the members of the Council for a period of two years.

Each of the States in India has a State Bar Council. Each of the State Bar Councils has a varying number of members depending upon the numerical strength of advocates on its rolls, who are elected to the membership of the State Bar Council in accordance with the system of proportional representation by means of a single transferable vote amongst advocates on the electoral roll of the respective State Bar Council. In the case of an electorate not exceeding five thousand members, the State Bar Council shall consist of 15 members, while in the case of an electorate exceeding five thousand but not more than ten thousand, the strength of the Council shall be twenty members. If the electorate exceeds ten thousand, the strength of the Council shall be twenty five members. Additionally, each of the State Bar Councils counts their respective Advocate Generals as ex officio members. Each State Bar Council is headed by a Chairman, who is assisted by a Vice-Chairman and Secretary.

C.        ROLE OF BAR COUNCIL OF INDIA AND STATE BAR COUNCILS

(1) Rules on Professional Standards

The Bar Council of India lays down rules pertaining to standards of conduct and professional etiquette to be maintained by lawyers in court, with clients and opponents, and towards fellow advocates. Disciplinary proceedings against those who violate the rules are initiated by the Disciplinary Committee of State Bar Councils, and the Bar Council of India acts as an appellate authority for the same.

(2) Legal Education

The Bar Council of India is responsible for the promotion of legal education and lays down the standards of legal education in consultation with universities. The Bar Council approves centres of legal education, and also prescribes types and standards of courses of study, eligibility for admission, infrastructure requirements and course structures. The Bar Council also visits and inspects these centres of legal education as part of its statutory functions.

The Bar Council was also responsible for kick-starting the next level of evolution in legal education in the country through the founding of the first National Law School of India University in Bangalore. The establishment of this premier law school has brought about a paradigm shift in teaching of and research of law. Students from the National Law Schools set up in different parts of the country have shone at the international stage through winning prestigious moots such as the Philip C. Jessup International Law Moot Competition and the Willem C. Vis International Arbitration Moot Court Competition. Alumni of the National Law Schools have gone on to join top law firms in the world, and also important bodies such as the United Nations, the Permanent Court of International Arbitration, the World Bank and the World Trade Organization, to name a few.

The Bar Council of India also initiated the All India Bar Examination from the year 2010, which is a compulsory examination for all law graduates seeking enrolment as advocates. This has been undertaken by the Bar Council to raise the standards of the bar, and encourage legal education.

(3) The Bar Council of India Trust

The Bar Council of India Trust is a public charitable trust which aims to further legal research and education. The Trust publishes a quarterly journal known called the ‘Indian Bar Review’. It also conducts a national moot court competition, and various seminars and workshops as part of its continuing Legal Education Programme. A Fellowship and Placement Scheme for junior lawyers to render financial assistance to the best candidates was initiated and is being continued by the Trust.

(4) Bar Associations

Apart from the Bar Council of India and the State Bar Councils, almost every court in the country has Bar Associations of advocates that operate at a less formal level. These bar associations look after the welfare of advocates, represent their interests, and conduct numerous social and cultural activities of the bar, or even different sections of the bar. The Supreme Court Bar Association and the Supreme Court Advocates-on-Record Association is an example of two of the associations that thrive side by side.

D.        CLASSES OF PRACTICIONERS
 

(i)  Individuals: Senior Advocates and Advocates

Advocates are divided into two classes – Senior advocates and other advocates. Lawyers can be designated as senior advocates by the Supreme Court or any of the 21 High Courts. Advocates are designated as Senior advocates with their consent, if the Supreme Court or High Court is of opinion that by virtue of their ability (standing at the Bar or special knowledge or experience in law) they are deserving of that distinction. Only 1% of the lawyers constitute this elite group of senior lawyers who wield exemplary influence in the profession. Senior advocates enjoy priority of audience. A senior advocate designated by one court is recognized as a senior in other courts as well. It is only the Senior Advocates who have a combined seniority roll maintained by the Bar Council of India. Senior advocates have certain restrictions placed upon them by the Advocates Act, 1961 and the Bar Council of India. They cannot appear without a separate “briefing” advocate (or, in the Supreme Court, an Advocate on Record). Seniors are foreclosed from drafting pleadings and conveyances or taking evidence (Bar Council of India Rules 2009, Part 6, Ch. 1). A Senior advocate is not allowed to accept any brief directly from a client. The reasons for these restrictions are to enhance opportunities for the younger members of the bar, as well as enable the senior members of the bar to spend their time profitably on research and academia.

(ii) Law Firms – From a Solicitors Practise to the Modern Corporate Sector

Law firms were always present in India, but were restricted mainly to the Metropolitan cities of Bombay, Calcutta and Madras before India’s Independence in 1947. These cities had firms of solicitors, as well as attorneys. The dual-system of classification between solicitors and attorneys was abolished in 1970 with uniform enrolment as advocates, but in Bombay and Calcutta the system of dual license is still followed, and examinations are still conducted for persons who wish to qualify as solicitors, upon the completion of a three year training period in a solicitor’s office as an ‘article clerk’ and the passing of a solicitors’ exam.

With the opening up of the economy, there are law firms in almost every city in India. Major law firms have their presence in every State and city with a High Court, as well as in commercial centres throughout the country. The law firm segment has been the most touched by globalization and has seen tremendous growth, contributing heavily to transactional and litigation work. They also attract the best talent from law schools in India.

The impact of globalization necessitated recognition of Limited Liability Partnerships (LLPs) to enable the law firms to meet the new challenges. In 2008, the Limited Liability Partnerships Act was passed which recognizes law firms with more than 20 partners and enables them to limit their liability.

(iii) The Focus on Litigation Practice

Despite the emergence of the National Law Schools and rising standards in legal education, there are still not enough litigating lawyers to keep up with the demands of India’s burgeoning population. There is a lot of potential for the further growth of the bar. The concentration of advocates and law firms is mostly in the big cities. In towns, urban areas and in villages the advocates are mostly involved in private practise. There are also some distinctive features of the Indian legal profession which perhaps are quite surprisingly similar to those of the pre-independence era and perhaps make it unique, which Marc Galanter finds in his article entitled ‘The Indian Legal Profession in the Age of Globalization’ (2012). These features form the core structure of the legal profession in India:

(a) Individualistic approach - Lawyers mostly practise by themselves i.e. they have their own chamber/office assisted by clerks and a few juniors depending upon their seniority. And in case of the law firms, most of them are not oriented towards litigation.

(b) Most of the lawyers are oriented towards courts. So if an advocate practises at Delhi High Court, most of his time will be dedicated to this particular court. Even though these days, some of the lawyers have started flocking to other courts, but such cases are restricted to a few lawyers only.

(c) Courtroom advocacy continues to remain the central point of the profession. More focus is laid on the oral arguments made before the court than written submissions. It reflects the dominance of the English barrister model in the Indian bar and, with the kind of prevalent remuneration structure, it only reinforces its dominance.

(iv) The Shift Away from Litigation to Corporate Law Firms

The trend in recent times has seen the law graduates from prestigious law schools gravitating towards the law firms and companies, rather than litigation. The reasons for this may be because young lawyers in litigation do not earn as much at the outset, as compared to their counterparts in law firms who are paid handsomely. Furthermore, the gestation period for a litigating lawyer is quite long when compared to careers at law firms and companies.

E. ETHICS

In India the legal profession, to this date,  is considered a noble profession and thereby still assessed by standards of legal ethics that may seem outdated in many other jurisdictions abroad, but are considered a very important part of the legal profession in India, despite the change in thinking that liberalisation has inevitably brought. The Bar Council of India still maintains strict standards with respect to the legal community. An example of this is Rule 36 of the Bar Council of India Rules whereby the Indian Law firms/ lawyers are not allowed to advertise their practise in the market.  The judiciary has acknowledged the substance of this restriction in various cases. That is not to say that the Bar Council of India has been completely blind to the realities of liberalisation, as would be evident from its decision to amend Rule 36 and add a proviso allowing advocates to maintain websites about themselves or their law firms in order to disseminate information, in order to enable people to make informed choices.

The Bar Council of India is progressively reviewing the ethical standards with the demands of our time, in order to strike the best balance. Recently, the Bar Council in a seminar on ‘Professional Ethics’ considered whether to reform standards of ethics and professional conduct in India in order to better reflect the standards of the International Bar Association, of which it is a member, and standards under the UIA Rules. Champerty and contingency fee arrangements have always been illegal in India, and there is nothing to suggest that there is any reason for changing such thinking in the near future.

F. FOREIGN LAW FIRMS

A seeming resistance to the entry of foreign law firms by the members of the bar is primarily founded on reciprocity. The Indian Bar is not insulated from the impact of globalization nor is it averse to competition. The expectation is only that the foreign law firms are welcome in India on a similar reciprocal recognition of Indian lawyers and law firms by other countries. The professional services sector in India has already opened its doors to the foreign accountancy firms, engineering multinationals and architecture firms. The legal profession cannot remain too far away.

India being a signatory to the General Agreement on Trade in Services (GATS), which is an organ of the World Trade Organization (WTO), it is anticipated that it may soon appreciate its obligation to open up the services sector to Member Nations. Legal Services are included in the list of recognized services under GATS, which obligates India to open the markets to the foreign law firms and foreign lawyers.  Many members such as the US, EU, Australia, Singapore, Japan, China, Switzerland, New Zealand and Brazil have requested that India show its commitment to its obligations under the GATS. These requests have also been reflected in the process of plurilateral requests which are mostly for FLC’s in only corporate and international law. There is no such request to practice domestic law in Indian courts. These requests are only for their engagement in a consultative capacity. There are requests for commercial association between foreign and local lawyers and firms on certain terms and conditions.

G. CONCLUSION

The Indian legal profession has grown over a short period of less than 50 years to become the world’s largest branch of the profession. Within India, it is one of the most influential professions having an involvement in the governance of the country. It sufficiently reflects the diversity of Indian society, its social hierarchies and realities, and yet performs efficiently in delivering justice to litigants through Courts, despite the massive pressures that Courts and legal institutions function, given how unimaginably overburdened they always are.  The unitary structure of the Indian bar comes across as a boon in this regard.

Due to globalization, the effects of the world economy are being felt, with foreign law firms seeking entry into the Indian space and Indian law firms handling transactions with global implications. At the same time, the core practise of law still revolves around the courts in India, and the majority of the bar is involved in practise before the courts. This produces a melting pot of ideas and opinions, and the result is a bar which is evolving through reforms in legal education and ethics and at the same time, is fortified by traditions that have stood the test of time. It is inevitable that as the nature of legal services sought by the consumers of legal service change, with the inevitabilities of liberalisation, the profession in India will evolve and rise to the challenges that they raise. Continuing Legal Education (CLE) initiatives will need to be fostered. There is no doubt that the legal profession in India will always work closely with all stakeholders concerned to improve access to justice for all and help realise our Constitutional ideals for people from all walks of life.