Raising the bar for the legal profession

LEGAL PROFESSION

LEGAL PROFESSION

N R MADHAVA MENON IN THE HINDU

Continued self-education is indispensable to honing the skills of lawyers in emerging areas of practice and to their social relevance in a changing world

The Indian legal profession has grown over a short period of less than 50 years to become the world’s largest and most influential in the governance of the country. At the same time, it reflects the diversity of Indian society, its caste structure, inequalities and urbanised delivery of services depending upon the market forces. Being a private monopoly, the profession is organised like a pyramid in which the top 20 per cent command 80 per cent of paying work, the middle 30 per cent managing to survive by catering to the needs of the middle class and government litigation, while the bottom 50 per cent barely survive with legal aid cases and cases managed through undesirable and exploitative methods! Given the poor quality of legal education in the majority of the so-called law colleges (over a thousand of them working in small towns and panchayats without infrastructure and competent faculty), what happened with uncontrolled expansion was the overcrowding of ill-equipped lawyers in the bottom 50 per cent of the profession fighting for a piece of the cake. In the process, being too numerous, the middle and the bottom segments got elected to professional bodies which controlled the management of the entire profession. The so-called leaders of the profession who have abundant work, unlimited money, respect and influence did not bother to look into what was happening to the profession and allowed it to go its way — of inefficiency, strikes, boycotts and public ridicule. This is the tragedy of the Indian Bar today which had otherwise a noble tradition of being in the forefront of the freedom struggle and maintaining the rule of law and civil liberties even in difficult times.

Professional competence

In the midst of such drift and mediocrity, the world around including the legal environment changed and opportunities for legally trained persons grew phenomenally, thanks to globalisation, technological revolution and economic liberalisation. The emergence of the National Law School movement and the Five-Year Integrated LL.B. programme attracted talented students who stormed into the legal market making a dent, though small, in the monopoly of the top 20 per cent. It gave hope to the rest of the middle and bottom segments of the professional pyramid that by playing the game with some professional skills, they too could penetrate the higher ranks which were largely reserved for the kith and kin of successful lawyers and judges so far. This is the context in which continuing legal education (CLE) is to be appreciated for professional development and better delivery of legal services.

There is as yet no organised system of CLE in the country. In the 1970s and 1980s, when the Bar Council of India Trust organised few CLE programmes, there were enthusiastic responses from all segments of the profession. Advocates paid the cost, suspended their practice and joined the residential courses around areas like criminal advocacy, constitutional litigation, matrimonial adjudication, commercial law practice, etc. The idea of specialisation in legal practice was well received and professionalism in management of client services appreciated. The issue of professional ethics on which advocates had no training whatsoever came to be acknowledged. More importantly, the CLE programmes inculcated a sense of public service as the hallmark of the profession and advocates sought to expand the public-interest litigation jurisdiction of courts to enlarge access to justice for the common man. In short, even a casual attempt to offer CLE has ignited the imagination of a large number of advocates on the relevance and usefulness of continuing education to hone their skills in emerging areas of legal practice and maintain their role as social engineers in the process of development. Over the years, this awareness has spread among the younger members of the profession though, unfortunately, there was no one to offer the CLE programmes relevant to the changing demands of the legal market.

CLE is also a measure of the accountability of the profession. The days of the general practitioner have gone and specialists have entered the scene. The competence of the legal practitioner is critical for clients and any dilution in the quality of services rendered is bound to be counter productive. CLE is the major instrument of all professions to ensure minimum competence in the delivery of services. It enhances professionalism, accountability and public respect for the profession. In short, CLE is indispensable for maintaining professional competence and its social relevance.

Competence or quality is the product of knowledge, attitudes, values, skills and ability to apply them for professional tasks. Legal education in colleges hardly teaches anything more than knowledge and that too inadequately. Some skills are acquired in early days of practice through observation and participation. CLE alone can possibly give the rest to provide competence to a young lawyer for whom professional bodies at present have no alternatives to offer. In the past, a year-long apprenticeship and a bar examination hopefully provided some insight into abilities, values and attitudes. They have been abolished and the new entrants are left to their fate!

What makes a professional

What are the elements of professional attitude? It has to do with sensitivity to professional responsibility, due diligence in handling clients’ affairs, loyalty to the profession, orderliness in management of tasks and commitment to quality in all circumstances. These are not inherited but learnt and cultivated. Continued self-education is the attribute of a professional.

Values too are learnt and cultivated by professionals by deliberate application of mind. Competent legal practitioners who have won public esteem have a keen sense of personal and professional ethics. Competence and its continued maintenance is itself a professional value. Integrity and honesty always pay in a profession. Respect for the rule of law is another value which no professional can ignore at any time. Obligation to serve the cause of justice or fight injustice is an abiding value of a legal practitioner. CLE can make value education a central focus of its programmes and help new entrants to the profession be aware of the role of values for professional competence. It is in the sphere of upgradation of knowledge particularly in emerging areas of legal practice where CLE can help the most. Knowledge is not just an awareness of rules; it includes comprehension, application, analysis, synthesis and evaluation. Good law colleges attempt to teach through clinical methods, application of knowledge to solve problems through analysis, synthesis and evaluation. In India such colleges are few. There are very few teachers trained in clinical teaching methods. Therefore, there is a tremendous vacuum in professional training which is waiting to be addressed through CLE.

Finally, professional competence in the field of law is the outcome of skilled application of knowledge in which proper skills are decisive to the outcome. These include interviewing and counselling skills, negotiation and mediation skills, research and writing skills, communication and advocacy skills, drafting skills, fact gathering and articulation skills, time and stress management skills, etc. all of which can be acquired through supervised practice supported by guided theoretical learning. CLE is the best mechanism to learn skills particularly in the context of the explosion in knowledge and technology.

IBA-CLE Chair

For the first time in the history of legal education, the National Law School of India University, Bangalore, has established a Chair on Continuing Legal Education with support from the International Bar Association, the Ford Foundation and the Menon Institute of Legal Advocacy Training. A series of CLE programmes for lawyers and law teachers have been announced to help professional development and to enable law schools to set up CLE centres for institutionalising CLE at all levels of the system. While judges have their training academies in every State, the legal profession ended up with no provision for continuing education without which it is in danger of losing its competence to serve the complex demands of a developing society. This is what the Bangalore initiative on CLE is addressing though in a small way for the legal profession in India. Hopefully, in the next two or three years, a network of CLE institutions will come up around the country which will pave the way for enhancing the professional competence of advocates and thereby the quality of legal services in the country.

(Professor Menon was the Founder Director of the National Law Schools at Bangalore and Kolkata, and of the National Judicial Academy at Bhopal.)

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Ombudsman for Legal Sector

A representation of the Lion Capital of Ashoka...

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Government is working on a Bill that envisages an Ombudsman to look into the complaints against lawyers and a Legal Services Board that would regulate law practices in the country. Giving this information in written reply to a question in Rajya Sabha, Shri Salman Khurshid, Minister of Law & Justice informed the House that a draft Bill titled “Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the interest of Clients and Promoting the Rule of Law) Act, 2010” was drafted and uploaded in the website of the Ministry of Law & Justice inviting comments and suggestions of the stakeholders. Comments are being received. Shri Khurshid said the draft Bill will be reviewed based on these comments.

As per the proposed Bill, the complaints against the legal professionals will be examined by the Ombudsman and the report of the proposed Ombudsman will be forwarded to the Disciplinary Committee of the Bar Council of the State with a copy to the proposed Legal Services Board. The Disciplinary Committee of the Bar Council shall consider the report of the Ombudsman and if such report is not accepted by the Bar Council, the reasons for rejection of the recommendations of the Ombudsman shall be explained in detail and the same shall be published in the manner prescribed by rules. This will not in any way minimize the role of Bar Councils, Shri Salman Khurshid said.

However, Clauses 30-33 of the proposed draft Bill empower the Board to issue directions to the Bar Councils in certain specified circumstances and enables the Board to approach the High Court for enforcement of the directions if the Bar Councils fail to comply.

We need a clean man in black robe: CJI

PTI NEWS

NEW DELHI: Concerned over judiciary‘s image coming under a cloud in the wake of corruption charges, Chief Justice S H Kapadia on Sarurday said there was a need for “clean man in black robe” and asked the political class not to protect corrupt judges.  “We have to live by examples. We need a clean man in black robe to uphold the independence and integrity of the judiciary,” the CJI said while cautioning the judges from inevitably ending up in the political arena. The CJI said judges should maintain self restraint and avoid being in touch with lawyers, political parties, their leaders or ministers and high ranking judges should not interfere in the administrative work of court lower to it.

“Internal interference from a high ranking judge which, if resisted, could lead the lower ranking Judge being transferred or being denied promotion also needs to be deprecated. Similarly, political protection should not be given to corrupt judges,” Kapadia said at the fifth M C Setalvad memorial lecture.

“A judge must inevitably choose to be a little aloof and isolated from the community at large. He should not be in contact with lawyers, individuals or political parties, their leaders or ministers unless it be on purely social occasions,” he said. The CJI’s remarks assume significance as the issue of corruption allegedly involving sitting judges P D Dinakaran and Soumitra Sen, who are facing impeachment proceedings in Parliament, were raised by other speakers. Senior advocates Anil Divan and P P Rao voiced serious concerns over judges being involved in corruption.

The CJI began his speech by saying that “I am an eternal optimist and I can see that in future things are going to improve as far as integrity and as far as credibility of the Supreme Court is concerned.” Kapadia said the judges should not accept any type of patronage and stick to judicial norms. “The judge should not accept patronage through which he acquires office, preferential treatment or pre-retirement assignment. These can give rise to corruption if and when quid pro quo makes a demand on such judges”, he said. Kapadia stressed the need for protecting the integrity of judiciary saying “judges must keep the part of impartial, objective, fearless and independent justice alive”.

The CJI said he has avoided socialisation and even preferred not take the membership of any golf clubs as it would have left him mingling with advocates, politicians etc giving a negative impression to the people. “Frequent socializing with particular members of the legal profession or with the litigants, including potential litigants, is certain to raise, in the minds of others, the suspicion that the judge is susceptible to undue influence in the discharge of his duties,” he said. The CJI said there should be a fair criticism of judgements and irresponsible and illegitimate criticism should be avoided.

“Public and media criticism of judges and judgments is a common feature today throughout the common law world. Like other public institutions, the judiciary must be subject to a fair criticism. “But, what I am concerned with is response to criticism, particularly, criticism, that is illegitimate and irresponsible. “In the context of such illegitimate and irresponsible criticism, it must be borne in mind that love for justice is rare – what most people desire is justice which favours them.”

New law against ‘uncle judges’ coming soon

NAGENDER SHARMA IN THE HINDUSTAN TIMES

With the Supreme Court coming down heavily on the Allahabad High Court, saying the kith and kin of some judges were practising as lawyers in the same court, the government proposes to check the widespread trend in the country by making a fresh law.The issue of ‘uncle judges’ was first raised by the Law Commission of India, which advises the law ministry on complex legal issues, in its report submitted to law minister M Veerappa Moily in August last year.

Based on the feedback provided by the commission, the law ministry is now ready with the judges standards and accountability bill to be introduced in the Parliament, which seeks to make it mandatory for judges to follow judicial standards.

Moily was cautious in his response to the unprecedented remarks by the country’s top court about the largest high court.

“It is a serious matter,” was all he was willing to say.

Ministry officials admitted the issue was not confined to the Allahabad High Court alone. “We have information about Himachal, Punjab & Haryana and Rajasthan high courts,” said an official.

“Often we hear complaints about uncle judges. As a matter of practice, a person who has worked as a district judge or has practiced as a lawyer in a high court for many years is appointed as a judge, he is bound to have colleagues and kith-kin there,” the law commission had stated.

“Even in government services, particularly, Class II and upwards, officers are not given postings in their home districts. In the same way, judges whose kith and kin are practicing in a high court should not be posted there. This will eliminate uncle judges,” the report stated.

Following the strong observations by the commission, the ministry, in its new bill, has made a specific reference to address the issue of ‘uncle judges’.

“No judge shall permit any member of his immediate family (including spouse, son, daughter, son-in-law or daughter-in-law or any other close relative) who is a member of the bar to appear before him or be associated in any manner with any case to be dealt by the judge,” states section 3 of the bill.

Further the definition of close relative includes brother or sister of the judge, brother or sister of the spouse of the judge and brother or sister of either of the parents of the judge, according to the proposed law.

It also debars any practicing lawyer who falls in the family and relative category of the judge to use his residence “for their professional work.

http://www.hindustantimes.com/New-law-against-uncle-judges-coming-soon/H1-Article1-631830.aspx

Law Ministry Calls for Comments/ Suggestions – ‘ Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010’

Draft for ‘ Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting  the Rule of Law) Act, 2010’ on the website – request for suggestions – reg.

With reference to the above cited subject, it is informed that “ Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law), Act,2010” is proposed for establishment of Legal Services Board on the lines of the Legal Services Board in U.K. suiting the Indian situation. A copy of the proposed Act is available on the website of Ministry of Law and Justice. Comments are invited from all the Stake Holders (Public in general/Legal Fraternity/Educationalist etc.) on the aforementioned proposal.

Any other suggestions regarding amendments in the proposed Act may also be sent within 30 days. The comments can be sent to the undersigned.

M.A.Khan Yusufi

Joint Secretary & Legal Adviser

Tel. No. 23385383  Room No.406- A. Wing,

Shastri Bhawan New Delhi-110001.

 

THE PROPOSED DRAFT LAW CAN BE SEEN AT:

Draft for ‘ Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010’

India: Prohibit Degrading ‘Test’ for Rape

HUMAN RIGHTS WATCH

Forensic Exams Should Respect Survivors’ Rights to Health, Privacy, and Dignity

(Mumbai) – Many Indian hospitals routinely subject rape survivors to forensic examinations that include the unscientific and degrading “finger” test, Human Rights Watch said in a report released today. It urged the Indian government to ban the practice, used to determine whether the rape survivor is “habituated” to sexual intercourse, as it reforms its laws on sexual violence. The 54-page report, “Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors,” documents the continued use of the archaic practice and the continued reliance on the “results” by many defense counsel and courts. The practice, described in outdated medical jurisprudence textbooks used by many doctors, lawyers, and judges, involves a doctor inserting fingers in a rape victim’s vagina to determine the presence or absence of the hymen and the so-called “laxity” of the vagina. These findings perpetuate false and damaging stereotypes of rape survivors as “loose” women. Defense attorneys use the findings to challenge the credibility, character, and the lack of consent of the survivors.

“This test is yet another assault on a rape survivor, placing her at risk of further humiliation,” said Aruna Kashyap, women’s rights researcher at Human Rights Watch. “The Indian government should heed demands of Indian activists to abolish this degrading and useless practice.”Finger test findings are scientifically baseless because an “old tear” of the hymen or variation of the “size” of the hymenal orifice can be due to reasons unrelated to sex. Carried out without informed consent, the test would constitute an assault, and is a form of inhuman and degrading treatment, Human Rights Watch said.”I was so scared and nervous and praying all the time: ‘God, let this be over and let me get out of here fast,” the report quotes one rape survivor as saying as she described her experience of a forensic examination.

The Indian government amended its evidence law in 2003 to prohibit cross-examination of survivors based on their “general immoral character.” The Indian Supreme Court, whose decisions are binding, has described opinions based on the finger test as “hypothetical and opinionative,” and has ruled that they cannot be used against a rape survivor.Although these developments have helped curtail the practice, the Indian government has yet to take steps to ensure that all states eliminate it.  There are no nationwide guidelines or programs to standardize forensic examinations and to train and sensitize doctors, police, prosecutors, and judges to survivors’ rights. But the Indian government is currently reviewing laws regarding sexual violence, presenting a unique opportunity for change.

“The Indian government has paid little attention to how health care and forensic services are delivered to survivors of sexual violence,” Kashyap said. “The Indian government should set right this injustice with a comprehensive policy and program for such services.”The report is based on 44 interviews in Mumbai and Delhi with activists, rape survivors and their parents, prosecutors, other lawyers, judges, doctors, and forensic experts. Research also included a review of forensic examination templates used in those cities, and an analysis of 153 High Court judgments on rape that referred to the finger test findings from 18 states. It finds that the finger test-related information continues to be collected and used.

Forensic examinations are a harrowing experience for many rape survivors, who are shunted from one hospital or ward to another for various aspects of the examination. Often doctors insist that the survivor must make a police complaint when she approaches them directly, which can intimidate her. Further, inserting fingers into the vaginal or anal orifice of an adult or child survivor of sexual violence during a forensic examination can cause additional trauma, as it not only mimics the abuse but can also be painful. Some doctors in India conduct the finger test with little or no regard for a survivor’s pain or trauma, Human Rights Watch found.

Many High Court judgments reveal that doctors have testified in court that having one or two fingers inserted into the vagina is “painful” or “very painful” for the survivor.  And when the survivor did not experience any pain –  if two fingers could be inserted “painlessly” or “easily” – then she was described as being “habituated to sex.””Survivors of sexual violence have the right to legal recourse without being further traumatized in the process,” Kashyap said. “The health and criminal justice systems should work together to ensure that they do not perpetuate damaging stereotypes of survivors.”

The Maharashtra and Delhi governments continue to recommend the finger test in their forensic examination templates. For example, as recently as June 2010, the Maharashtra state government introduced a standard forensic examination template that includes a series of questions about the hymen, including the number of fingers that can be admitted into the hymenal orifice. Early this year, the Delhi government introduced a forensic examination template that asks questions about the hymen, including whether it is “intact” or “torn,” the “size of the hymenal orifice,” whether the vagina is “roomy” or “narrow” and has “old tears,” and even asks the examining doctor to give an opinion whether the survivor was “habituated to sex.” Much of the Delhi template resembles a template created by the Indian Medical Association and disseminated to doctors across the country between 2006 and 2008.

The World Health Organization’s (WHO) “Guidelines for medico-legal care for victims of sexual violence” recommends that health care and forensic services be provided at the same time, and by the same person, to reduce the potential for duplicating questions and further traumatizing the survivor of sexual assault. It states that health and welfare of a survivor of sexual violence is “the overriding priority” and that forensic services should not take precedence over health needs. It also says forensic examinations should be minimally invasive to the extent possible and that even a purely clinical procedure such as a bimanual examination (which also involves the insertion of two fingers into the vagina) is rarely medically necessary after sexual assault.

The Indian government should use its ongoing reform process for laws relating to sexual violence to prohibit the finger test and standardize the medical treatment and forensic examinations of survivors of sexual violence in line with the rights to health, privacy, dignity, and legal remedy, Human Rights Watch said. The government should introduce special programs to sensitize doctors, police, prosecutors, and judges to the rights of survivors, and set up multidisciplinary teams in every government hospital with doctors trained to be sensitive to survivors and with training and equipment to conduct forensic examinations in a manner that respects survivors’ rights.

Sample Testimony From the Report

The clerk told me a male doctor will conduct the test [forensic examination] and asked me whether that was ok. I said “yes.” But other than that, I did not know what they were going to do. I was so scared and nervous and praying all the time: “God, let this be over and let me get out of here fast.” I did not even know it was going to be like a delivery examination [an internal gynecological examination].

– Sandhya S. (name changed), adult rape survivor, Mumbai, August 2, 2010

In cases of very young girls – girls below [age] 12 or 13 – they [police officers and hospital staff] believe it is a case of sexual abuse. But if they are older, then they believe that the girl is trying to falsely frame someone. Their belief changes the way they address the survivors. They are very rude and disrespectful. They will say things like, “Why are you crying?” “You have only been raped.” “You are not dead.” “Go sit over there.” And order them around.

Dr. Rajat Mitra, director, Swanchetan, a nongovernmental organization that provides counseling services to rape survivors, Delhi, May 25, 2010

Where the defense takes the line that there was consent [to sexual intercourse], usually they also look to medical evidence for support. And if the medical report says anything about the finger test, then they draw it out in court – saying she was “habituated” so consented and is falsely implicating the accused.

– Dev D. (name changed to maintain anonymity as requested) a former public prosecutor, New Delhi, May 22, 2010

The finger test is relevant for the defense especially if the prosecutrix [term used to refer to a rape survivor during trial] case is that the woman is unmarried [as opposed to a married woman who is assumed to be “habituated to sex”]. Then if the medical report says that two fingers have passed, the defense can show that she is habituated. This shakes the testimony of the prosecutrix.

– Radha M. (name changed to protect identity), a former chief public prosecutor, location withheld, May 11, 2010

Sample Extracts From Judgments

“Though the girl was aged about 20 to 23 years and was unmarried but she was found to be “habituated to intercourse.” This makes her to be of doubtful character.”

– Jharkhand High Court, 2006

“She was complaining pain and the vagina was admitting 1½ finger [sic] …. From the medical report it is clear that the prosecutrix was not a girl of lax moral and she was not “habituated to sexual intercourse” and most probably, that was her first experience as the doctor has observed reddishness on her vagina and blood secretion and pain on touching the vagina.”

– Chhattisgarh High Court, 2007

THE COPY OF THE REPORT