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Ethics and the Legal Profession in India

Ethics and the Legal Profession in India (Program)

Sushant Chandra, Jindal Global Law School (India); Deergha Airen, Hidayatullah National Law University (India)Hidayatullah National Law University (India); and Badrinath Rao, Kettering University (US) (Moderator)

Ethics and the Legal Profession in India

Sushant Chandra: Indian Regulations on Ethics: The Nexus with the Backlog of Cases

Penumbras in the ethical regulations and existing rules contribute majorly, if not entirely, to the backlog of cases in the Indian Courts. This paper aims to shed light on the inadequacy of the existing statutory text in catering to the requirements of satisfactory disposal of cases. Lack of integrity in the legal system is responsible for this systemic failure. This paper shall primarily delve into ethical regulations and existing rules in exploring their bearing on the pendency of cases. The Indian state of Uttar Pradesh, which has the highest pendency of cases in the country, shall be taken up as an illustrative model. Empirical data and surveys from the State should give the audience an idea about the lackadaisical attitudes towards the pendency of cases and the authorities’ comfort with the existing model of rules. There are umpteen local practices, including frequent adjournments without due cause, strikes, and references, which have made a dent in the efficient functioning of the courts. There are also hierarchical arrangements between the High Court and the subordinate courts which stand in the way of realizing an individual’s liberty to speedy justice and further contribute to the backlog of cases. The last part of this paper shall set out suggestions and recommendations with a view to reducing the pendency of cases.

Sanjana Roy and Deergha Airen: Judicial Ethics in India: Is it Getting Jeopardized by the Excessive Interference of the Executive?

This paper states that the strength of the Indian Republic can be said to rest on the doctrine of separation of powers between the legislature and the executive on the one hand and the judiciary on the other. But this independence given to the judiciary appears to be only on paper as by India’s experience, judicial independence has often suffered and its ethics given way to executive high handedness which we will analyze in this paper through case studies. From the days of imposition of national emergency in 1976 the hints of cornering the judiciary in India is evident. In the present, the National Judicial Appointments Act, 2014 has created a debate in the country due to its provisions which favor the executive. Through this paper, we will study the method of appointment of judges in United States of America and United Kingdom and see whether NJAC really favors the executive.    

Badrinath Rao: What Makes Indian Lawyers 'Unethical'? The Challenges of Institutionalizing Legal Ethics in India 

Unlike advocates of an earlier epoch who were held in high esteem mainly for their stellar role in opposing British imperialism, India’s 1.3 million lawyers live under a cloud of opprobrium today.  Their conduct, lately, has been egregious and unedifying. Indian lawyers have repeatedly gone on strikes disregarding Supreme Court verdicts holding that strikes and boycotts constitute professional misconduct. They routinely resort to violence and vigilantism, sometimes within the court premises. Lawyers are notorious for subverting the legal process, tampering with evidence, coaching witnesses to lie in court, moral policing in some instances, refusing to provide legal counsel to defendants in ‘nationalist’ cases, blatantly refusing to obey the law, and disrupting court proceedings.  To exacerbate matters, according to some reports, about 25% of so-called lawyers have no legal training; they operate on the basis of fake credentials. 

Received wisdom ascribes unethical behavior to the burgeoning ranks of ill-schooled riff-raffs in the profession, declining professionalism; and, the lack of a moral compass. Scholarly critiques blame systemic lacunae: effete regulation by the Bar Council of India, the apex self-regulating statutory body for policing the profession. Others have faulted the structure of the legal profession where the winner takes all, leaving hordes of less fortunate advocates scrambling for survival. The preponderance of patron-client relationships, family and kin networks also stymies the prospects of first generation attorneys. The resulting frustration supposedly leads to unruly conduct.  

Against such conventional interpretations, I argue that the unethical conduct of lawyers, particularly those in the lower echelons of the profession, must be understood in the context of the complex socio-economic, political, and cultural forces at work in India today. Indian society is marked by sharp social cleavages, sclerotic, delegitimized institutions, low levels of human development, widespread corruption and the absence of norms, predatory capitalist development, rising income disparities, and extremely limited opportunities for upward mobility. The most striking feature of contemporary India is the near total abdication by the state of its commitment to social inclusion and the common weal. This has led to a massive trust deficit and unleashed the basest instincts of different stakeholders. Exploiting this free-for-all scenario, lawyers, as a well-knit special interest group, are vying for a greater share of power and privileges in a system that is overrun by buccaneers and brigands. Immorality is kosher in this situation. 

Unscrupulous prosperous lawyers deftly cover their ethical lapses. Many in the lower ranks, who have little else than their raw physical power and collective might, assert themselves in the only way they can: through brute force and hooliganism.  They lack decent legal education, have virtually no training in ethics and the liberal arts, and know little English, the language of the higher judiciary. Such blighting circumstances notwithstanding, mere membership in the legal fraternity confers on them privileges of professional identity which they leverage in their dealings with a callous state, clients, law enforcement, and the judiciary. Besides, it is the quickest avenue for vertical mobility. 

As perverse as it might seem, the ‘unethical’ behavior of lawyers, particularly those at the lower levels, is emblematic of their quest for empowerment and identity, both of which the elites have impeded for a long time. Legal ethics, thus, is an epiphenomenon of a larger metamorphosis currently underway in India. From a largely feudal society, it is transitioning, in a painfully slow and sporadic fashion, into a modern democratic state. Being a low-intensity democracy, the Indian state lacks the capacity and commitment to catalyze this process. The grotesque moral aberrations of the legal fraternity are just one facet of this transformation.   

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