The BCI has done a lot by laying down standards of advocacy and standard-setting in LLB education; however, time and again, the apex court did not hesitate to strike down BCI rules, which BCI knows is indispensable in Indian conditions. The multilateral legal education control has added much to the prevailing ambiguity and grey areas. A ‘coherent national policy’ has been found missing for long barring half-hearted patchworks in legal education.

By narrowing down our focus on the purpose of the seminar, we perceive the importance of revisiting professional ethics in the context of bar-bench civil society interrelationship, among others. It partakes more of self-exploration rather than an attempted deconstruction of the existing parameters and paradigm.

Professional ethics as the appellate judiciary perceives of, has been narrowly defined in the domain of legality. The civil society, however, enlarged its perception of the same and measures its impact on the former.

The Supreme Court made minimal efforts towards describing professional misconduct in a number of cases. From re Solicitor Exparte the law Society (1912) KB to privy council decision in George Frior Grahame V Attorny General, Fiji AIR 1936 PC 224 (approved in apex court decision AIR 1963 SC 3713) and further to Chouraria V. Murli, AIR 2004 SC 2440, certain criteria constituting professional misconduct are made discernible - however, a huge pool remains untapped so far, as the human ingenuity to commit wrongs is definitely inexhaustible. It is all the more so in class, caste, poverty-ridden underdeveloped civil society, where the majority has been boldly disempowered by the class and power elites.

The test to be applied to prove ‘professional misconduct’ is if the advocate on roll has been found to be ‘unworthy to remain a member of the honorable profession’, is ‘free from suspicion’, has done something to undermine the ‘confidence of the public in the fidelity, honesty and integrity of the profession’, and if he has not rendered ‘improper legal advice’ to his or her client (Pandurang, AIR 1984 SC 114.

In an interesting case where the advocate respondent assaulted and kicked the complainant, the apex court made an elaborate survey of misconduct including ‘a transgression of some established and definite rule of action’, whereas the advocate being an officer of the court has to make him worthy of the ‘confidence of the community in him’. (Chouraria, AIR 2004 SC 2440 at 2442-43) ‘confidence’, ‘worthy’, ‘proper’ are difficult to be understood in a corrupt nation. Corruption is everywhere in the world, India is not an exception. A small difference, as my good self could appreciate is that: in developed civil society, corruption is a rare exception whereas in India and in the region honesty is a rare commodity to be explored. The profession has to go an extra mile.

In its extremely limited reach, the apex court has observed misconducts in advocate's misappropriation of client's money (Harish Chand, (2002) 2 S.C.C 67), advocate's refusal to return case files when demanded by client [Sexena (2000)7 SCC 264], betraying the confidence of client and fraud on the court [Chadha (2001) 2 SCC 221], advocate writing a letter to client demanding money to bribe the judge [Yadav, (2001) 6 SCC 1] and misappropriation of client's money, breach of trust [Bar Council AP (2003)1 SCC 102], among others.

An advocate has committed daylight robbery-[not a Robinhood brand] - by obtaining signature of an illiterate client and his entire real estate subsequently thereafter. Case is pending. Suppression of facts where crores of rupees are involved, charging exorbitant fees (without issuing money receipts), legitimization of HAWALA-type infamous ‘Dui Numberi’ accounts with smart taxation advocacy, 90% income tax evasion by the creamy layer of advocates, abnormally high percentage of dividend-sharing in motor vehicles claims cases keeping aside the abrogated statutory stipulations, long term adjournments by some sections leading to the penury of the clients and bleeding the national economy to white by section of infamous corporate lawyers. The poverty and PIL advocates could be counted by fingers.

The public has noted the following anomalous behaviors irrespective of the section 35 net which is too small to catch the big sharks in the blue lagoon of Indian justicing. The net is very small. Even Indian law schools suffer from the ‘capital divide’ - 450 poverty low school and a couple of DOON- School type national law colleges which serve primarily the Bourgeois instincts, needs, and the iniquitous globalization. Every institution has plus points not to be overlooked though. The issue is: whose interest do you serve best - let alone the virtuous white man’s burden concept creeping into the mindset of the power-elite.

Notwithstanding incapacity of the Anglo-Saxon legal system which India has adopted without major innovations to hook on the CROOKS, the clever, the carpo-regime and Mafiosi in civil society, peoples’ cognition identify the hard realities of professional misconducts, irrespective of the technical purview of BCl’s local and state disciplinary committees. If Prevention of Corruption Act, 1947 is actually operative to the last letter, every affluent Indian barring a few is supposed to be in the prison as big as India. The analogy made in this context is not totally baseless. We have to clean up from within the bar, the bench and civil society. It is never too late. I am afraid I have gone too far inside the intellectual chakra- vyahu erected by post- British Indian power elite, who are entrenched in deep rooted class prejudices.

A few routine professional misconducts discernible to the laymen are known to spread over to financial, spiritual and behavioral parameters. These anomalies call for correction irrespective of the Section 35 of the Advocates Act and its technical limitations whatsoever. A crook or criminal acquitted by the court on technical grounds has not ceased to be so in the peoples’ court and consciousness. The common human reasoning differs from the judicial reasoning: A ‘crook is a crook’ in common sense, although the committee lets him loose. I wish that the learned bar and elites would graciously bear with my inevitably brutally frank proposition at the end of the day. It has been near impossible to find a clean water glass to drink from the muddy pond.

The bar and the bench are honorable; however black sheeps tarnish the institutions which still call for salvation from the British colonial hangovers and attitudes. Poor Indian is unwanted in the fragmented rich India. For whatever causes there might be, the Swindlers mob in and find a paradise in the respectable and demanding profession. Match fixing or case-fixing are chronic malaise. Betrayal of clients and negligence to profession has been visible to the public. Touts and middleman are at large in lower courts. Their influence will increase once the profession is commercialized by the law.

Obnoxious corrupt practices, Mia-Bibi role model mutual adjournments, unholy trinity of corrupt judges, corrupt lawyers and corrupt officials have transcended the threshold of statutory misconduct. I need not repeat what not less than two Chief Justices of India lamenting at the corruption committed by a large section of the judiciary. Nobody is ready to bell the cat. The cat has gone out of the bag. Even senior advocates receive cases and fees, leaving very little job to the juniors. We don't miss the beauty and majestic presence of the jungle despite the distortionist and shabby image of a few ugly, thorny trees. The profession is credible, respectable and majestic too.

The speaker notes with caution that colonial legal heritage shall no longer dissuade creative professionals from being innovative-definitely not in the sense of grafting pre-1960-Pro Bono affirmative action in the garb of SAL or PIL, two decades later in Indian judicial polity. Even in the United States, bar and the university academia had suffered a pro and anti-CLSM divide De-construction and institutional re-construction have been assessed.

Our concern is at the loss of precious court-room hours and justice delivery system. Filibustering by gerrymanderers and courtroom hijackers made surreptitious piracy of justice. By way of developing a concept of ‘substantive professional ethics’ beyond Section 35 territory, the bench and the bar could curb abuse of ‘stare decisis’, repetitive arguments, the cult of robe, disturbing sermonisation and procedural piracy in substantive areas of justice. We may easily define all of these anomalies, but their adverse impacts are widely known. Streamlining the deviant filibusterers and spotting the menace would do wonders. Section 35 punitive measures are not enough. We have to discover the genius of the Indian bar, their creativity and catastrophe- management of mountains of backlogs. Indian bar has done something; it has to clean up, dress up and to run extra miles.

The Indian bar draws no boundary between barristers and solicitors as the UK does, nor has it taken anti-communist oath unlike the ABA of the USA which resolved in 1950, “that all lawyers attest to their loyalty with an anti-communist oath”. The Indian bar could also take pro-social justice oath or at least remain be prepared to tune the professional ethics to social obligations and social justicing.

We wish that the structure, vision and objectives of Professional Ethics could be fairly re-examine by taking into serious consideration, the demands of civilizational values, spirit of the time and national commitment to attaining a performing, egalitarian justice-delivery-system. The Seminar will unfold the drama, its narrative and above all, what the future holds for us all in the civil society with a modest beginning we make here.

*** This paper was the keynote address read out by the author at a seminar of the same topic held at Jorhat, Assam

(Courtesy: The Sangai Express)