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Lawyers for a cause

Yogesh Pratap Singh, Nachiketa Mittal |

Debates on the determinative attribute of a lawyer and locating lawyers’ role in a justice-oriented society has a long history. We are reminded of a famous film “Three Days of the Condor” (1975), where freelance assassin Joubert (played by Max Von Sydow) eulogizes his preferred profession to an idealistic young CIA agent (played by Robert Redford): “Well, the fact is, what I do is not a bad occupation. Someone is always willing to pay…. [I]t’s really quite restful. It's almost peaceful. No need to believe in either side or any side. There is no cause. There's only yourself. The belief is in your own precision.”

Could Joubert’s description if applied to lawyering accomplish the constitutional ideals practiced by the legally trained freedom fighters of India who later took significant positions to shape the destiny of this democracy? Going beyond Joubert’s definition poses fundamental problem of identifying the genuine role of lawyering. How does one determine what fits within the constitutional rubric? A review of the literature reveals a wide array of lawyering viz. cause lawyering, social justice lawyering, public interest lawyering, activist lawyering, lawyering for social change, progressive lawyering, transformative lawyering, critical lawyering, social conscious lawyering etc. required for a constitutional democracy.

Cause Lawyering

World history stands testimony to the fundamental role of lawyers in laying the foundation of the rule of law in the largest democracy – India – and the biggest economy – the United States. The father of our nation was a lawyer. Jawahar Lal Nehru, the first Prime Minister of India was a lawyer. Amongst others the great President of the United States, Abraham Linclon was also a lawyer. Incidentally, they all share a strong virtue of lawyers. All of them had a vision for their nation. Notably, they were not merely legal practitioners; instead, they practiced law for the betterment of a society.

Mahatma Gandhi used his legal knowledge and deftness for cause-based advocacy. So did Nehru and many other stalwarts of the freedom struggle. India has a strong legacy of ‘cause lawyering’, inherited from the framers of our democratic republic. Societies have grown tremendously over last couple of centuries. Political, economic and cultural value system has witnessed an overhaul. Resultantly, the role of a lawyer has undergone several forms of re-negotiation with new approaches and needs of Indian polity essentially. It no longer confines to the spirit of ‘cause lawyering’ the way it was envisioned by our forefathers.

footprints of Gandhi, Nehru, Patel and Ambedkar as sentinels of social justice and ‘cause lawyering’ have become blurred. Almost every law student in India gets influenced by the thought-provoking deliberations recorded in the ‘Constitution Assembly Debates’. Most of the gentlemen who contended for fundamental rights, the directive principles of state policy and limitations on the State’s power in several other ways, were all lawyers. It is never easy to ignore such vibrant legal arguments when we study the Constitution of India.

Flimsy Culture

The Constitution makes a preambular promise to all its citizens – justice, liberty, and fraternity. When justice is the first promise of the Constitution, it is the bounden duty of the Court, lawyers and all other stake holders to bridge the gap between justice and society.

Charles Epp in his book “The Rights Revolution” makes a comparative analysis of the growth of civil rights in United States, Britain, Canada, and India within their specific Constitutional and cultural contexts. His central argument is around “how the rights revolution developed and reached its greatest height and strength through an interaction between supportive Judges and the support structure for right-advocacy litigations”. Epp’s narration is a true import of the struggle for civil rights globally.

Most often, recognition of individual rights in democratic societies could be achieved due to the constant efforts of several pressure groups at the local level. The political leaders at the top had least to contribute. Judicial attention to uphold individual rights then formed part of larger civil rights movement. Rights advocates have always been the flag- bearers of such deliberate and strategic movements globally.

The support structure in the form of rights advocacy organisations, rights-advocacy lawyers, and sources of financing, particularly government-supported financing had remained crucial in ensuring the continuance of ‘cause’ lawyering. Epp aptly identifies that in the Indian condition it could not sustain long due to weak and inadvertent presence of support structures.

The Supreme Court of India has remained the ultimate hope. Numerous judgments upholding the constitutional rights of deprived and disadvantaged social groups have, nonetheless, ensured life to ‘cause lawyering’ in India. However, much more is yet to be achieved. There is a heavy onus on the future generation of lawyers to carry this legacy and restore the equilibrium of ‘cause lawyering’ championed by our forefathers.

Challenges

Those who practice cause lawyering are fundamentally swimming upstream, that is against the general tide of advocates as neutral navigators. Unless one is serious about his direction and the choices he makes, he will likely grow tired and start floating along with the general tide. We all get drained at some point in our struggle and lose our direction. The goal must be to remain committed to our agenda. Even when we lose, we must constantly strive to reorient ourselves and start all over again. It is a cultural transition for social justice lawyers to digress from the tradition practice of law at the Bar.

Such a lawyer can no longer remain neutral in character as originally trained. In most cases, ‘cause’ lawyering is a path for a loner. It demands high sense of ethical integrity for a social agenda. It calls for imbibing constitutional values and leading a life with example. Often, it forces a lawyer to establish a balance between social needs, rights of the deprived classes, constitutional goals and the traditional legal practice. Choice of ‘cause’ lawyering could be easy but the journey isn’t.

India at 70

The Indian legal profession has grown over a short period of less than 70 years to possibly become the world’s largest and most influential in the governance of the country. India has close to 1.2 million lawyers whose professional conduct is regulated by the Bar Council of India (BCI) and State Bar Councils. But there is widespread acknowledgement of unpleasant failure of Bar Council of India in this regard.

The Supreme Court in V. Sudeer v. Bar Council of India also acknowledged the sinking values of the legal profession and the crying need for improving standards of legal education and the need for entrants to be equipped with adequate professional skill, expertise and a pledge to carry constitutional values. Situation is so ugly that even President Pranab Mukherjee had to express his serious concerns. He asked law schools to focus on research as future lawyers must be equipped with necessary knowledge and skill to make them socially and globally pertinent.

The cause lawyering concept however, raises a host of peripheral questions. What kind of political goals must be served to qualify? What kind of practices or activities count? How much must the traditional concept of lawyering be involved? How much commitment is required to “rule of law”? What will be the reward for cause lawyering? Will government support it? Unless some of these questions are resolved in a planned manner, a rights revolution in our country will remain a distant dream. The Ministry of Law and Justice, Government of India prepared a draft of “Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010” and invited public opinion.

Modelled on the Legal Services Board in the United Kingdom, the draft bill aimed to accomplish diverse objectives i.e. “the establishment of the Legal Services Board and its functions; to make provision for and in connection with, the regulation of persons who carry out the activities of legal practitioners; to make provisions for the establishment of an ombudsman for complaints against the professionals and for a scheme to consider and determine complaints against the legal practitioners; to make provision in respect of providing legal services free of charge and for connected purposes.” The Bill disappeared from debate and lawyers continue to behave in a disorderly manner.

Lawyers have a critical role to play in a developing society. All the more so in a constitutional democracy such as India which is a living epitome of the rule of law and follows core value of a welfare state. Essential socio-economic changes for steering in that ideal have to be brought about by due process of law. Rising investments, multiple contracts, and increase in employment will bring in their wake work place disputes, violations of service laws and abuse of natural resources. India cannot ignore such rising concerns.

We are also home to thousands of refugees of war, natural disaster and terrorism. Under such complex circumstances of ensuring harmonious integration of both social welfare and capitalist policies, it is young Indian lawyers who will have to lead the nation. The enhanced and sophisticated quality and character of legal profession in India will not only determine the quality of the judicial process but will also condition, forecast and determine the future of the country.

The writers are, respectively, Deputy Registrar (Research) and Assistant Registrar (Research), Supreme Court of India.