Struggle for existence, rights and self-preservation has always been found since the existence of living being. When people lived in jungles the rule of “survival of the fittest” and “might is right” prevailed. As civilization grew rights and responsibilities began to be crystallized, social behavior were to be regulated and people were required to define relationship with each other and inter-se rights and obligations had to be determined. Unwritten laws of the tribes were enforced by the chief of the tribe and with the creation of families by the head of the families. They were considered to be wise men whose fiat prevailed and was enforced.
Every civilized society requires a justice delivery system. A study of judicial administration in ancient India (Itihas) reveals that originally administration of justice was not a part of State’s obligation. The aggrieved party used to sit in ‘Dharna’ or ‘Satyagrah’ in front of the house of the wrongdoers and did not allow them to move till the claim was satisfied.
With the expansion of State and the royal power, King was regarded as the fountain and origin of justice and gradually an elaborate system of judicial administration came into existence. Various Dharmashastra, Arthshastra and Neetishastra indicate some details regarding justice delivery system. According to these shastras King was the fountain head of all judicial systems. He was required to spend some time for adjudication of disputes among his subjects. His duty was to protect his subjects and punish the wrongdoers. These shastras also indicate the laws that were to be administered. Local usage and customary laws which were not contrary to Dharamshastra were also enforceable. It further indicates variety of courts and their hierarchy.
According to Brihaspati, there were four types of Courts :
- Movable Courts
- Stationary Courts
- Courts deriving authority by the King and;
- Court presided by the King himself
The Movable Court was for the benefit of :
- Forest dwellers
- Caravan-sarai merchants
- Military men
Bhrighu also mentions Courts similar to Brihaspati but adds that often a learned “Brahmin” was appointed for the purpose and he was known as Adhyaksh or Sabhapati. In the beginning Adhyaksh was selected for each particular occasion or dispute but in due course of time, he became a permanent officer of the State which was known as PRADVIVAKA. Apart from the King, this Court consisted of Pradvivaka and three or four jurors. The Court of Pradvivaka was subordinate to the King’s Court.
The third Court was known as the Principal Court. In large towns where royal officers assisted by learned persons administered justice and they were presided over by an Adhyaksh appointed by the King.
In the hierarchy of Courts Yajnavalaya adds another Court known as Popular Court and they are Kula, Sreni and Puga. These popular Courts were essentially non-official but they had some kind of royal authority behind them. The government or the superior Courts refused to entertain any suit except in appeal against the decision of these popular Courts. Various shastras mentioned earlier indicate that justice was administered in accordance of laws or rules which fell under one or the other of the following four heads :
- Sacred Law (Dharna)
- Secular Laws (Vyavahara)
- Customs (Charitra) and
- Royal commands (Rajsasanadesh)
Dharmashastra constituted the sacred law and secular law depended upon evidence. Custom was decided by the opinion of the people and royal edict constituted the administrative law. Of the divisions of laws, Manu and almost all law-givers consider customs as the essential principle in the administration of justice and say that disputes should be decided according tot he customs of the countries and districts; of castes; of guilds and of families.
Under the British Rule “Diwani Adalat” was established. These adalats used to decided cases on the advice of the pandits and maulvees in dispute relating the personal laws. Later diwani adalats were substituted by a hierarchy of courts with the High Courts as the Apex Court in India and their appeals lay before Privy Council in England. Federal Court in India and subsequently Supreme Court came into existence.
In modern times lawyers play a vital role in the justice delivery system. In ancient India I have not found any role of lawyers in the administration of justice. Although, as per the views of Narada, Katyayuna and Brihaspati, skilled help was required in the litigations. The commentary of Narada Smriti indicates that those who were well-versed in the Smriti could provide help for monetary consideration to the parties that appeared be Court. But there is no indication that this activity was pursued as a profession.
The first mention of someone pleading for the cause of seeking justice on behalf of the aggrieved party is found in ancient Greece where the person seeking justice took the help of an orator to plead his cause. These orators were not trained in laws. These orators faced certain obstacles, the first being a rule that individuals were supposed to plead their own cause. But this was usually by passed because of increasing tendencies of individuals to ask for a friend for assistance. Second, a more serious obstacle was that no one could charge a fee to plead the cause of another. But these rules which were obstacles in the way of orators to plead the cause of any other person as a friend were widely disregarded in practice. However, these rules were never abolished. The result was that these orators could not project themselves as professionals during the period of ancient Greece. But such a class of professional emerged during the early ancient Roman period. Originally these persons were not allowed to charge fee for their services, but the ban on fee was abolished by Emperor Claudius who legalised advocacy as a profession. But he also imposed a ceiling on fee. Such a ceiling was not very encouraging for the person to take a profession of being an advocate. However, these Roman advocates were trained like their Greek predecessors in rhetoric and not law. And the Judges before whom they argued were also not law trained.
Subsequently, Rome developed a class of specialists who were trained in law known as “Juris Consults”. These “Juris Consults” were wealthy amateurs who dabbled in law as an intellectual hobby; they did not make their primary living from it. They gave legal opinion on legal issues to all concerns. Roman Judges and governors could routinely consult an advisory panel of Juris Consults before rendering a decision. Thus, the Romans were the first to have a class of people who spent their days thinking about legal problems.
During the Roman Republic and the early Roman Empire, Juris Consults and advocates were unregulated. Any civilian could call himself an advocate or a legal expert but their acceptance depended upon the person’s personal reputation. Later the legal profession had become well established and regulated. With the passage of time more detailed regulation of professional men were enforced. By the fourth century, advocates had to be enrolled on the Bar of a Court to argue before it. They could be attached to one Court at a time. There were restrictions on the number of advocates that could be enrolled at a particular Court. The literature on this subject also shows that by later 4 th Century advocates were studying law in additional to rhetoric. The regulation was that an advocate was required to produce testimonies from their teachers. By the 6 th Century a regular course of legal study lasting for about 4 years was required for being an advocate.
After the fall of the Roman Empire, no one in Western Europe could properly be described as a professional lawyer or a professional canonist in anything like the modern sense of the term professionals. Subsequently with emergence of the Church those connected with it and serving the Roman Catholic Church as priests also became experts in canon laws. A group of people trained in law also emerged later. There appeared to be a merger of the two activities i.e. lawyers and the priests. It appears that there was shift and some men began to practice canon laws and civil laws as a legal profession. There was an effort to regulate the legal profession and canonists of the Church. Some countries in Europe, for example France mandated that lawyers had to swear an oath of admission before practicing in the Bishop’s Court of the region. Subsequently similar conditions were imposed to appear in Civil Courts. By the middle of the 13 th Century, the nucleus of a new legal profession was clearly formed in Europe. The Civil Court in England also joined the trend towards professionalization and a statute was enacted that prescribed punishment for professional lawyers guilty of deceit and subsequently the Mayor’s Court of city of London promulgation regulations concerning admission procedures for lawyers including the administering of oath.
By the end of the 13 th Century a group called apprentice of common law bench emerged. Originally these apprentice were individual attending to become serjeants under the supervision senior serjeants or senior apprentice.
A lawyer is an officer of the Court because the power of admitting a lawyer to practice law is judicial in its nature and is vested in the Courts. Law is not a mere private profession but is a profession which is an integral part of the judicial system of the State and in this sense also the lawyer is an officer of the Court who should uphold the dignity and integrity of the Court. He must exercise, at all times, respect for the Court both in word and action. He must present all matters relating to his client’s case openly and fairly. He should be frank and candid in all dealings with the Court using no deceit.
Legal profession first seems to have emerged in 13 th and 14 th century. At that point of time there were two types of lawyers ‘Serjeants’ (Pleaders) and Attorney. They were basically amateurs, serjeants appeared to argue on behalf of their clients while ‘attorneys’ used to deal with procedural matters, because of their experience they were highly sought after by litigants and they started charging fee also. At time attorneys appears in individual cases but later they started appearing on the basis of general power of attorney. However, all restrictions were removed and law was passed granting litigants the right to appoint and use attorney. These lawyers practicing on full time basis created a budding legal profession.
The British rule in country imported their judicial system in India with hierarchy of Court. The barristers of England, whether of the English or Indian origin, practiced as professional lawyers or they had to pass the Vakil High Court Examinations conducted by the High Courts.
History of legal profession in India can be traced back to the establishment of British Courts. Bengal Regulation was enacted as it was felt that in order to administer justice Courts must have pleading of causes administered by distinct professionals. Only men of character and education, well versed in law could be admitted to plead in Courts and these professionals were subjected to rules and regulations.
When High Court was established in Uttar Pradesh in 1866 it seems there were six types of legal practitioner – 1. Advocate, 2. Attorney, 3. Vakil High Court, 4. Pleaders, 5. Mukhtaars, 6. Revenue Agents.
Legal Practitioners Act, 1879 brought all the six types of lawyers under the control of the High Court. The High Court regulated their enrollment and function even in the subordinate Courts. At the initial stages it was not necessary for a lawyer to be a graduate or even a law graduate to practice law. The High Court used to hold examinations known as Vakil High Court Examination and the persons who were successful in the examination were entitled to practice in Courts. High Curt had the authority to raise the stature of these lawyers from Vakil to Advocates. Some of the famous names of this category of lawyers of the Allahabad High Court are Sir Sunder Lal, Shri Jogendra Nath Chaudhary and Pt. Moti Lal Nehru. Later it became necessary to hold a law degree to become a lawyer.
Bar Counsel Act, 1926 provided the procedure to be followed for enrollment of a lawyer as an Advocate or pleader. Under this Act the High Court had the authority to enroll advocates and frame regulations to regulate lawyers discipline and professional conduct, which continued until 1961. Advocates Act, 1961 was enacted, which provided an autonomous elected body for enrollment of lawyers. And elected Bar Counsels came into existence in various states in the country for the purpose of prescribing course for study of law. It provides for maintain discipline and professional conduct of lawyers. Some power was also given to the High Court to frame rules to regulate the functioning of the lawyers in the High Court or subordinate Court. Under this Act Bar Counsel of India was also created which among others object had the power prepare various
schemes for the benefit of lawyers.
A journey into the history of legal profession clearly shows that the object of this profession was to serve people and to obtain justice for those who were wronged. We have seen earlier that they discharged this function as orators in ancient Greece and Rome, they did so at the request of the wronged person as their friend. No remuneration was charged for this service. These orators they were not trained in law but were experts in the use of rhetoric. Subsequently it was felt that those who plead for the cause of others should have some knowledge of law and ultimately by the medieval period we find emergence serjeants. These serjeants were aristocratic of their times and known as men of law who serve the suffering.
With the emergence of Church, serjeants and priest pleaded the cause of wronged once in civil or canon laws. These serjeants and priests because of their experience gained expertise and we find that these men at times charged fees for pleading the cause. But time and again government of the times Greece, Roman and Medieval enacted laws prohibiting charging of fees or put a ceiling of fee. These regulations were some times violated.
Serjeants were known as men of law and they were known as the persons who serve, we have also come across a period when Attorney was appointed directly by Courts and these Lawyers who were allowed to practice and plead were expected to be men of probity, character and knowledge with desire to serve. The duty of a lawyer is to plead the cause of suffering and for the cause of justice. They were required to take oath which meant that they could reject unjust causes, do not seek unjust delays, do not charge excessive fees.
The profession of law is considered to be honorable and we usually mention that we are member of the honorable profession. The reason being the obligation and desire to serve people in distress, to serve as an officer of the Court, to help the Court in the process of dispensation of justice and not merely to win cases. My father joined the practice of law in 1925 he approached a senior lawyer to give him some tips about the profession and the senior lawyer said “honesty and hard work” are the principle following which success can be achieved in the profession. While talking of the honesty he was of the view that a lawyer should honest to his client, honest to the Court, honest to his adversaries and to himself. While wading through encyclopedia Britannica to know about the history of the noble profession.
I came across a passage which was more or less like the advice given by senior to my father, and I quote “A lawyer like other men has several loyalties to work they include:
- Loyalty of his clients
- Loyalty to the administration of justice
- Loyalty to the community
- Loyalty to this associates in the profession and
- Loyalty to himself :-
(a) to his reasonable economic interest and
(b) to his ethical standards as a man”
These diverse and at times conflicting loyalties must be reconciled with wisdom.
In the race for material propriety we lawyers seem to have given a go bye to the values which made the profession respectable and honorable. With falling standards of morality and lure of material propriety we seem to have converted this profession into a business. The element of service dropped, cause of justice took a back salt and glamour of shining materialism took over. Fingers are raised resulting in loss of respect for the people in the profession. It’s time for we lawyers and men associated with the justice delivery system to do a bit of introspection and resurrect the lost respect and standards of morality in the profession to make us proud of being a member of a honorable profession.
(VIBHAVA BHUSHAN UPADHYA)
Senior Advocate(Former Advocate General)
Mobile No. 9415317291
- History of the legal profession “The Bar Council of India”.
- Judicial Administration in Ancient India (Itihas).
- The legal system in ancient India.
- Lawyer – Wikipedia, the free encyclopedia.