National Law School Journal

Volume 3 Issue 1 Article 4

1-7-1991

Law and Ethics

NR Madhava Menon

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Menon, NR Madhava (1991) "Law and Ethics," National Law School Journal: Vol. 3: Iss. 1, Article 4.
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 (1991) 3 NLSJ 71

Law and Ethics

N.R. MADHA VA MENON

Ethics in Law and Life of Ancient India

There was a time in human evolution when law was part of ethics and religion, of
morals and values, of philosophy and consciousness. Ancient civilizations, particularly
that of India, conceived a legal order based on the compendious Sanskrit expression
'Dharma'. An inspiring and all-embracing concept of Nature evolved principles of Natural
Law which all right-thinking human beings everywhere could advisedly follow for the
welfare of themselves as well as of others. One aspect of Nature, common to all
philosophies and basic to human life, is its view of 'Man' as a creature endowed with the
capacity of reasoning as well as choosing between alternative courses of action, rejecting
those that by some standard he regards as bad and accepting those that by the same
standard he accepts as good. This is often explained as a sense of values or right reason
which is a manifestation of the divine side of human nature. It is this sense of values
again, that commands men to perform their duties and to restrain from doing wrong.
Indeed it is through this standard that Natural Law philosophy enabled societies to'evolve
norms of positive conduct, arguing in the process that such norms which do not conform
to right reason are unjust laws which deserve to be ignored even if they come as
commands of political sovereigns. Thus in ancient philosophies, Law and Politics
depended essentially on ethics for their nourishment and support.
Ethical ideals, according to Hindu religion, can be pursued at least at three different
levels. On the objective level, it leads to the discovery of social laws which sustain order
and progress. On the subjective level, it is a continuing search for God-realisation Qrself-
fulfilment or enjoyment of bliss which is attained at the highest level of cosmic
consciousness. It is a product of direct personal experience, a state of liberation or
'Moksha'. And on the transcendental level, ethics leads to a perception of the moritl
structure of life itself, in the overall scheme of Nature and Creation. Hinduism does not
have a science of morals fashioned after the Greek or the European models. However, it
does provide a scheme of moral life and the means to achieve it. Dharma, in essence,
contains the basis of such a scheme.
The cosmic order which ancient Indian thinkers derived from their concept of Nature
provided the foundation of ethical values, of law and life itself. They called that eternal
order as Rta. In the beginning, Rta related to the physical universe and the natural
phenomena. Then it led to the development of the concept of Natural Law. The societal
application of this Natural Law philosophy is what we understand today as Ethics or the

moral thought
Vedic law. In fact,
that itthe ideabirth
gave of Rta as moral
in later lawtoassumed
periods such aofdominant
the principles Dharma. influ~nce in
All ePics of
Hindu religion do contain infinite examples of the existence of good and evil invariably
leading to the ultimate victory of good over evil. Even the moral character of Gods and
Goddesses is depicted in relation to truth and virtue. This stream of ethical thought
developed through the Vedic period characterised the endeavours of ancient thinkers to
realize Rta in Nature.
The evolution of ethical notions in later periods as depicted in Smrithi (that which is
remembered) literature, particularly the Dharma Sastras teach general principles of Dharma
NLSJ-6
72 National Law School Journal

or moral conduct. Of course, the sanctions supporting virtuous conduct or ethical

behaviour were largely religious and not strictly judicial. Hindu ethics reflected in Hindu
law is thus born out of the Vedic perspective of man in Nature, where harmony is
inherent and righteous conduct is the natural result of human disposition. Unlike legal
theories of the West, Hindu legal theory based on the concept of Dharma envisages ethical
behaviour not out of experience of fear but out of preference and self-respect.
Law, Ethics and Society
The role of ethics and philosophy in explaining social problems and giving directions
for social action is not adequately appreciated today. However, in making and interpreting
law, no society can afford to ignore Ethics. After all, legal theory is only applied ethics.
All issues, be they political or social, in the final analysis are ethical problems inasmuch
as their resolution depends on a choice between alternate values. Whether the question
involves freedom or equality, war or peace, treatment of women, children or Scheduled
Castes and Tribes, it ultimately boils down to a choice of one of several alternative
courses of action based on different set of values.

Modem law in many spheres has attempted to make fine distinctions between private
and public morality, indivi~ual and collective responsibility as well as different standards
of such responsibility. Certain set of values have been legislated as fundamental to the
governance of the society and are even incorporated as part of the basic structure of the
Constitution. Nevertheless, when it comes to individual behaviour, it comes down to the
sense of fairness and righteousness inherent in the level of moral consciousness of the
individual concerned. As such, no civilised society can now be structured without
developing its moral fibre and consciousness either through law, religion, education or
other instruments of social control.

The society evolved in Europe based on Christian ethics and the Natural Law
Philosophy of that period had an ethical theory based on the greatest good of the greatest
number of persons. Good was understood in this context as that which satisfies the
impulses of human nature. The ethics of that period has been predominantly utilitarian
and individualistic. It based all values relative to experience and self-realization. The
nature of polity, government and legal system were justified or opposed in relation to that
standard of ethics. A theory of basic human right and a set of principles founded on
democracy and limited government emerged out of the ethical theory which, in turn, led to
many political revolutions in Europe and elsewhere. The feudal structure of the society,
the absolute hold of organised religion on man, and the practice of slavery got transformed
in the process in many societies. The philosophy of public service and the emergence of
the so-called noble professions have added new dimensions to the ethics of the times.
In jurisprudence, the concepts of law, rights justice, sovereignty etc. were subjected
to fresh analysis and elucidation in the context of changing values and perceptions. The
,growth in education, communication and intellectual contacts at several levels provided
fresh inputs to the interaction between law, ethics and society. The rationalist and secular
movements and the advance of science and technology gave new meaning to concepts of
right and wrong, good and bad. Law distinguished from Justice, Natural Law distinguished
from positive law, and private morality distinguished from pubic morality, induced a type
of dualism in ethical theory which resulted in more problems than it could solve.
Whatever be the final outcome of this trend in different Societies, one thing is certain:
that standards of ethics in individuals or institutions will no more be taken for granted.
Law based on fear and punishment will have to assume a dominant role in regulating
conduct in the future, perhaps in all societies.
 Law and Etbics 73

Justice, Freedom and Responsibility

When one looks at standards of ethics in a given society, one necessarily has to
examine a variety of values reflected in the Constitution, the laws and the system of
administration of justice in that society. Freedom and equality are values cherished in the
legal systems of most societies today. Nevertheless, the scope of human rights standards
. guaranteeing freedom and equality vary widely in different systems. Even when a certain
norm in this regard is enacted in the laws, they often do not obtain in practical terms to
many sections of people. Herein lies the importance of administration of justice.
Normally, hlw is supposed to incorporate Justice. Sometimes law is evaluated in
terms of justice which is taken as a superior value. Conformity to law is supposed to be
the mark of a just society while in others, disobedience to what are called unjust laws is
accepted as justice. In any case, by making the distinction between legal and ethical
justice, the problem is not solved since what is taken as 'superior justice' is open to
different interpretations.
The problem can be illustrated by certain events of Indian legal and political history.
When Gandhiji launched the civil disobedience movement against the British and called
upon Indians to violate the infamous Salt law, he was appealing to a higher justice in the
conscience of the people rather than anything prevailing in the British legal order. The
ideas of democracy and republicanism introduced a number of new principles in legal and
political theory challenging the old ones. And interestingly enough, the new ethical
standards were invoked from the very same ethical foundations, IJamely the sense of
fairness and the level of consciousness of the moral man. Justice is indeed the source and
the result of ethics. Law is just an attempted approximation to the revealed standard of
~ic~ .
It is interesting in this connection, to appreciate the concept of 'Freedom', another
value of legal theory.
Is freedom self-control, absence of controls or limited control? In Hindu philosophy
freedom essentially means the situation in which the baser instincts and impulses of man
are brought under the control of the higher and nobler faculties which he possesses. The
rationale underlying this theory is that freedom is related to consciousness and greater the
level of consciousness the larger the scope of freedom. As one commentator puts it,
"freedom emerges when the senses are made dependent on the mind. Freedom is enhanced
when the mind is yoked with intelligence. Greatest freedom is achieved when intelligence
is informed by the consciousness of the SelL .... The highest level of consciousness
leads to the maximisation of freedom". According to this line ofreasoning "equality" can
prevail in a sociew only if everyone in that society has an equal level of consciousness.
Freedom is understood differently in different societies. Related to equality of status
and of opportunity, freedom has become a concept with varying content in practical
politics. While' the Indian Constitution has accepted equality as a fundamental right
guaranteed to all citizens in Article 14, it ha-s;;n the very next Article, compromised that
value in the name of social justice through adoption of what is called compensatory
discrimination or reservation in favour of certain sections of people. While interpreting
the provisions, the judiciary imported the principle of reasonable classification to justify
what is apparently unethical and unjust application of legal norms. Similarly, in the
interest of what is perceived at a given time as just or fair, ethical standards have been
legislated re-drawing the parameters of certain values which were once considered as
absolute and universal. This is where law becomes decisive in making a society 'moral' or
'right'. Some people therefore describe law as the minimum of morals. Ethics and Law
may have the same object and the same centre (man), but have d~fferent circumferences.
74 National Law School Journal

The area of ethics is indeed wider than that of law.

A related ethical as well as legal concept which needs reference in this context is the
notion of obligation or responsibility inherent in every individual. It is the relation of
human self to events outside. It is a response of "individual will" to actions of others.
What is the proper response in each situation is dictated by will, the sense of justice and
the environment. When such patterns of responses are put together we get a set of
obligations or responsibilities which we consider ethical, moral and just. Obligation in
one creates right in the other. Thus one's rights are founded on the obligations of others.
The balance between the two reflects the character of the ethical and legal order of a given
society.
Responsibility for purposes of legal enforcement is divided into civil and criminal
responsibility. The nature of ethical standards is nowhere better expressed than in its
criminal laws and criminal justice system. The ethics of punishment tells os that no one
ought to be subjected to it unless the person is responsible for the conduct prohibited.
Thus it is for the violation of an obligation. Of course, an ethical question may be raised
as to how the obligation itself is justified. That is another issue which also calls for
examination. The two main theories advanced from time to time with varying degrees of
emphasis are the retributive and the utilitarian. Both justify punishment for crime, though
for different reasons. If punishment leads to deterrence or prevention it is justified under
the utilitarian principle. Of course, the nature and quantum of punishment are still not
free from ethical questions. For example, death penalty is considered wholly unethical in
several legal systems and constitutionally prescribed. Similarly, corporeal punishments
are abandoned in most legal systems. In any case, the utilitrian reasoning is a matter for
empirical verification for its justification and if a given punishment is neither deterrent
nor reformative, it may be discarded as unjustified or unethical. Retribution, on the other
hand is justified as a method of correcting a wrong. On that theory, punishment is a
deserved response of a righteous society to a wrong done against it.
If the administration of punishment is morally justified, it becomes imperative that
only those who are proved responsible for the prohibited conduct alone are subjected to it.
This takes us to a series of difficult ethical questions on how to prove a person
responsible in order to deserve punishment. Criminal procedure and law of evidence have
established standards to prove the innocence or guilt of persons accused of crime.
Presumption of innocence, onus of proof, benefit of doubt to the accused, prohibition
against self-incrimination, rule against double jeopardy, right to legal representation,
system of appeals and revisions etc., are some of the accepted safeguards supposedly
guaranteeing what is called "fair trial" in criminal proceedings. Even the substantive
criminal law has built-in safeguards such as defenses to criminal prosecution, degrees of
culpability based on intention, knowledge, rashness etc., to avoid underserved
punishment. Of course, all legal systems have not uniformly accepted the value of these
safeguards. Nor are the safeguards equally available to all persons involved in the criminal
process. These are continuing challenges to the justice system of societies which claim
superior moral standards. Indeed, criminal justice system is the true mirror of the degree of
civilisation and the standard of ethics of a given society.
Ethical Values of the Indian Constitution
The Indian Constitution is not just a legal document. It is the Bible of an ethical
civilization committed to human values and directed towards the building up of just social
order in whiCh-

Justice: Social Economic and Political;

Liberty of thought, expression, belief, faith and worship;
 Law and Ethics 75

Equality of status and or opportunity;" and

Fraternity assuring the dignity of the individual will be secured to all citizens of the
Republic.
Throughout the Chapters on Fundamental Rights, Fundamental Duties and Directive
Principles of State Policy, the Indian Constitution elucidates the quintessence of a socio-
political order which can well be the pride of any nation. Realising the difficulty of
guaranteeing equality in an unequal society, the Constitution authorises the State to adopt
policies which may dismantle age-old institutions of inequality and promote equality
wherever necessary through reverse discrimination strategies. Legal protections to
guarantee freedom and personal liberty are mounted as fundamental rights with a view to
avoid arbitrariness on the part of State authorities. Traffic in human beings and other
forms of forced labour are prohibited. Untouchability is abolished and its practice in any
form is made punishable. Employment of children in hazardous occupations is declared
unconstitutional. Freedom to practise the religion of one's choice and uninterrupted
maintenance of the cultural and educational rights of minorities are provided for.
A set of principles of State policy, declared fundamental for the governance of the
country is also included as part of the Basic Law of the land. Among these principles are
the duties of the State to secure equal justice and free legal aid, right to public assistance
in cases of underserved want, provision for just and humane conditions of work, welfare
of disadvantaged sections of the people, safeguarding of environment, forests and wild life
and finally the promotion of international peace and security. The State is obliged to
secure a social order in which justice, social, economic and political shall inform all the
institutions of national life. The ethics of a civilized society are beautifully articulated by
the Constitution makers and put as part of the agenda for State action.
The Constitution, by way of an afterthought, also adopted a set of Fundamental
Duties on the part of citizens with a view to complete the vision of a just social order. It
is the duty of every citizen to promote harmony and the spirit of common brotherhood
amongst all the people and to renounce practices derogatory to the dignity of women. To
have compassion for all living creatures and to protect the natural environment including
forests, lakes, rivers and wild life is another fundamental duty of citizens under the Indian
Constitution. By all standards, the basic Charter of Indian Society is a compendium of
ethical principles designed for individual and State action in private and public life.
Actions of the executive government and laws passed by the legislatures have to conform
to the Constitutional standards outlined above and, if they do not, courts have been given
the power to strike down such laws and orders as null and void. The Constitutional
culture thus projects a value system which embodies the best of human enqeavour and
accomplishment.
The Legal Profession and Ethical Standards in Administration of Justice
It is generally said that 'law is what law does'. And what law does, is to a large extent
structured and influenced by the activities of the legal profession including the Judges. In
any discussion on law and ethics therefore, one has to examine closely the "standard of
ethics of the legal profession and role of lawyers in administration of Justice.
What makes Law, a Profession? Profession involves service of a high order which
demands skill, specialisation and ethical conduct. In return, communities have authorised
members of the profession to have monopoly of the service rendered, vested public trust
on them, and endowed high status in them. The professions' ethical code is part formal
and written. The informal is the unwritten code, which nonetheless carries the weight of
formal prescriptions. It is characteristic of professional codes to be altruistic in sentiment
and service-oriented in content and concerns. The ethical code of lawyers is full of such
76 National Law School Journal

commitments and obligations. It is instructive to make an assessment of the formal code

of ethics the Indian legal profession has adopted to realize the high moral principles laid
out by the Indian Constitution.
The Bar Council of India under powers vested in it under section 49(1)(c) of the
Advocates Act, formulated certain rules relating to standards of professional conduct and
etiquette. They relate to the duties of the advocate which he owes to the public, to the
court, to his client, to his opposite Counsel and to colleagues in the profession. As in
other professions, an Advocate who is established in the profession is expected to impart
training to juniors without accepting fees therefor. Every lawyer, according to the code of
ethics has also a duty to render free legal aid to those indigent persons in need of legal
services. An advocate is also prohibited from taking other employment or engaging
himself in other trade or business while practising law.
The Bar Councils are elected bodies and the code of ethics constitutes what they
consider as essential to preserve the dignity and status and to fulfil the role as officers of
court of the profession. The Advocates Act provides power to the Bar Councils to inquire
into cases of misconduct of its members through Disciplinary Committees constituted by
them. Section 42 of the Advocates Act provides that the disciplinary committee of a Bar
Council shall have the same powers as are vested in a Civil Court under the Code of
Civil Procedure. The disciplinary committee at the end of hearing may dismiss a
complaint, reprimand the advocate, suspend the advocate from practising law for a
prescribed period, withdraw his license altogether or otherwise deal with him. Costs can
also be awarded in such proceedings. An appeal lies from the disciplinary committee of
the State Bar Council to the Bar Council of India, and, in selected cases, to the Supreme
Court of India.
Interestingly, the nature of the rules and the way they are administered seem to
suggest that the profession is concerned mainly to preserve its monopoly over legal
services with little concern for the consumers of justice. The Indian legal profession is
organized like a pyramid with concentration of work in few hands at the top who charge
unlimited fees and show little respect to the rules concerning free training of juniors and
free legal aid to the poor. According to the Report of the Gujarat Legal Aid Committee
(1971), the so-called noble, learned profession of law allows "the market forces of demand
and supply to operate with naked fury" bringing discredit to the system of administration
of justice and denial of equal justice to majority of litigants.
A number of astonishingly unethical practices have been reported even at the highest
levels of legal profession which, in business, can easily come within the d~finition of
"unfair trade practices". These include what is called 'bench fixing' under which through a
strange abuse of norms of ethics, 'inconvenient' judges are avoided or 'convenient' judges
are adopted by the lawyers to hear one's petition. In some places It is reported that strong-
arm methods including anonymous petitions against presiding officers are adopted to force
their transfer from one station to another when they do not oblige an influential member
of the Bar. The role of advocates in corrupting the courtroom bureaucracy has assumed
menacing proportions in some places particularly at lower levels of the judiciary. Again,
advocates have to share a large part of the responsibility for unpardonable delay in the
adjudicative process. Adjoumaments are obtained on flimsy grounds and judges who deny
such a privilege to accommodate advocates are put to serious hardships, sometimes by the
majority of members of the local Bar.
Another unethical practice that is becoming an increasingly widespread menace
threatening the foundations of fair and objective justice is the relations of judges
practising in the court in which the concerned judge is a member. The relevant rule in the
Code of Ethics is being interpreted narrowly to men the 'Bench' in place of the 'Court' by
 Law and Ethics 77

which all types of relatives of judges are allowed to build up roaring practice mainly on
the basis of contact and relatiol'lship, vitiating the purity of administration of justice.
Time and again, there was public outcry against the escalating cost of justice through
the court system. Despite this, many leaders of the profession have become notorious for
charging unconscionable fees wholly disproportionate to the services rendered. Rules of
court, prescribing the schedule of professional fees, are openly flouted with total impunity
and a situation has reached wherein quality legal services are now beyond the reach of the
majority of litigants in the country. It is indeed paradoxical that the legal system requires
the services of professional lawyers for its effective use and at the same time keeps such
services beyond the reach of the average man. Although normatively, the law is the same
for all citizens, functionally it varies according to the socio-economic status of the
persons involved. It is not that the person who needs the services most get them, but that
the person who can buy the best available legal talents get maximum services. People
living in the far-flung countryside and in locations geographically handicapped including
tribal areas have a whole range of unmet legal needs for which the existing professional
set-up has little relevance. The monopoly on legal practice granted to the profession has
accentuated the problem and marginalised a large section of Indian people in terms of
availability of legal services and access to justice. There is no scheme of legal aid
systematically administered by the private Bar and, individual practitioners, if they render
legal aid, it is at the instance of the court or as a matter of charity. Even the Rules of
professional Ethics adopted by the Bar Council of India require the lawyers to give legal
aid only subject to their economic circumstances.
The State-sponsored legal aid schemes have not yet made any substantial
improvement in the condition of the poor in need of legal services. There are complaints
that the schemes are not picking up at least partly because of the unhelpful attitude of
some sections of the Bar. People have therefore enthusiastically welcomed the advent of
"Lok Adalats" to settle disputes out of court even without the involvement of legal
practitioners. Sensing the mood of the people and realising the inevitable drawbacks of
the adjudicatory process in the formal court system, legislatures have increasingly tended
to exclude appearance of lawyers by way of right. Today, there is a conscious and
deliberate search for alternate dispute resolution mechanisms wherein the procedure can be
less formal and the lawyer involvement can be minimal or avoidable. Without passin&-
any judgement on this trend in the legislative and adjudicative processes, one can argue
that professional re-organization could go a long way in better delivery of legal services in
and outside the court system.
The case for restructuring the profession is canvassed by a section of the
professionals themselves. It is common knowledge that work is unduly concentrated in a
few hands at the top of the professional pyramid keeping a large bottom layer under-
employed and under-paid. Concentration of work leads to demands for adjouurnments and
delays in the judicial process. It further tends to the uneven distribution of professional
competence resulting in the poor people receiving the least competent personnel in the
organization. The mounting fees charged by the lawyers on the top is also a direct result
of undue concentration of work maintained by a vicious system of cornering "Legal
business" through methods legitimate and otherwise.
If equal justice under law is to become a more realistic goal there is need for a
rational re-organization of the private Bar. In England and the United States the problem
appears to have been tackled to a large extent by a massive programme of State-funded
legal aid schemes. In socialist countries it is tackled by greater social control of the
profession and by statutory creation of lawyers' collectives for defined regions with pre-
determined service charges. In some other places legal insurance is being attempted.
78 National Law School Journal

Specialisation, division of work among different classes of practitioners, assignment of

juniors with senior lawyers, and professional bodies themselves regulating work and fees
distribution are steps in the same direction. Which of these strategies or combination of
them will serve the conditions in India, is a matter which require serious and urgent
consideration of the Bar Councils and the Government. Sinece access to legal services is a
constitutionl requirement and a professional necessity, it is advisable to evolve strategies
which will help re-organize the delivery system in a manner conducive to professional
values and to consumer needs. It. is clear that the present pattern of professional
organization cannot continue for long without damaging the efficacy of the justi~ systeni
itself.
Professional Competence and Equal Justice
Admittedly, there is wide variation in the quality of services offered by members of
the profession. To a certain extent, it is inevitably so. However, the problem is the
increasing erosion of even a minimum level of professional competence expected of
members of the Bar. Whether it is because of the uncontrolled expansion in admission to
the Bar or because of the extremely deplorable state of legal education in many
Universities in the country, the fact remains that the average citizen is left with ill-
equipped and poorly trained legal practitioners who enjoy 'a monopoly without
commensurate social accountability. Unfortunately, neither the disciplinary jurisdiction of
the Bar Councils nor the negligence liability in Common Law are effective means to
enforce accountability or extract competent services from individual practitioners. The
ignorance of the common man and the corruption in the system have put a discount on
dishonesty and indifferent delivery of services. The effect is unmistakably felt on the
justice system and its credibility amongst the people.
Dilution of professional standards and consequent weakening of the administration of
justice have reached disturbing proportions at some levels and in some regions. If the
ignorant, unsuspecting public are not protesting, it is only because of the overall
performance of the system and a sense of helplessness in doing anything about it. As
such, the profession must view the malaise seriously and take all possible steps to arrest
the decline and redeem the promise for which society has reposed trust and gave monopoly
of services on it On different occasions, knowledgeable people and professional bodies
have recommended a variety of steps in this direction but the implementation has been far
from satisfactory.
Admittedly, there is inadequate enforcement of professional discipline and standards of
ethical conduct. Very few people outside the profession are aware of the existing system
of punishing erring advocates. Peer group justice has not been a sucCessif one were to go
by the statistics of violations and the extent of indiscipline often noticed among the
advocates. Punishments administered are said to be too mild which in many cases had to
be corrected by the Supreme Court. The cases are not publicised and the public are in the
dark about the misdeeds of many lawyers on whom they depend for their life, liberty and
property. A number of unholy practices many of which are not even recognised as
unethical conduct continue unabated at different levels of the Bar. Besides, strike and
boycott of courts at State and loeallevels have become a regular feature with advocates
who are getting unionised on political and regional grounds. The fond hope of the All
India Bar Committee (1954) for an integrated bar with high professional standards is
steadily being eroded by the actions and omissions of a certain section of advocates
themselves.
The situation calls for a revision of the rules of professional conduct and etiquette
keeping in mind not only the interest of members of the profession but also those of the
litigating public. There is need for greater openness and wider public participation in the
 Law and Ethics 79

discipline enforcement mechanism of the Bar Councils. The severity of punishments need
an upward revision in case of repeated violations or gross misconduct particularly when
the lawyer involved is a senior member of the Bar. The electoral process by which Bar
Council members are elected also need changes with a view to let public-spirited,
professon-minded lawyers assume charge of the decision-making bodies of the organized
Bar. The superviosry role of the High Courts on disciplinary matters may have to be
revived at least in a limited manner to enforce accountability from indisciplined members
of the Bar.

An efficient Bar alone can strengthen administration of justice. Mediocrity,

indifference and incompetence on the part of me.mbers of the profession can seriously
vitiate the course of justice and undermine public confidence in the system. As such,
standards at the Bar can no more be left to the exclusive jurisdiction of few elected
members of the Bar. A more effective system of monitoring, development and
accountability will have to be evolved, if necessary, by a thorough revision of the
Advocates Act and the rules thereunder. In the context of judicial reforms, a thorough
study of the organization of professional services, the needs of the Bar at the turn of the
century and its role in a people-oriented scheme of administration of justice is urgently
required.
Lawyers Strike
An issue which has assumed importance nOLonly on ethical grounds but also on the
basis of contractual obligations in a civilized society, is the frequent paralyzing of judicial
administration by lawyers resorting to strike and boycott of courts. Mandai Commission
implementation, arrest of or assault on a lawyer, implementation of Family Courts Act,
increase in the pecuniary jurisdiction of civil courts, division of courts for easier access to
justice, transfer of judges are some of the issues on which lawyers have gone on strike
from one day to three months or more. By resorting to strike for whatever reasons, the
lawyers, in faci, cause immense problems for the general public besides positive harm to
the interests of their clients. It is contended that by frequent resort to prolonged strikes and
boycotts, the advocates are holding the society to ransom contrary to all principles of
professional ethics.
Justice Wadhwa of the Delhi High Court in a report (1990) on police-lawyer conflict
criticised the lawyers' strike stating that "militancy has no place in the legal profession
committed to rule of law and bar association is not a trade union and strike ,by lawyers
amounts to denial of justice to the litigants". A former Chief Justice of India suggested
that lawyers are committing professional suicide by resorting to strikes and it does
amount to professional misconduct. Unfortunately, the Bar Councils which lay down
professional discipline under the Advocates Act have a different opinion on the issue and
sometimes ,themselves call upon advocates to go on strike. Strikes aggravate the problem
of delays and contribute to the further weakening of an otherwise tottering judicial
system.
Judicial Ethics and Accountability
No discussion on law and ethics can be complete without reference to the ethics of
judges and their accountability to judicial functions. In the recent past there have been
reports of alarming increase in judicial imporprieties and corruption even in the highest
judiciary of the country. According to some, the questiiln of judicial accountability causes
serious concern on account of the irresponsible conduct of certain judges under the cover
of judicial independence provided by the Constitution and the laws. In the higher judiciary
there is no way of proceeding against a corrupt judge excepting through a long drawn out
process of impeachment in Parliament. Recent incidents involving sitting judges of the

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80 National Law School Journal

Supreme Court and few High Courts have shaken the faith of the public in the integrity
and fairness of our judicial system and unless something drastic is done without delay, the
system may receive such a shock from which it may become difficult to recover.
Law, Lawyers and Public Interest
Legal profession is by and large a private sector activity. As its role in society is
heavily oriented towards the cause of public interest, the people have reposed trust on the
members of the profession to govern themselves and conferred monopoly protection on
the services offered. With the decline in the quality of services, the increase in the cost and
delay in litigation and the non-accountability of some sections of lawyers, a situation has
reached for a thorough re-appraisal of the role of the profession in society. A people
oriented profession rooted in public service has to reflect publi,c accountability and
concern for the common man in need of legal services. The legal profession took a
leading role in the Freedom Movement and took public responsibilities in a spirit of
service to the nation and its people. Today it has become a market place where the highest
bidder got l;he services and the common man is totally neglected. For nearly a generation
or two the Indian Bar, excepting some honourable exceptions failed to respond to issues
of access to justice to the disadvantaged, equal justice to all, law reform in public interest,
communal harmony and peace within the country and outside. On some occasions, there
is evidence to argue that members of the profession have gone against public interest
prompted by pure selfish interests. Does the same rule of ethics which they adopt in
litigation between private parties apply with same emphasis to issu~s involving public
interest? Are there not issues in a developing and unequal society like India which warrant
public interest advocacy where the adversary model of adjudication has very little or no
relevance? Is there not a need for a public sector in the legal profession with a new set of
ethics articulated largely on meeting the unment legal needs of the rural and urban poor?
Can any professional, even under the adversary system, deny the need for a certain level of
personal responsibility not necessarily subsumed in what is conceived as professional
responsibility?
It was Gandhi who was himself a lawyer who articulated a different role for lawyers
both in the profession and in society. Uniting parties through conciliatory methods,
reaching compromises without compromising trust and conscience, winning clients' cases
only if it so deserved according to one's own conscience and keeping the purity of
administration of justice in all that one does was the message of the Father of the Nation
to his professional colleagues. Gandhiji would not subscribe to the theory that it is the
duty of an advocate to defend a client whom he knows to be guilty. This is the Indian
understanding of professional ethics which unfortunately has been ignored with the decline
of the indigenous legal system. An agonising re-appraisal of professional obligations is
high on the agenda of the nation. Profession for the people and not vice-versa has to
inform the organization and functioning of the profession at every level.
The relationship between Law and Ethics ultimately comes down to the norms and
standards of conduct practised by lawyers, judges and other functionaries of the legal
system. While a substantial majority of law persons are still keeping up the ethical
demands of the profession, an increasing number of professional deviants are creating
serious problems which leads society to question the very ability of the profession to
correct the distortions and to serve the public interest. It is time that all right thinking
members in society within the profession and outside take an active interest in the
organization and functioning of the legal system lest posterity should accuse the present
generation for being silent conspirators to the murder of democracy, rule of law and
Constitutional government.