Competency of Lawyers

An Incompetent Lawyer Can Delay A Trial For Months Or Years.
A
Competent Lawyer Can Delay One Even Longer.
ANIRBAN SAIKIA*
This quote by Evelle J. Younger, former Attorney General for the State of California, refers to
the influence that lawyers and advocates have over the justice delivery system of a State. While
it is a generally accepted notion that delayed justice is no justice, the existing reality within the
Indian judicial system if far from ideal. A study conducted in 2013 showed that the number of
pending cases in various courts and tribunals in India were well over 3 crores. 1This pendency of
cases was estimated to rise to 15 crores over the next three decades. 2 Moreover, they same study
also shows that 30% of these cases have been pending in courts for 5 years or more. 3 While the
primary reason for such delay in the dispensation of justice has been attributed to the court
system, the delay caused by unethical and unprofessional practices by lawyers towards the
clients is considered a major reason as well. Further, a response by the Bar Council of India to a
Right to Information application filed in 2011 showed that there were 1.3 million lawyers in
India.4 This information not only puts India at par with the United States of America, in terms of
lawyers per non-lawyers ratio in the country. However, in contrast to the Indian justice system,
the US justice dispensation system has seen a decrease in the number of pending cases by almost
4.4% in the financial year 2012 – 2013. 5 This leads to the conclusion that in regards the
advocates, the pendency of cases may be attributed to two primary causes – (i) the delay is a
result of the incompetency of the advocates; (ii) the delay is caused by deliberate mala fide
intentions of the advocates.
At this juncture, it is important to appreciate the fact that the Indian legal regime provides for the
right to a speedy trial. The right to a speedy trial has been read into the fundamental to life
guaranteed by Article 21 of the Constitution of India. 6 This was upheld by Justice Krishna Iyer in
Babu Singh v. State of U.P. 7 and later reaffirmed in Sheela Barse v. Union of India 8. Moreover,
*
5th year student at the West Bengal National University of Juridical Sciences; ID No: 210060.
1
Times of India, India to have 15 crore pending cases by 2040, report says , January 17, 2013, available at:
http://timesofindia.indiatimes.com/india/India-to-have-15-crore-pending-cases-by-2040-report-says/articleshow/
18054608.cms (Last visited on August 28, 2014).
2
Ibid.
3
Id.
4
Live Mint, Demystifying India’s Legal Market, November 25, 2011, available at:
http://www.livemint.com/Opinion/7wgxY0tcuLyw2yG2G0HcvL/Demystifying-India8217s-legal-market.html (Last
visited on August 28, 2014).
5
United States Courts, Judicial Caseload Indicators, available at:
http://www.uscourts.gov/Statistics/JudicialBusiness/2013/judicial-caseload-indicators.aspx (Last visited August 28,
2014).
6
Constitution of India, 1950; Article 21.
7
Babu Singh v. State of U.P., 1978 AIR 527.
8
Sheela Barse v. Union of India, JT 1986 136.
in the case of Hussainara Khatoon v. State of Bihar9, the court opined that, “No procedure which
does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it
would fall foul of Article 21 of the Constitution. There can, therefore, be no doubt that speedy
trial and by speedy trial we mean reasonably expeditious trial, is an integral and essential part
of the fundamental right to life and liberty enshrined in Article 21.” 10 The importance of the
Right to a speedy trial is furthered by the recognition provided to it by Article 14 of the
International Convention on Civil and Political Rights, 1996.
In the backdrop of this right, an examination of the rules governing the conduct of the advocates
seems pertinent. The emphasis on professional ethics towards the speedy disposal of a client’s
case is envisaged by the Standards of Professional Conduct and Etiquette under Part VI of the
Rules provided by the Bar Council of India. 11 The ethical standards provide that an advocate
must “uphold the interests of his/her client by all fair and honourable means”. 12 The Standards
further states that complete disclosure must be made to the client in order to enable the client in
making informed judgements.13 Highlighting the importance of the role of lawyers and advocates
in the judicial, the Supreme Court in O.P. Sharma v. High Court of Punjab & Haryana14, opined
that the duty of an advocate in the dispensation of justice was akin to that of a judge. 15 The Court
also stated that the responsibility owed by the advocate extended not merely to his clients but to
the society at large and therefore, an advocate was duty bound to ensure that the justice system
functioned at its fullest potential.16
Justice Chauhan in a judgement delivered in 2013 was unimpressed with the culture of “name
lending” amongst the Advocates on Record(AOR) at the Supreme Court. 17 In that case it was
found that the Advocate on Record for that particular case had in the years 2010, 2011 and 2012
had filed over four thousand cases but had appeared for only twenty percent of those cases, i.e., a
meager 922 cases.18 Critics were of the opinion that such prevalent customs within the AORs
was because more filing of cases meant more commercial gain, regardless of whether they
appeared in front of the court for hearing or not. 19 While the AORs are responsible for all aspects
of a case, it is understood that most of the cases filed are benami and the AORs only lend their
signature to a case for commercial profit. 20 This was however, a culture that was prevalent
9
Hussainara Khatoon v. State of Bihar, 1979 AIR 1369.
10
Ibid.
11
Bar Council of India Rules, Standards of Professional Conduct and Etiquette, Section II(15).
12
Ibid.
13
Id.
14
O.P. Sharma v. High Court of Punjab & Haryana, Criminal Appeal Nos. 1108-1115 OF 2004.
15
Ibid.
16
Id.
17
India Today, Lowering the Bar off the record, August 26, 2013, available at:
http://indiatoday.intoday.in/story/lowering-the-bar-marc-galanter-supreme-court-judiciary-lawyers/1/301343.html
(Last visited on August 28, 2014).
18
Ibid.
19
Id.
20
Id.
amongst the top rung of lawyers with established competence. Such practices amongst the
lawyers suggest that although competency is a factor, it is primarily the commercial incentive
that drives lawyers to delay trials. These practices however, have been time and again been
deemed unprofessional and frowned upon by the courts.

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An Incompetent Lawyer Can Delay A Trial For Months Or Years.

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