At the dawn of independence, the parliament of independent India was the forge where a document that will guide the young nation was being crafted. It will fall on the keen legal mind of B. R. Ambedkar to formulate a constitution for the newly independent nation. The Indian Bar had a role in the Independence movement that can hardly be overstated – that the tallest leaders of the movement across the political spectrum were lawyers is ample proof. The new nation saw its first leader in Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both exemplary lawyers. Perhaps it is the consequent understanding of law and its relation to society that prompted the founding fathers to devote the energy required to form a Constitution of unprecedented magnitude in both scope and length.

The Constitution of India is the guiding light in all matters executive, legislative and judicial in the country. It is extensive and aims to be sensitive. The Constitution turned the direction of system originally introduced for perpetuation of colonial and imperial interests in India, firmly in the direction of social welfare. The Constitution explicitly and through judicial interpretation seeks to empower the weakest members of the society.

India has an organic law as consequence of common law system. Through judicial pronouncements and legislative action, this has been fine-tuned for Indian conditions. The Indian legal system’s move towards a social justice paradigm, though undertook independently, can be seen to mirror the changes in other territories with common law system.

From an artifice of the colonial masters, the Indian legal system has evolved as an essential ingredient of the world’s largest democracy and a crucial front in the battle to secure constitutional rights for every citizen.

Lawyers in the Indian Freedom Movement With the selfless guidance and statesmanship of the legal profession, the Indian national movement gained participation and its impact reached far beyond immediate political consequences.

The movement that began in 1857 as a sepoy mutiny took the shape of a nationwide struggle for Independence from the British Raj. It incorporated various national and regional campaigns, agitations and efforts of both non-violent and militant philosophies.

Humble beginnings of the Indian National Congress

After the First war of Independence in 1857 and its aftermath, the formation of Indian National Congress in 1885 marked the beginning of a new era in the national movement. The era was of moderates like Dadabhai Naoroji and Sundernath Bannerjee while Madan Mohan Malviya and Motilal Nehru, amongst others, were important moderate leaders who were lawyers by profession. The moderates believed in the system of constitutionalism. They functioned more as a debating society that met annually to express its loyalty to the British Raj and passed numerous resolutions on less controversial issues such as civil rights or opportunities in government which were submitted to the Viceroy’s government and occasionally to the British Parliament. But none of this made any substantive impact.

In 1905, the British announced the partition of Bengal on communal lines. This was opposed by the Congress and the nationalist leaders who adopted policies like Swadeshi wherein they boycotted British goods and promoted Indian goods. This created a faction in the Congress and brought to light the underlying forces of antagonism that was prevalent in the Indian National Congress due to the opposite ideologies of Moderates and emerging group of the extremists.

The extremists – Lal, Bal, Pal

Lawyers like Bal Gangadhar Tilak, who was an extremist, gave a new direction to the INC. Tilak began a new phase of more radical thought within the organization. He put forth new ideas and methods of opposing the imperialist rule and advocated stronger actions like the boycott of foreign goods and the policy of swadeshi (self reliance). He did not believe that the British rule was beneficial and instead felt that their rule was extremely harmful. He introduced the idea of Swaraj (complete independence) way back in 1897 with his famous statement,”Swaraj is my birthright and I shall have it”.

After the partition of Bengal he emerged as an important leader of the extremist faction. In the 1906 session he was able to get his ideas of swaraj, swadeshi and boycott adopted despite the opposition of the moderates. After the split of the Indian National Congress in 1907, the British began cracking down on extremist leaders. Bal Gangadhar Tilak was imprisoned and deported to Mandalay for six years. During this time he wrote two books, Gita Rahasya and the Artic Home in the Vedas. He was released in 1914 and started the home rule league two years later in 1916, which inspired the youth to fight against the foreign occupation of the country. Sir Valentine Chirol rightly described him as one of the most dangerous pioneers of disaffection and truly the father of Indian unrest.

Other eminent lawyers who supported the extremist ideology were C. Rajagopalachari and Lala Lajpat Rai.Lala Lajpat Rai was popularly known as the Punjab Kesari and Sher-e-Punjab and was also the founder of Punjab National Bank and Lakshmi Insurance Company. He formed the extremist faction of the congress along with Tilak and Bipin Chndra Pal, the trio was popularly called “Lal, Bal, Pal”. Later, Lajpat Rai presided over the first session of the All India Trade Union Congress in 1920. He also went to Geneva to attend the eighth International Labour Conference in 1926 as a representative of Indian labour. His journals Bande Mataram and People, contained his inspiring speeches to end oppression by the foreign rulers.

Fighting the British in court

A cycle of violence and repression had ensued in some parts of the country as a result of the partition of Bengal, and Alipore Bomb Case was a famous controversy which arose at that time. Aurobindo Ghosh and 37 other revolutionaries were suspected to have been engaged in illegal activities and sedition and were arrested. However, the eminent lawyer CR Das came to the rescue, who through his brilliant handling of the case got Aurobindo and many others was acquitted. This case brought Das to the forefront professionally and politically. Also called Deshbandhu, CR Das, used his legal knowledge to save many other nationalists and revolutionaries from the clutches of the British. He was the defence counsel in the Dacca Conspiracy Case (1910-11) as well and was famed for his handling of both civil and criminal law.

Meanwhile, in 1909, the British Government announced certain reforms in the structure of Government in India, known as Morley-Minto Reforms. But these reforms came as a disappointment as they did not mark any advance towards the establishment of a representative Government. The provision of special representation of the Muslims was seen as a threat to the Hindu-Muslim unity on which the strength of the National Movement rested. Thus these reforms were vehemently opposed by all the nationalists. The disgust with the reforms announced in 1909 led to the intensification of the struggle for Swaraj. While, on one side, the extremists waged a virtual war against the British, on the other side, the revolutionaries stepped up their violent activities. There was a widespread unrest in the country. To add to the already growing discontent among the people, Rowlatt Act was passed in 1919, which empowered the Government to put people in jail without trial. This caused widespread indignation, led to massive demonstration and hartals.

Lawyer cum nationalist, Saifuddin Kitchlew was one of the leaders who protested against this legislation. Kithclew was also a founding leader of the Naujawan Bharat Sabha (Indian Youth Congress), which rallied hundreds of thousands of students and young Indians to nationalist causes. He was also among the principal founders of Jamia Millia Islamia.

Mahatma Gandhi

This also marked the entrance of Mahatma Gandhi in the mainstream Indian politics. Gandhi, also a lawyer by profession, had just returned from South Africa, where he had carried out a successful Satyagraha against the racial discrimination and for civil liberties of the people. Meanwhile, Gandhi had made his mark in India already by his success in Champaran and Kheda Satyagraha. Gandhi led organized protests and strikes against the landlords who, with the guidance of the British government, signed an agreement granting the poor farmers of the region more compensation and control over farming, and cancellation of revenue hikes and its collection until the famine ended. In Kheda, Sardar Patel, a lawyer by profession, represented the farmers in negotiations with the British, who suspended revenue collection and released all the prisoners.

Patel subsequently organised the peasants of Kheda, Borsad, and Bardoli in Gujarat in non-violent civil disobedience against oppressive policies imposed by the British Raj; in this role, he became one of the most influential leaders in Gujarat. Rajendra Prasad, an eminent lawyer and the first President of India, was also involved with Gandhi in the Champaran movement. Bhulabhai Desai, another lawyer and a politician, represented the farmers of Gujarat in the inquiry by the British Government following the Bardoli Satyagraha in 1928. Bhulabhai formidably represented the farmers’ case, and was important to the eventual success of the struggle. Most lawyers gave their time freely, at the cost of their own legal practice, to the defense of scores of helpless victims of Martial Law implemented by the British, who had been condemned to the gallows or sentenced to long terms of imprisonment.There was a shift in ideology as well, from moderate to a more radical one.

The era of mass movements

In December 1921, Gandhi was invested with executive authority on behalf of the Indian National Congress. Under his leadership, the Congress was reorganized with a new constitution, with the goal of Swaraj. Membership in the party was opened to anyone prepared to pay a token fee. Thus congress, an elitist institution was now open to masses by Gandhi. Gandhi expanded his non-violence platform to include the swadeshi policy — the boycott of foreign-made goods, especially British goods. Linked to this was his advocacy that khadi (homespun cloth) be worn by all Indians instead of British-made textiles. This was a strategy to inculcate discipline and dedication to weed out the unwilling and ambitious, and to include women in the movement at a time when many thought that such activities were not respectable activities for women. In addition to boycotting British products, Gandhi urged the people to boycott British educational institutions and law courts, to resign from government employment, and to forsake British titles and honours.

Non cooperation Movement also saw the involvement of Jawaharlal Nehru who plunged himself into the Indian freedom struggle during this time. A London educated lawyer, Nehru had spent his time touring the nation and spreading Gandhian ideas and making himself acquainted with the problems of the common people. Rajagopalachari, Lala Lajpat Rai, Madan Mohan Malviya, Motilal Nehru, CR Das and Sardar Patel were other lawyers who gave their full contribution to the non cooperation movement. Patel toured the state to recruit more than 300,000 members and raise over Rs. 1.5 million in funds for the non cooperation movement and helped organise bonfires of British goods in Ahmedabad and Gujarat. He also supported Gandhi’s controversial suspension of resistance in wake of the Chauri Chaura incident. He worked extensively in the following years in Gujarat against alcoholism, untouchability and caste discrimination, as well as for the empowerment of women.

With the suspension of the Non-Cooperation Movement, CR Das and Motilal Nehru endeavoured to give a new orientation to Indian politics through his Council-Entry programme, i.e. “Non-Cooperation from within the Councils”. They however met with vehement opposition from Gandhi and the “No-changers”. Thereafter CR Das, Motilal Nehru, the Ali brothers, Ajmal Khan, V. J. Patel, Pratap Guha Roy and others organised the Swarajya Party within the Congress. It was initially known as the Congress-Swaraj-Khilafat Party. Through the efforts of the Swarajists, Maulana Azad was elected President of the Congress Special Session at Delhi, where the programme of Council-Entry was approved. The programme was later confirmed at the Cocanada Session.

The Swarajya Party was the largest Party in the Central Legislative Assembly as well as in some of the Provincial Legislatures. From 1925 onwards it was recognised by the Congress as its political wing.

After the Simon Commission and the violence in its aftermath, an All-Parties Conference was convened by Dr. Ansari, the Congress President, and a Committee, including Tej Bahadur Sapru, an eminent lawyer and headed by Motital Nehru, was appointed to determine the principles of a constitution for free India. The report of the Committee – the Nehru Report as it came to be called – attempted a solution of the communal problem which unfortunately failed to receive the support of a vocal section of Muslim opinion led by the Aga Khan and Jinnah.

The Nehru Report, representing as it did the highest common denominator among a number of heterogeneous Parties was based on the assumption that the new Indian Constitution would be based on Dominion Status. Calcutta Congress (December 1928) over which Motilal presided was the scene of a head-on clash between those who were prepared to accept Dominion Status and those who would have nothing short of complete independence. A split was averted by a via media proposed by Gandhi-ji, according to which if Britain did not concede Dominion Status within a year, the Congress was to demand complete independence and to fight for it, if necessary, by launching civil disobedience. Gandhi had not only moderated the views of younger men like Subhash Chandra Bose and Jawaharlal Nehru, who sought a demand for immediate independence, but also reduced his own call to a one year wait, instead of two. The British did not respond. Mahatma Gandhi led the Civil Disobedience Movement that was launched in the Congress Session of December 1929. The aim of this movement was a complete disobedience of the orders of the British Government. On 31 December 1929, the flag of India was unfurled in Lahore session of the Congress and 26 January 1930 was celebrated as India’s Independence Day by the Indian National Congress.

The President of the historic Lahore session, Jawahar Lal Nehru was prompt to use the platform in order to declare Purna Swaraj or Complete Independence. The monumental Lahore Congress introduced the Civil Disobedience Movement.

This was followed by Gandhiji launching his famous Salt Satyagraha and the Dandi march in Gujarat. During the same time, revolutionaries Bhagat Singh, Sukhdev and Rajguru were arrested on the charges of throwing a bomb in the Central Assembly Hall. Asaf Ali, a freedom fighter and a prominent lawyer, defended the revolutionaries but they were hanged on March 23, 1931.

The government, represented by Lord Edward Irwin, decided to negotiate with Gandhi after the civil disobedience movement. The Gandhi–Irwin Pact was signed in March 1931. The British Government agreed to free all political prisoners, in return for the suspension of the civil disobedience movement.

After the signing of the Gandhi-Irwin Pact, Patel was elected Congress president for its 1931 session in Karachi—here the Congress ratified the pact, committed itself to the defence of fundamental rights and human freedoms, and a vision of a secular nation, minimum wage and the abolition of untouchability and serfdom. Patel used his position as Congress president in organising the return of confiscated lands to farmers in Gujarat.

Round table conferences

As a result of the pact, Gandhi was invited to attend the Round Table Conference in London as the sole representative of the INC. The conference was a disappointment to Gandhi and the nationalists, because it focused on the Indian princes and Indian minorities rather than on a transfer of power.

In 1932, another round table conference was organized and Ambedkar, an eminent lawyer and a Dalit leader was invited to attend the same. Ambedkar had been working for the social upliftment of the Dalits and lower caste people and was opposed to the Hindu idea of casteism and social discrimination. Through his campaigning, the government granted untouchables separate electorates under the new constitution. In protest Gandhi began a fast-unto-death while imprisoned in the Yerwada Central Jail of Pune in 1932 against the separate electorate for untouchables only. Ambedkar agreed under massive coercion from the supporters of Gandhi for an agreement, which saw Gandhi end his fast, while dropping the demand for separate electorates that was promised through the British Communal Award prior to Ambedkar’s meeting with Gandhi. This was the start of a new campaign by Gandhi to improve the lives of the untouchables, whom he named Harijans, the children of God. On 8 May 1933, Gandhi began a 21-day fast of self-purification to help the Harijan movement.

Second World War and the Quit India Movement

World War II broke out in 1939 when Nazi Germany invaded Poland. Gandhi promised to extend his support to the British in the war in return of the freedom, while Subhash Chandra Bose advocated taking advantage of the situation to expel the British Raj by any means necessary. This caused a fiction between the two and led to Bose resigning from INC. Leaders like Gobind Bhallabh Pant, who was also a lawyer by profession, acted as the tiebreaker between them.

Gandhi then declared that India could not be party to a war ostensibly being fought for democratic freedom, while that freedom was denied to India itself. In August 1942, Gandhi launched the ‘Quit India Movement’ and a mass civil disobedience movement. The movement was followed, nonetheless, by large-scale violence directed at railway stations, telegraph offices, government buildings, and other emblems and institutions of colonial rule. There were widespread acts of sabotage, and the government held Gandhi responsible for these acts of violence. All the prominent leaders were arrested, the Congress was banned and the police and army were brought out to suppress the movement. Meanwhile, Netaji Subhash Chandra Bose, who stealthily ran away from the British detention in Calcutta, reached foreign lands like Japan and organized the Indian National Army (INA) to overthrow the British from India but it was only partially successful as Japan lost the World War and Netaji met with an air crash and died.

When three captured Indian National Army (INA) officers, Shahnawaz Khan, Prem Kumar Sahgal and Gurbaksh Singh Dhillon were put on trial for treason, the Congress formed a Defence committee composed of 17 advocates including Bhulabhai Desai. The court-martial hearing began in October 1945 at the Red Fort. Bhulabhai was the leading counsel for the defense. Afsal Ali also came to be the convenor of the INA defence team. Another prominent lawyer defending them was Kailash Nath Katju who also defended the accused in the Meerut Conspiracy Case in Allahabad High Court in 1933. The successful release of all 3 officers was a great achievement on the part of the Indain lawyers. Cabinet Mission and Partition.

At the conclusion of the Second World War, the Labour Party, under Prime Minister Clement Richard Attlee, came to power in Britain. The Labour Party was sympathetic towards India‚Äôs freedom and a Cabinet Mission was sent to India in March 1946, which proposed the formation of an interim Government and convening of a Constituent Assembly comprising members elected by the provincial legislatures and nominees of the Indian states. An interim Government was formed headed by Jawaharlal Nehru who was an obvious choice given that he was the then President of the INC. Jawaharlal Nehru’s rise within the Indian National Congress (INC) was dramatic in the years following the Non-Cooperation movement.

A Constituent Assembly was formed in July 1946, to frame the Constitution of India and Dr. Rajendra Prasad was elected its President. The new Congress-led government invited Ambedkar to serve as the nation’s first law minister, which he accepted. Ambedkar was also appointed as the Chairman of the Constitution Drafting Committee, charged by the Assembly to draft India’s new Constitution. Ambedkar won great praise from his colleagues and contemporary observers for his drafting work.

However, the Muslim League refused to participate in the deliberations of the Constituent Assembly and pressed for the separate state for Pakistan. Lord Mountbatten, the Viceroy of India, presented a plan for the division of India into India and Pakistan, and the Indian leaders had no choice but to accept the division, as the Muslim League was adamant.

As a rule, Gandhi was opposed to the concept of partition as it contradicted his vision of religious unity. He conducted extensive dialogue with Muslim and Hindu community leaders, working to cool passions in northern India, as well as in Bengal. Gandhi’s arrival in Delhi, turned out to an important intervention in ending the rioting, he even visited Muslims areas to restore faith of the Muslim populace. He launched his last fast-unto-death on January 12, 1948, in Delhi asking that all communal violence be ended once and for all, Muslims homes be restored to them and that the payment of 550 million rupees be made to Pakistan.

It was feared that instability and insecurity in Pakistan would increase their anger against India, and violence would spread across the borders. He further feared that Hindus and Muslims would renew their enmity and that this would precipitate open civil war. After emotional debates with his life-long colleagues, Gandhi refused to budge, and the Government rescinded its policy and made the payment to Pakistan. Hindu, Muslim and Sikh community leaders, including the Rashtriya Swayamsevak Sangh and Hindu Mahasabha assured him that they would renounce violence and call for peace. Partition was also resisted by Muslim leaders like Kitchlew who called it a blatant “surrender of nationalism for communalism”.

Vallabhbhai Patel was however one of the first Congress leaders to accept the partition of India as a solution to the rising Muslim separatist movement led by Muhammad Ali Jinnah. Following Gandhi’s and Congress’ approval of the Cabinet plan, Patel represented India on the Partition Council, where he oversaw the division of public assets, and selected the Indian council of ministers with Nehru. Patel later took the lead in organising relief and emergency supplies, establishing refugee camps and visiting the border areas with Pakistani leaders to encourage peace. Patel publicly warned officials against partiality and neglect.

The Constitution of India was finally adopted by the Constituent Assembly on 26th November 1949. On January 26, 1950, the Constitution came into force and Dr. Rajendra Prasad was elected the first President of India. C. Rajagopalachari became the first Indian Governor General after Lord Mount Batten in 1948. Both Prasad and Rajaji were the recipients of Bharat Ratna, the Indian government‚Äôs highest civilian award. C. Rajagopalachari, Jawaharlal Nehru and Sardar Patel also formed the triumvirate which ruled India from 1948 to 1950. Prime Minister Nehru was intensely popular with the masses, but Patel enjoyed the loyalty and faith of rank and file Congressmen, state leaders and India’s civil services. Patel was a senior leader in the Constituent Assembly of India and was responsible in a large measure for shaping India’s constitution. Patel was a key force behind the appointment of Dr. B.R. Ambedkar as the chairman of the drafting committee, and the inclusion of leaders from a diverse political spectrum in the process of writing the constitution.

As the first Home Minister andDeputy Prime Minister of India, during the partition, Patel organised relief for refugees in Punjab and Delhi, and led efforts to restore peace across the nation. Patel took charge of the task to forge a united India from the 565 semi-autonomous princely states and British-era colonial provinces. Using frank diplomacy backed with the option (and the use) of military action, Patel’s leadership enabled the accession of almost every princely state. Hailed as the Iron Man of India, he is also remembered as the “Patron Saint” of India’s civil servants for establishing modern all-India services. Patel was also one of the earliest proponents of property rights and free enterprise in India.

Thus the saga of Indian freedom came to an end as India woke up to freedom in the midnight of 14th August, 1947. The contribution of the lawyers and jurists in this struggle for liberty, equality, justice and truth however remains unparalleled.

The development of the legal profession has received a lot of attention from scholars. This can be seen in Paul Brand’s The Origins of the English Legal Profession (1992), and J.H. Baker’s The Legal Profession and The Common Law – Historical Essays (1986). The eminent jurist Roscoe Pound also wrote The Lawyer from Antiquity to Modern Times (1953).

In Peter Coss (Ed.), Thomas Wright’s Political Songs of England (1996), the following verse occurs:

“Attorneys in country, they get silver for naught; They make men begin what they never had thought; And when they come to the ring, they hop if they can. All they can get that way, they think all is won for them With skill. No man should trust them, so false are they in the bile.”

Law and its practice is a professional responsibility. The regulation of the legal profession is supported by considerable academic research: “Lawyers, economists and other social scientists have found occupational and professional regulation to be a provocative topic of study.” In England, the admission of lawyers has been regulated since the middle of the 13th century. In the late 13th century, three critical regulations were adopted – a. the Statute of Westminster I, chapter 29 (1275); b. The London Ordinance of 1280; and c. the Ordinance of 1292, de Attornatis et Apprentices. During the medieval period, further regulations were enacted, called the Statute, 4 Henry IV, chapter 18 (1402) and the Ordinance, 33 Henry VI, chapter 7 (1455). In addition, judges have always used their inherent power to control the admission of lawyers and check their misconduct.

• Legal profession during Edward I’s period (1272-1307)
• Legal profession after Edward
• cProfessional Conduct and the Law Society
• Legal profession in America
• Legal Profession in India
• Legal profession during Edward I’s period (1272-1307)

The legal profession first seems to have emerged in the reign of Edward I (1272-1307). At that point of time, it included two types of lawyers – the sergeants and attorneys. Sergeants were pleaders who spoke for the clients while attorneys handled procedural matters. Later, attorneys also appeared on behalf of litigants.

Initially, both the pleaders and attorneys assisting the litigants were amateurs. However, over time, these individuals began to appear repeatedly to assist litigants. Thus these individuals developed expertise as a result of their experience and were sought out by litigants and they charged for their services.

In the middle of the 12th century, and particularly through the 13th century, famous legal figures such as Ranulf Glanvill and Ralph de Hengham emerged. Thus, identifiable precursors or predecessors of professional lawyers emerged in the early 13th century.

The appointment of an attorney was called “responsalis”. The writ for an attorney to act in Court, in place of his principal was called “ad lucrandum vel perdendum”. Individual attorneys could appear in Court either as a special attorney, or as a general attorney on behalf of a client for numerous matters over a period of time. However, by the end of the 13th century, restrictions limiting the use of the sergeants were removed and litigants commonly used professional sergeants to plead their cases. Now statutes granted litigants the right to appoint and use attorneys. In 1268, a Charter of the city of London recognized a similar right for its citizens. Thus professional lawyers practicing on a full time basis created a budding English legal profession.

There were major changes in the Court system. New Royal Courts and expert Judges came into being. Thus, a legal environment was created for the existence of a professional lawyer. Since sergeants were the aristocrats of medieval lawyers, appointment as a sergeant was a significant honor. Sergeants were the sole determining authority in case of judicial appointments. Hence, Chaucer called a sergeant a “man of law”. The term itself was derived from a French expression service's, meaning “one who serves”. By the last quarter of the 13th century, the number of sergeants increased. They then became primary pleaders in the Court of Common Pleas and to a lesser extent in the other Royal Courts.

In the 1280s, a group called Apprentices of the Common Bench emerged. Initially, apprentices were individuals studying to become sergeants. They functioned under the supervision of sergeants or senior apprentices. By the end of the 13th century, the apprentices were also representing clients and practicing law. However, they were essentially practicing as attorneys and not pleaders.

In this period ending with the reign of Edward I, three enactments were critical.

The first was the Statute of Westminster I, chapter 29 (1275). This statute prohibited conduct by ‘any sergeant-counter or other’ in the King’s Court that deceived the Court or a party. A sergeant who committed this violation was to be punished with imprisonment for a year and a day, and prohibition on further pleading.

Chapter 29 prohibited misconduct which occurred in a judicial proceeding because of its negative impact on the justice system. Chapter 29 was applied to attorneys and pleaders with the same punishment being awarded to them. Conduct such as false pleading, misfeasance, common law fraud, false recitals in a writ, false statements in a pleading and various forms of defective or unjustified litigation were covered under the punishment.

The sanctions imposed were those of being disbarred, imprisonment for a year and a day, to imprisonment only, a shorter imprisonment, temporary suspensions of different lengths or a fine. The cases involved lawyers committing a wide range of misconduct, such as forgery of writs, altering, damaging or removing official documents. Various other offences were punished. These offences were : a. conflict of interest and other breaches of client loyalty, b. making false statements in Court, to the client, the opponent, and in pleadings and other documents, c. acting as an attorney without proper authority d. failing to act – an early termination of representation e. offending judges by unconvincing arguments, over enthusiasm, or not speaking in good faith.

The London Ordinance of 1280 was a long and a detailed enactment. This enactment regulated both admission to practice and lawyer conduct in the courts of London. The function of a count or was to stand and plead, and count counts and make propositions at the Bar, which prohibited unprofessional pleading. The penalties for violations included short suspensions and fines. The penalty for violating the simultaneous conflict of interest prohibition was suspension for three years.

The Ordinance of 1292 dealt with the admission of attorneys and apprentices to the Common Bench. It directed the Chief Justice and other Justices to regulate the number of attorneys admitted to practice before the Common Bench. They were also directed to establish quotas for each county. According to Holds worth, these Ordinances were issue as there were large complaints against lawyers by members of the general public. It was believed that the number of lawyers should be reduced in order to reduce lawyer misconduct.

Most legal historians have accepted that the Ordinance of 1292 was a major stage in the development of the legal profession in England. In fact, this was the beginning of the long-standing belief that attorneys were officers of the Court. This was attributed because Judges directly admitted attorneys. Integrity and competence were both required for admission. This was because the standard of admission resembled the good moral criterion to modern admission controls. Statutes like the Statute of Conspirators, 1292, and the 1305 Ordinance of Conspirators prohibiting false litigation were also steps in that direction.

Legal profession after Edward I
In the early 17th century, the influence of sergeants as a professional group declined. As a result of this, apprentices became the more important group of pleaders and were the predecessors of today’s barristers. By the middle of the 14th century, they created the Inns of Court. Although an attorney was a lawyer who represented the client in Court on the client’s behalf, he was not allowed to plead. An attorney appeared on behalf of his client. This would be clear from the French verb attorner, which means ‘to assign or depute for a particular purpose’. The attorneys’ primary function was to appear in Court to manage the litigation of the clients.

Separation between attorneys and sergeants model for solicitor-barrister separation The formal division of the English legal profession into solicitors and barristers can be traced back to the separation between the attorneys and the sergeants. Attorneys were the predecessors of the sergeants.

It may be pointed out that canon and ecclesiastical lawyers (dealing with laws with regard to the Church) existed both in England and in Continental Europe. Canon lawyers appeared in the English ecclesiastical Courts. The canon lawyers were also divided like common law lawyers. The pleader was called the ecclesiastical advocates while the attorney was called the ecclesiastical procurator. According to Pollock and Maitland, professional canons for advocates served to set an example for professional common law pleaders. In England, the ancient universities of Oxford and Cambridge imparted legal education based on canon and Roman law. They did not include any instruction in English common law.

The instruction in English common law appeared only in the 18th century with Blackstone’s famous Vinerian lectures. However, in Continental Europe, legal instruction was much older. The oldest were the lectures at the celebrated law school of the University of Bologna in which Roman and civil law was taught.

The education of pleaders through apprentices who were studying to become sergeants was the backbone of legal education. They were taught to regularly attend Court and judicially encouraged to observe the working of Courts as well as sergeants. That is how the Inns of Court were established.

The regulation of the legal profession incorporated principles of discipline, definition of malpractice and other civil liability to injured clients, judicial and institutional controls, and legislative approaches. In England, solely the Judges imposed discipline. Hence, there did not exist any separate disciplinary authorities and regulatory agencies. Moreover, judicial sanctions were commonly imposed. These sanctions were imposed to give effect to statutes and ordinances, as well as inherent judicial power.

Between the end of the reign of Edwards I and the end of 15th century, there was less regulatory activity. The assault on champerty and maintenance continued. Statutes imposing additional prohibitions and remedies were passed in 1327, 1331, 1347, 1377 and 1383. By the end of 14th century, sergeants had a monopoly on pleading in the Common Bench. Thus, the sergeants were considered to be a guild.

With the development of petitions to Parliament in the early 14th century, petitions became a vehicle for complaints about lawyers.

Statute 4 Henry IV, Chapter 18 (1402) aimed at regulating admission of regulating attorneys and misconduct. The statute required that the justices were to examine all attorneys including those already in practice. The justices were to apply their discretion and enroll only those who were ‘good and virtuous and of good fame…’ It was believed that this statute stressed upon the notion that attorneys were officers of the Court and that judicial control of admission was important to limit numbers, ensure competence and eliminate misconduct.

Ordinance 33 Henry VI, Chapter 7 (1455) was aimed at controlling attorney admission in the counties of Norfolk and Suffolk and the city of Norwich. Thus the previous instances of modern regulation of lawyers were evident in the medieval regulation of the profession.

The standards in the legal profession, in a certain sense, originated due to the ecclesiastical Courts (Courts dealing with matters of the Church) – both in England and Europe. Oaths were a part of ancient tradition. The Roman oath required that an advocate should avoid deception and circumlocution. An advocate should speak only that which he believed to be true. He was to avoid the use of injurious language or malicious statements against his adversary. The ecclesiastical courts in England set an oath for advocates, and the Council in St. Paul’s in 1237 issued an oath for ecclesiastical advocates that addressed their litigation conduct. The obligation of a lawyer was to defend his client both according to law and reason. But the decree warned that advocates who “persuade witnesses, or instruct the parties to give false evidence or suppress the truth” would be suspended from office and subjected to additional punishment for repeated violations.

In fact, the oath for advocates in the Court of Arches in London introduced by Archbishop Kilwardy provided that a lawyer would reject unjust causes, not seek unjust delays and not knowingly infringe on ecclesiastical liberties. This included the duty of ‘not to charge excessive fees’. It was in the mid-19th century that the ecclesiastical jurisdiction came to be abolished. Incidentally, the original speeches from the early 15th century encouraged sergeants to serve the poor.

The following exhortation of Lord Whitlock is noteworthy:

“For your duty to particular clients you may consider, that some are rich, yet with such there must be Endeavour to lengthen causes, to continue fees. Some are poor, yet their business must not be neglected if their cause be honest; they are not the worst clients, though they fill not your purses, they will fill the ears of God with prayers for you and he who is the defender of the poor will repay your charity”. Thus, apprentices who had long trained at the Inns of Court became barristers and received ethical instruction as part of their training. The special wisdom of decorum and ethics came from the sergeants. Barristers were governed and disciplined by Courts and the Inns. The barristers, through educational dialogue, passed on ethical traditions and developed new ones. Barristers unquestionably developed new standards. The bias against advertisement started as etiquette handed down in the Inns by barristers. These barristers believed that they were superior to the mere trade work of attorneys and solicitors. Likewise, barristers developed standards demanding that they separate themselves from the lay client and not sue lay clients to collect fees.

An attorney was required to take the following oath:

“You shall do no falsehood nor consent to any to be done in the Office of Pleas of this court wherein you are admitted as an attorney”.

English Courts used their inherent power as well as the 1275 Statute to impose a duty of loyalty and confidentiality on attorneys. In fact the history of the attorney-client privilege began with the reign of Elizabeth I.

In 1605, Parliament enacted the 1605 Act which was “an Act to reform the multitudes and misdemeanours of attorneys and solicitors of law, and to avoid unnecessary suits and charges at law”. In 1654, the Court of Common Pleas directed that a jury of able and credible officers, clerks and attorneys be empanelled every three years to oversee discipline of attorneys. This panel was also to set a table of “due and just fees”. In 1729, Parliament enacted an Act for the better regulation of attorneys and solicitors, providing for strict admission procedures. The 1729 Act required lawyers to swear to a shorter oath. The new oath provided that “That I will truly and honestly demean myself in the practice of an attorney, according to the best of my knowledge and ability”.

In England, the position of Sergeant-at-Law was discontinued and was replaced by the King’s Counsel (or Queen’s Counsel, as the case may be). They were appointed by Royal patent, were admitted only upon taking an oath, and had a monopoly of all practices. They were directly answerable to the King as parts of his judicial system.

The earliest form of an attorney’s oath on record is found in the Red Book of the Exchequer.

“The Oath of Attorneys in the Office of Pleas: You shall doe noe Falsehood nor consent to any to be done in the office of Pleas of this Courte wherein you are admitted an Attorney. And if you shall know of any to be done you shall give Knowledge thereof to the Lord Chief Baron or other his Brethren that it may be reformed you shall Delay noe Man for Lucre Gaine or Malice you shall increase noe Fee but you shall be contended with the old Fee accustomed. And further you shall use your self in the Office of Attorney in the said office of Pleas in this Courte according to your best Learning and Discretion. So helper you God.”

Professional Conduct and the Law Society

The attorneys were expelled from the principal Inns of Court in the 16th century and in 1739 they formed a professional group called “Society of Gentleman-Practicers in the Courts of Law and Equity”. Thus the Law Society was born, though it was not until 1986 that the Law Society formed a committee to collect and draft principles of professional conduct. Now there exists the Guide to Professional Conduct of Solicitors reflecting the ideals of modern solicitors as well. Both branches of the English legal profession had the same core duties over the centuries of litigation: fairness, competence, loyalty, confidentiality, reasonable fees and service to the poor.

Nicholas, in Introduction to Roman Law stated that the Roman jurists were not paid for their work, but were supposed to function due to a keen sense of public service. In Europe, lawyers were under an oath, which was an essence, a condensed code of legal ethics.

In France, lawyers had to take an oath which included a pledge of care, diligence and an agreement to support only just causes. In France, the oaths were taken by ecclesiastical lawyers and the French legal tradition had a lasting influence even outside France in Switzerland and other parts of Europe.

The concept of a lawyer as an officer of the Court is arises from the Roman idea of a lawyer being an advocates, who when called upon by the praetor to assist in the cause of a client, was solemnly reprimanded to “avoid artifice and circumlocution”.

The concept of oath was common to Europe. Fredrick the Second of Germany, prescribed the oath as follows:
“We will that the advocates to be appointed, as well in our court as before the justices and bailiffs of the provinces, before entering upon their offices, shall take their corporal oath on the Gospels, that the parties whose cause they have undertaken they will, with all good faith and truth, without any tergiversation, succour; nor will they allege anything against their sound conscience; nor will they undertake desperate causes; and, should they have been induced, by misrepresentation and the coloring of the party to undertake a cause which, in the progress of the suit, shall appear to them, in fact or law, unjust, they will forthwith abandon it. Liberty is not to be granted to the abandoned party to have recourse to another advocate. They shall also swear that, in the progress of the suit, they will not require an additional fee, nor on the part of the suit enter into any compact; which oath it shall not be sufficient for them to swear to once only, but they shall renew it every year before the officer of justice. And if any advocate shall attempt to contravene the aforesaid form of oath in any cause, great or small, he shall be removed from his office, with the brand of perpetual infamy, and pay three pounds of the purest gold into our treasury.”

The French recognized the role of a lawyer in the Capitularies of Charlemagne as a professional lawyer. Nobody should be admitted to the profession except for men, “mild, pacific, fearing God and loving justice, upon pain of elimination.”

In Denmark and Norway, the Code of Christian V provided as follows:
“Lawyers who are allowed to plead Causes, shall be Men of Probity, Character, and known Repute.

In cities shall be appointed such a number of lawyers as are really requisite.

No one shall be admitted as a Lawyer to act, who does not take an oath before the Mayor and Aldermen, that he will undertake no Cause he knows to be bad, or iniquitous; that he will avoid all Fraud in pleading, bringing Evidence, and the like: That he will abstain from all Cavils, Querks and Chicanery; and never seek by Absence, Delays, or superfluous Exceptions, to procrastinate a Suit: That he will use all possible Brevity in transcribing Processes, Deeds, Sentences, etc. That he will never encourage Discord, or be the least Hindrance to Reconciliation: That he will exact no exorbitant Fees from the Poor, or others: And that he will act honestly, and to the best of his Power, for all his Clients. Of this Oath the Judges shall admonish the Lawyers in dubious Cases, and if they think proper, require a Renewal of it in the Court: And moreover, command them to abstain from all Manner of Scurrility, and Abuse, in their Pleadings, especially where the process does not concern the Fame of the Defendant.

A Lawyer defective in this his Duty shall be discarded, rendered incapable of ever after pleading, and moreover punished in Proportion to his Offense.”

Legal Profession in India

The history of the legal profession in India can be traced back to the establishment of the First British Court in Bombay in 1672 by Governor Aungier. The admission of attorneys was placed in the hands of the Governor-in-Council and not with the Court. Prior to the establishment of the Mayor’s Courts in 1726 in Madras and Calcutta, there were no legal practitioners.

The Mayor’s Courts, established in the three presidency towns, were Crown Courts with right of appeal first to the Governor-in-Council and a right of second appeal to the Privy Council. In 1791, Judges felt the need of experience, and thus the role of an attorney to protect the rights of his client was upheld in each of the Mayor’s Courts. This was done in spite of opposition from Council members or the Governor. A second principle was also established during the period of the Mayor’s Courts. This was the right to dismiss an attorney guilty of misconduct. The first example of dismissal was recorded by the Mayor’s Court at Madras which dismissed attorney Jones.

The Supreme Court of Judicature was established by a Royal Charter in 1774. The Supreme Court was established as there was dissatisfaction with the weaknesses of the Court of the Mayor. Similar Supreme Courts were established in Madras in 1801 and Bombay in 1823. The first barristers appeared in India after the opening of the Supreme Court in Calcutta in 1774. As barristers began to come into the Courts on work as advocates, the attorneys gave up pleading and worked as solicitors. The two grades of legal practice gradually became distinct and separate as they were in England. Madras gained its first barrister in 1778 with Mr. Benjamin Sullivan.

Thus, the establishment of the Supreme Court brought recognition, wealth and prestige to the legal profession. The charters of the Court stipulated that the Chief Justice and three puisne Judges be English barristers of at least 5 years standing.

The charters empowered the Court to approve, admit and enroll advocates and attorneys to plead and act on behalf of suitors. They also gave the Court the authority to remove lawyers from the roll of the Court on reasonable cause and to prohibit practitioners not properly admitted and enrolled from practicing in the Court. The Court maintained the right to admit, discipline and dismiss attorneys and barristers. Attorneys were not admitted without recommendation from a high official in England or a Judge in India. Permission to practice in Court could be refused even to a barrister.

In contrast to the Courts in the presidency towns, the legal profession in the mofussil towns was established, guided and controlled by legislation. In the Diwani Courts, legal practice was neither recognized nor controlled, and practice was carried on by vakils and agents. Vakils had even been appearing in the Courts of the Nawabs and there were no laws concerning their qualification, relationship to the Court, mode of procedure of ethics or practice. There were two kinds of agents – a. untrained relatives or servants of the parties in Court and b. professional pleaders who had training in either Hindu or Muslim law. Bengal Regulation VII of 1793 was enacted as it was felt that in order to administer justice, Courts, must have pleading of causes administered by a distinct profession Only men of character and education, well versed in the Mohamedan or Hindu law and in the Regulations passed by the British Government, would be admitted to plead in the Courts. They should be subjected to rules and restrictions in order to discharge their work diligently and faithfully by upholding the client’s trust.

Establishment of the High Courts

In 1862, the High Courts started by the Crown were established at Calcutta, Bombay and Madras. The High Court Bench was designed to combine Supreme Court and Sudder Court traditions. This was done to unite the legal learning and judicial experience of the English barristers with the intimate experience of civil servants in matters of Indian customs, usages and laws possessed by the civil servants. Each of the High Courts was given the power to make rules for the qualifications of proper persons, advocates, vakils and attorneys at Bar. The admission of vakils to practice before the High Courts ended the monopoly that the barristers had enjoyed in the Supreme Courts. It greatly extended the practice and prestige of the Indian laws by giving them opportunities and privileges equal to those enjoyed for many years by the English lawyers. The learning of the best British traditions of Indian vakils began in a guru-shishya tradition:

“Men like Sir V. Bashyam Ayyangar, Sir T. Muthuswamy Ayyar and Sir S. Subramania Ayyar were quick to learn and absorb the traditions of the English Bar from their English friends and colleagues in the Madras Bar and they in turn as the originators of a long line of disciples in the Bar passed on those traditions to the disciples who continued to do the good work.”

Additional High Courts were established in Allahabad (1886), Patna (1916), and Lahore (1919).

There were six grades of legal practice in India after the founding of the High Courts – a) Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e) Mukhtars, f) Revenue Agents. The Legal Practitioners Act of 1879 in fact brought all the six grades of the profession into one system under the jurisdiction of the High Courts. The Legal Practitioners Act and the Letters Patent of the High Courts formed the chief legislative governance of legal practitioners in the subordinate Courts in the country until the Advocates Act, 1961 was enacted.

In order to be a vakil, the candidate had to study at a college or university, master the use of English and pass a vakil’s examination. By 1940, a vakil was required to be a graduate with an LL.B. from a university in India in addition to three other certified requirements. The certificate should be proof that a. he had passed in the examination b. read in the chamber of a qualified lawyer and was of a good character. In fact, Sir Sunder Lal, Jogendra Nath Chaudhary, Ram Prasad and Moti Lal Nehru were all vakils who were raised to the rank of an Advocate.

Original and appellate jurisdiction of the High Court.

The High Courts of the three presidency towns had an original side. The original side included major civil and criminal matters which had been earlier heard by predecessor Supreme Courts. On the original side in the High Courts, the solicitor and barrister remained distinct i.e. attorney and advocate. On the appellate side every lawyer practiced as his own attorney.

However, in Madras the vakils started practice since 1866. In 1874, the barristers challenged their right to do original side work. However, in 1916, this right was firmly established in favour of the vakils. Similarly, vakils in Bombay and Calcutta could be promoted as advocates and become qualified to work on the original side. By attending the appellate side and original side Courts each for one year, a vakil of 10 years service in the Court was permitted to sit for the advocates’ examination.

Indian Bar Councils Act, 1926.

The Indian Bar Councils Act, 1926 was passed to unify the various grades of legal practice and to provide self-government to the Bars attached to various Courts. The Act required that each High Court must constitute a Bar Council made up of the Advocate General, four men nominated by the High Court of whom two should be Judges and ten elected from among the advocates of the Bar. The duties of the Bar Council were to decide all matters concerning legal education, qualification for enrolment, discipline and control of the profession. It was favorable to the advocates as it gave them authority previously held by the judiciary to regulate the membership and discipline of their profession.

The Advocates Act, 1961 was a step to further this very initiative. As a result of the Advocates Act, admission, practice, ethics, privileges, regulations, discipline and improvement of the profession as well as law reform are now significantly in the hands of the profession itself.