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Introduction: The Study of the Indian Legal Profession

Published online by Cambridge University Press:  01 July 2024

Marc Galanter
Marc Galanter*
Affiliation:
University of Chicago
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The last two centuries have witnessed a worldwide movement toward centralized, bureaucratic, professionally-staffed legal systems, sponsored by and closely allied with nation-states. One concomitant of these developments has been the emergence (or growth) of bodies of independent professionals whose members mediate between these systems and the populations they regulate. Thus the “expropriation” of the making and application of law into a purely governmental function has been accompanied by the growth of a corresponding “private sector”—the lawyers. The intimate involvement of lawyers in the emergence of modern nations has been recognized, but there has been little systematic comparative study of them. This issue contains a series of studies of one of the largest of these professional groups—Indian lawyers. These studies were prepared for a Conference on the Comparative Study of the Legal Profession with Special Reference to India, sponsored by the Committee on Southern Asia Studies of the University of Chicago, held at the Moraine-on-the-Lake Hotel in Highland Park, Illinois from August 10-12, 1967.

Type
Research Article
Information
Law & Society Review , Volume 3 , Issue 2-3: Special Issue Devoted to Lawyers in Developing Societies, with Particular Reference to India , February 1969 , pp. 201 - 217
Copyright
Copyright © 1969 by the Law and Society Association.

References

1. The Editors would like to express appreciation to the Committee on Southern Asian Studies of the University of Chicago for its support of the Conference, and along with the Council for Intersocietal Studies of Northwestern University, for providing facilities for the preparation of this collection; to Mrs. Sara Lindholm for her extraordinarily able work of making the Conference arrangements; to Dr. Kali Bahl of the University of Chicago who helped on the glossary (that falls somewhat short of Indological standards) ; and to Miss Maureen Patterson, South Asian Bibliographer of the University of Chicago Library for her assistance with sources.

2. We did have available Ralph Briabanti's excellent survey of the legal profession in Pakistan Research on the Bureaucracy of Pakistan (1966).

3. Space did not permit inclusion in this collection of the non-Indian papers, abstracts of which appear at pp. 407-413. Professor Henderson's is part of a chapter in his forthcoming book on Foreign Enterprise in Japan (to be published by the University of North Carolina Press). Professor Ziadeh's paper in a slightly modified form will be published as the concluding chapter in a forthcoming book entitled Lawyers, the Rule of Law, and Liberation in Egypt (to be published by the Hoover Institute of Stanford University). NOTE: Except where otherwise noted, lawyer figures are taken from American Bar Foundation, International Directory of Bar Associations (1964). Where the directory gave an estimated range, the middle figure was used. Population figures are from the Statistical Abstract of the United States for 1967, at 898-900 (1966). Extreme caution is appropriate in using this table. While it reflects gross differences in lawyer densities, the data on which it is based lend no assurance of comparability in specifying the boundaries of the profession. In some cases figures include nonpracticing law graduates, judges, prosecutors, retired persons; in others they do not. A lag in population figures may add distortion—as may failure to take into account the differing age profile of the populations. It should also be recalled that some of the most radical differences are probably not so much reflections of the legal system as of an educational system, e.g., that contains no separate training in business or the social sciences.

4. Lawyers have continued to comprise over a quarter of the Lok Sabha (see Table 3 below). This is far short of the 60% lawyer membership of the United States Congress, but it is strikingly higher than, for example, lawyer membership of the House of Commons (solicitors and barristers: 19% in 1955), the French National Assembly (avocats, avoues, notaires: 14% in 1951) or the West German Bundestag (jurists, lawyers, notaries and other legal officials: 11% in 1957). Figures taken from John J. McCloy, The ExtraCurricular Lawyer (a lecture given at Washington and Lee University, 1958).

5. Physical attachment to a particular court goes back to the earliest days of the Indian legal profession. In the first regulation of vakils in Bengal in 1793, vakils were admitted to practice before only a single court and “Daily and Regular attendance at that court was compulsory.” P. N. K. Sahay, A Short History of the Indian Bar 24 (1931). In 1814 this rule of attendance was loosened to the extent that it was no longer necessary to obtain the leave of the court in case of absence, but merely to give written notice to the court. In 1853 the requirement of daily attendance was dropped. Id. at 33, 39. Sahay points out that this requirement reflected that the early regulation was intended to establish the vakil not as an independent profession but as “an office under the Government.” Id. at 26.

6. Report on Indian Constitutional Reforms 55 (1918).

7. W. H. Morris-Jones, Parliament in India 120 (1957).

8. L. B. Wilson, cited in id. at 128.

9. Morris-Jones, supra note 7, at 120.

10. John Pollack, The New Caste: Political Leaders in Maharashtra 67 (Mimeo, 1966).

11. Madras Legislative Council Who Is Who (1957, 1962, 1966).

12. Cf. the observations of William McCormack on the lawyers' influence in the development of a unified Lingayat culture. Lingayats as a Sect (pt. 1) 93 J. The Royal Anthropological Institute 67 (1963).

13. For example, consider the contrast between India's two largest “minorities” in the matter of legislative representation. Theodore Wright found that of 332 Muslim legislators who served between 1947 and 1962, 32% were Lawyers. Muslim Legislators in India: Profile of a Minority Elite, 23 J. Asian Studies 262 (1964). It seems that a much smaller fraction of Scheduled Caste legislators are lawyers. In the Third Lok Sabha, among the 74 occupants of seats reserved for Scheduled Castes on whom information is available, there were only nine lawyers (12%). Lok Sabha Who's Who 1962.

14. G. K. Ojha in Humayan Kabir, et al., The Teaching of Social Sciences in India (1947-67), at 408 (1968).

15. In Pakistan, with similar educational and legal institutions, law degrees represented 17% of total degrees awarded from 1954-61. Ralph Braibanti, Research on the Bureaucracy of Pakistan 249 (1966).

16. Report of the All-India Bar Committee 72-73 (1953); I Law Commission of India, Fourteenth Report (Reform of Judicial Administration) 584-85 (1958). Both figures are slightly inflated by the inclusion of Supreme Court practitioners, most of whom are enrolled elsewhere as well.

17. Statistical Abstract of the Indian Union 1963 & 1964, at 622.

18. A survey of University of Delhi graduates conducted in 1958-59 indicates that about half of the 1950 and 1954 LL.B.'s who were then employed were employed as clerks. V. K. R. V. Rao, University Education and Employment: A Case Study of Delhi Graduates 13, 43 (1961).

19. See Marc Galanter, The Displacement of Traditional Law in Modern India, XXIV J. Social Issues 65-91 (1968).

20. Bernard S. Cohn, Anthropological Notes on Disputes and Law in India, 67 Am. Anthropologist, No. 6, pt. 2, at 108 (1965).

21. M. C. Setalvad, The Common Law in India 225 (1961).

22. The Law Commission repulsed agitation for an “indigenous system” with the observation that “had the ancient system been allowed to develop normally, it would have assumed a form not very different from the one that we follow today.” Law Commission of India, supra note 16, at 30. Cf. the conclusions of G. D. Khosla, Our Judicial System 67 ff. (1949).

23. An exception must, of course be made for the solicitors in the cities of Bombay and Calcutta where the divided profession still prevails on the Original Side of the High Courts. In 1958, out of the 75,000 lawyers in India, 1,100 were solicitors. Law Commission of India, supra note 16, at 584-85.

24. In 1963 there were 2,050 practicing barristers in England and Wales and approximately 20,000 practicing solicitors. American Bar Foundation, International Directory of Bar Associations 45-47 (1964).

25. Brian Abel-Smith & Robert Stevens, Lawyers and the Courts: A Sociological Study of the English Legal System 1750-1965, at 1 (1967).