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.

This paper reports some preliminary findings on the role of lawyers in the modernization of Indian society. Lawyers in district towns were interviewed for the purpose of discovering what contribution lawyers make to political socialization appropriate to a democratic polity.

In addition to containing religious centers of pilgrimage, regional and local markets, and educational establishments, a district headquarters town in India is, virtually by definition, the seat of a whole complex of law courts. The personnel whose activities contribute to the patterning of social life in such towns includes as an essential feature a small brotherhood of local legal practitioners. The present paper describes one such brotherhood: the advocates who practice in a district headquarters town in Haryana. The main problem with which I shall be concerned is that of isolating and describing the system of social relations, the interconnected set of behavioral patterns, that occurs in the daily interactions among a hundred or more professionals in the district courts. It follows that the paper looks to lawyers rather than law.

Under British rule, the indian legal profession was alone in offering to the talented an opportunity of gaining both wealth and prestige, and its lure to the young was equalled only by the Indian Civil Service. But the foundations upon which the profession's preeminence was based have now eroded. Rent suits, the principal source of its rural income, have all but disappeared. In 1935, of the 224,709 civil suits instituted in the courts of what is now the state of Bihar, 80% were rent suits, by 1962 the number of civil suits instituted in the courts had dropped to 43,978, and only 5% of these were rent suits. The departure of the British opened new, competing, career alternatives, and a widening net of education undercut the advantages of wealth, family and caste. New social conditions have not only required the advocate to rely upon different sources for his legal income—they have begun to transform the nature of the profession itself. There has been a steep decline in the relative prestige it once enjoyed.

The continuing controversy over property rights, which began with efforts at land reform in the constituent assembly, has gone on at two levels: that of the battle between government policy-makers and legislative draftsmen on the one hand and the bar and courts on the other; and that between shifting political forces in India—those pressing for reform and those resisting. The initial struggle, in writing the Constitution, centered on the fate of the traditional rights of zamindars and similar intermediaries (often absentee landlords) whose holdings were sometimes very lucrative and drew protest from the exploited tenants. The main questions at this time were: should there be compensation and if so how much; should this decision be left to the state legislatures or should it be justiciable; what safeguards should be created to prevent extreme legislative action; should other kinds of property receive full compensation if taken by the state; should there be a distinction between major social reforms and property takings for public use? Article 31 of the Constitution was the compromise formula and its ambiguities left the issue quite open.

Lawyers had a profound influence upon the legislative history of the Hindu Code Bill. Enacted as a series of separate acts between 1954-1956 by India's First Parliament, this bill was intended to modernize, unify, democratize, and secularize Hindu family law and Hindu society, and especially to emancipate Hindu women. I shall first outline the general influence of lawyers in India's national legislature during 1921-1956. Then I shall describe their influence on the pivotal events of this particular legislative history, with primary emphasis upon the British Indian period.

Throughout this legislative history lawyers tended to dominate the legislature, its leading political parties, and the executive (not to mention the judiciary). In the British Indian Central Legislature, lawyers usually formed the largest single occupational group. Even when landlords achieved numerical supremacy, lawyers maintained actual legislative leadership. Parties did not attain great strength in this legislature, but the more important of those that did arise were led by lawyers. After independence, in the Provisional Parliament (the legislative side of the Constituent Assembly) and in the subsequent First Parliament, lawyers constituted the largest and most influential occupational group. Lawyers supplied the majority of members and most of the leadership of the Congress Party, which controlled these Parliaments, and of other parliamentary parties which took an interest in the bill.

Thirty-six men served on the Supreme Court of India from its inception in 1950 through 1967. Examination of their background attributes reveals that the prototypic judge was the product of a socially prestige-ful and economically advantaged family, was a Hindu (most often a Brahmin), was educated at one of the better Indian universities or in England, spent twenty years in private law practice before the High Court in his home state, refrained from participation in the nationalist movement before 1947 and in postindependence politics thereafter, was appointed to the High Court before which he practiced when he was forty-seven, spent ten years as a High Court judge by which time he was the Chief Justice or seniormost puisne judge of that Court, and then was promoted to the Supreme Court when he was fifty-seven years of age. There are, of course, exceptions to this prototype, but striking is the homogeneous character and similar socialization experiences shared by these men.

The legal profession as it exists in India today had its beginnings in the first years of British rule. The Hindu pandits, Muslim muftis and Portuguese lawyers who served under earlier regimes had little effect upon the system of law and legal practice that developed under British administration. At first, the prestige of the legal profession was very low. From this low state and disrepute the profession developed into the most highly respected and influential one in Indian society. The most talented Indians were attracted to the study and practice of law. The profession dominated the public life of the country and played a prominent role in the national struggle for freedom. “There was no movement in any sphere of public activity—educational, cultural, or humanitarian—in which the lawyers were not in the forefront.” However, after independence the relative prestige and public influence of the profession declined.

There can be no doubt that parties to a lawsuit in ancient Hindu law had a right to be represented by other persons. The question arises whether or not the representatives referred to in the ancient texts correspond to the pleaders, advocates, vakils or attorneys of modern India. In other words, did ancient Hindu law have the kind of legal procedure in which the rights of the parties were safeguarded through the services of a class of experts, as is the case in present day India and in most other modern legal systems?

Looking at Hindu law as it became known to the West in the latter half of the 18th century, it did indeed seem as if the question was to be answered in the affirmative. Halhed's Code of Gentoo Laws (1777), translating the Vivadarnavasetu, did have a section (ch. III, § II) explicitly called “Of appointing a vakeel (or attorney).”

Relatively little is known about the operation of legal systems in India during the period of Muslim political dominance, primarily because most disputes were settled outside of the courts that were maintained by the ruling powers. Even during the Mughal period, when the government was more highly centralized than at any other time before the British conquest, Mughal law enforcement seldom reached the village level. Only in cases where there had been a very considerable breach of the peace, or where the revenue of the village had not been paid, were villagers likely to come into contact with Mughal law enforcement officials. One reason why the Mughal legal system was relatively undeveloped in the rural areas was that the Mughals possessed neither the manpower nor the means of communications that would enable them to staff and operate such a system of courts extensive enough to provide convenient access to the villagers.