The author lashes out at the proposal of the Government to enact a new law to regulate lawyers, claiming that it will be an immense waste of public money. Instead, if the Government is really serious of protecting the interests of the public, then there is a series of steps it can take under the existing legislation to promote the rule of law and enhance standards in the profession, says the author. The author identifies 10 such steps which he claims will reform the legal sector.
The Government of India is proposing to introduce “Legal Practitioners (Regulations and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of law) Act, 2010“, and has requested for suggestions from the stake holders i.e., Public in General, Legal Fraternity, Educationalist, etc. Under Clause 35 of the proposed Act, until competent regulatory bodies are established by the Central Government or State Government as the case may be. The Legal Services Board shall function as the regulator for the regulatory objectives under this act for legal professionals other than those covered by the Advocates Act, 1961 as enumerated in Schedule I i.e.
If the proposed law becomes an Act it may result as threat to independence of legal profession. By introducing the proposed law the Government is recognizing that the persons, other than the Legal Practitioners, can also render the legal services, without prescribing any minimum qualifications for rendering legal services
1. Qualified Lawyers, who are not practicing advocates, doing legal services in their Chambers.
2. Qualified Lawyers engaged in drafting and conveyancing.
3. Income Tax Practitioners.
4. Sales Tax Practitioners.
5. Practitioners in Revenue Courts.
6. Customs Clearance Agents.
7. Customs and Immigration Law Practitioners.
8. Trade Mark Attorneys / Lawyers.
9. Patent Attorneys / Lawyers.
One may have to debate when a legal profession is controlled by the Bar council of India and respective Bar Association of States, do we require one more body to regulate the Legal Practitioners. According to me there need not be one more body to regulate the Legal Practitioners. If the proposed law becomes an Act it may result as threat to independence of legal profession. By introducing the proposed law the Government is recognizing that the persons, other than the Legal Practitioners, can also render the legal services, without prescribing any minimum qualifications for rendering legal services.
By introducing the Act and constituting a separate forum, the Government will be spending the tax payer’s money to unproductive purposes. We are very good at framing the law, but, very poor at administering the same. At this juncture, we require a good monitoring agency. Framing new law is not the solution
We do appreciate that there has to be a Body to regulate the Tax Practitioners (Income Tax and Sales Tax), who are neither members of Legal Profession nor the members of Accountancy Profession. As there are neither any guidelines nor any statutory regulation for monitoring the Income Tax and Sales Tax Practitioners, the proposed body can bring discipline amongst the Tax Practitioners. It may be worth appreciating that the ITAT Bar Association, Mumbai and All India Federation of Tax Practitioners have adopted Code of Ethics which is binding on their members including the Tax Practitioners. However, only few Tax Practitioners are members of these Associations and most of the Tax Practitioners are not members of any professional organizations. Hence, there has to be a body to regulate the tax Practitioners. Today, in our country anybody can, prints his card and letter head and start practice as a Tax Practitioner. Assessees are not in a position to verify the Tax Practitioner’s professional qualification and registration and if there is any professional misconduct, they are left with no remedy. If Government really desires to protect the interest of clients and maintain the standards in the profession, we suggest as under.
1. All Tax Practitioners should get registration from a competent forum. Government may nominate All India Federation of Tax Practitioners as designated authority to grant certificate of registration by verifying the educational qualification and competency to render the service. As the Federation has Five Zones it can monitor the tax Practitioners of respective zone.
2. There has to be compulsory renewal of registration every year.
3. The Tax Practitioners must attend a minimum number of educational program me to update on the development of law.
4. The Tax Practitioners must quote his or her registration number in his or her letter head, Letter of Authority, etc.
5. The assessee can verify the genuineness of the Tax Practitioners by visiting the website of the registering authority.
6. For customs clearance agents there has to be a separate organization which can monitor the functioning of customs clearance agents.
7. If Government really desires to protect the interest of legal profession and maintain the honour of profession the Government must provide sufficient infrastructure to the legal profession by providing facility of library, etc. in various Court premises. Conditions in sub-urban Courts of Mumbai is very bad, the Lawyers have to stand outside the Courts.
8. The Hon’ble Law Minister and Hon’ble Chief Justice of India may make a surprise visit to some of the Courts, without informing the people concerned and satisfy themselves as to the facilities provided to the Courts and functioning of Courts. The first hand information will help them to decide the future course of action and we can have better justice delivery system in our country.
9. As regards the taxation is concerned there is always continuous educational programmes for members where as in other branches of law very few educational programs for the development and education of members of Bar. There has to be continuous educational program me in various branches of law which will enable the legal profession to render better service to the clients and Courts.
10. In the era of specialization it is the time to debate whether the legal and Accountancy profession can have partnership, which will enable the professionals to render better service to clients.
According to me, the proposed Act will not serve the desired objectives. By introducing the Act and constituting a separate forum, the Government will be spending the tax payer’s money to unproductive purposes. We are very good at framing the law, but, very poor at administering the same. At this juncture, we require a good monitoring agency. Framing new law is not the solution.
I appeal to all the members of legal fraternity to send their suggestions to the concerned authority which will enable the Government to decide whether we require the proposed law.
Dr. K. Shivaram
Note: – Readers can read the full text of Bill at https://lawmin.nic.in/la/NALSA.doc and can send their view to following address:-
Mr. M. A. Khan Yusufi,
Joint Secretary & Legal Adviser,
Room No 406, ‘A’ Wing, Shastri Bhawan,
New Delhi – 110001
Tel. No. 2338 5383
Reproduced with permission from the AIFTP Journal, May 2011