WHY THE TEST OF LANGUAGE FOR LAWYERS ?

Article 348 of the constitution of India says that the languages of the Supreme Court and every High Court will be English. However, Article 348 (4) further provides that the Governor of a State may, with the previous consent of the President authorise the use of Hindi language or any other regional language used for any official purposes. Taking recourse to this proviso, some High Courts have allowed making the arguments etc. in Hindi but the decisions to my knowledge, are delivered in English alone.

In my opinion, the use of English should be completely dispensed with. This is right or wrong is an altogether separate issue but it underlines the importance of English language in all courts — right from the Apex Court down to the trial courts. Since the principle of stare decicis is applicable for the judicial discipline; the working knowledge of English language assumes much importance. In the Common Law system, the precedent is one of the main sources of the law. Hence, every advocate regardless of the place or court, S(he) is practising the knowledge of English language hardly needs to be emphasised.

There are innumerable law colleges in Country where nowadays law subjects are taught not through English medium but through Hindi medium or regional languages. Their biggest handicap is in understanding the statues and decisions of the High Courts because their knowledge of English is abysmally and awfully poor. That is why; these advocates often contribute to the miscarriage of justice.

Bar Council of India has now, though, introduced the All India Bar Examination system for enrolling the advocates but this examination is thoroughly inadequate because no test of the candidates of English language is conducted. So much so, the test of English language is not held in the Supreme Court of India for the Advocates-on-Records. Yours truly once asked one of the judges of the Supreme Court of India as to why the English language is not included as one of the papers? He said that it was presumed that those practising in the Supreme Court would be exceptionally sound not only in the law but also in the English language, that was why it was never thought to be on these lines. All the same, the judge said almost in the same breath that he felt that a paper of English language must be introduced.

In fact, this job should be done by the Bar Council of India because the knowledge of English language for citing the judgments of the Supreme Court and the High Courts are the sine qua non for any advocate.

Supreme Court of India must also take initiative in this regard. The Supreme Court Bar Association could have taken the lead but regrettably, the SCBA leadership is mired in other controversies instead of making and positive contribution in honing the art and skill of advocacy.

Yours truly can say it on the basis of the information that he gathers almost every day that advocates, even many seniors suffer from the debilitating effect of the English language. What the SCBA is, however, doing is restricting, the voting rights of the advocates palpably wrong.

So long some basic criterion for enrolling the advocates are not adopted; all talks of improvements in the quality advocates and the membership of the SCBA is bound to flounder on the hard rocks of language ignorance.

Relevancy Of AOR System In The Supreme Court?

The immediate cause of this writing is the controversy that is going on in the Supreme Court about the need and relevance of the AOR system.

I am of the opinion that every advocate must have passed some sort of examination conducted by the particular court to practice there. But it should be not on the pattern of the Advocate-on-Record Examination as is conducted by the Supreme Court of India.

It may be interesting to know that there are three types of practicing Advocates in the Supreme Court. The first category is of Senior Advocates, who have been designated by either the High Courts or the Supreme Court of India.

Many questions have been raised about the designation of 'Senior Advocates' by different High Courts. Many senior advocates have been able to wangle this designation more by foul means than fair. The level of their arguments in the courts proves the point. But In the Supreme Court also there are two ways of getting seniorship.

One; from among the advocates which certainly is difficult and a well deserved honour and the other consists of those who are designated seniors by being the former judges of the High Courts. The convention is that any High Court judge starting practice in the Supreme Court is conferred the designation without any fuss. This indeed is an honour more for the High Court’s than to judges. But do they justify their 'seniorship'? This is a question which always nags most of the advocates and the reply would certainly not be encouraging one.

Then there is the second category of Advocate who are known as Advocates-on-Record. They have to pass an examination with at least 60 per cent marks in each of the four papers namely; Leading cases, Practice and Procedures, Drafting and Professional ethics and Accountancy.

Anybody aspiring to appear in the examination of the AOR should have been enrolled with any Bar Council for at least four years. Thereafter, he or she has to go for practical training for one year with any Advocate-on-Record of at least 10 years standing. Thus the examination is certainly very easy one. However, one often comes across a lot of AORs whose knowledge of law and language is certainly not up to the mark. However, it is an altogether matter.

The point that I want to make here is about the conduct of these AORs. Most of the AORs have reduced themselves to the level of 'name lenders'. Since no petition or document can be filed in the Supreme Court without the signature of the AOR, some of the AORs have got their practice confined only on the signing on the petitions and make money out of it. The main work of the AORs as provided in the Supreme Court Rules is to take the briefs from clients, understand the case, do the research work, draft the petitions and argue the case in the court or brief the Senior Advocate for arguing the case.

The degradation among AORs has gone down to the alarming level and that is why, they have lost much of the respectability, which they used to enjoy once.

There is third category of the Advocates. This is something that defies all logic. One can start arguing the case from the day one of becoming the Advocate. There is no restriction at all. The less said about it the better. Some of the advocates with experience of this category are just brilliant but many of them have abysmally low standard.

There are many advocates who do not understand the meaning and import of the case laws because they do not have any comprehension at all but they never feel ashamed of their colossal ignorance.

This is why, there is an urgent need to assess the basic knowledge of the law and language of every advocate, who wants to practice in any court; be it, lower court, High Court or the Supreme Court. I will write about the improvement in the standard and functioning if the AOR's in my next post.