I. ADVOCATE'S ROBES

A letter to the editor of The Times of India written in late August 1947, a week after India's partition and independence, read:

At the colonial bar, costume was a way of marking identity. Before the twentieth century, it was common for Indian lawyers to wear Indian dress and headwear, a practice that died out among younger members of the bar in the first decades of the twentieth century.Footnote ² Lawyers’ clothing also became a subject of considerable attention in the 1920s because of the stratification that it had come to represent. In some jurisdictions, most notably Calcutta, Indian-trained vakils were required to wear a professional dress that distinguished them from advocates. In fact, according to the 1953 Report of the All-India Bar Committee, this ‘distinction in the professional robes of the two sets of legal practitioners’ was among the grievances that led to the first major effort to establish a national bar in India, culminating in the Indian Bar Councils Act of 1926 (Bar Councils Act).Footnote ³ Though the Bar Councils Act was not successful in establishing such a bar, it eliminated the formal distinctions between Indian-trained vakils and other lawyers, and provided a framework for provincial bar councils. The Bar Councils Act reflected the ongoing connection between the stratification of the bar and efforts to organize the profession along national lines. This process would eventually culminate in the period studied here, with the passage of the Advocates Act 1961 (Advocates Act).Footnote ⁴

Academic studies of the colonial bar have suggested that amongst the most important roles of legal professionals has been as bearers of identity and culture.Footnote ⁵ With this in mind, it is less surprising that one of the Times of India reader's first thoughts after the attainment of independence would concern lawyers’ clothing. After all, lawyers’ Anglicized dress code reflected the Indian legal system's colonial roots. Accordingly, bar councils after independence began to adjust the wardrobe of the legal profession, as well as other courtroom formalities such as the manner in which judges were addressed. The Bar Council of Maharashtra, for instance, resolved in July 1965 to dispense with the wearing of barristers’ gowns in the High Court. Advocates, they decided, should appear in a black coat and white bands. In reference to judges, they dispensed with the use of ‘My Lord’ and ‘Your Lordship,’ in favour of ‘Mr Judge’ or ‘Sir’.Footnote ⁶ The Bar Council of Delhi followed suit in October 1965, adding that advocates could wear white bands or a black tie.Footnote ⁷

Advocates’ robes provide a useful metaphor for a general problem facing the Indian legal profession as well as the nascent nation-state as a whole: after independence, how were the social and political institutions that originated during the colonial period to be reconstituted for the post-colonial nation-state? This broad question has been addressed historically from several angles, but generally two dominant narratives exist, at least when it comes to the law. One, championed by the post-colonial state, sees independence as a triumphant moment of radical change, a rejection of colonial forms of rule, and a fresh start as a sovereign nation-state. Another more critical narrative sees independence as largely illusory; while the government changed hands, many of the legal structures that undergirded the post-colonial state were almost identical to their colonial predecessors.Footnote ⁸

Advocates’ robes help us understand this dialectic of colonial continuity. Independence may or may not have been a moment of radical change; however, it was a moment in which there was widespread belief in the possibility of radical change. That is, while independence might not have been a moment in which material circumstances changed considerably, it was a moment of a radical reimagining, an attempt to rework and retool colonial institutions for post-colonial life. As the following pages will show, this led to discursive and symbolic change – like the adjustment of advocates’ robes – but also at least some amount of substantive and structural change, even if that change was ultimately constrained by the entrenchment of colonial modes of governance.

This paper is not intended to be an overview of the post-colonial legal profession in India, but instead offers an analysis of a series of transformations in elite discourse, in an attempt to understand how a colonial elite refashioned itself under the post-colonial nation-state. Marc Galanter and Nick Robinson have recently conceptualized the structure of the Indian bar as being dominated by a small group of ‘Grand Advocates’ who accept the bulk of legal work, towering above a saturated market for junior advocates.Footnote ⁹ Galanter and Robinson's argument reflects a historically durable and steep hierarchy within the bar, dating back to the colonial era and continuing through post-colonial times. At the time of independence, the talent, prestige, and wealth of lawyers practising in metropolitan High Courts such as Bombay, Madras, and Calcutta, and later the Supreme Court, was significantly greater than that of the district bars.Footnote ¹⁰ Within both the High Court and the district bars, legal work was often concentrated in the hands of a few eminent lawyers.Footnote ¹¹ The first Attorney-General of independent India, MC Setalvad, for instance, recollected in his autobiography that by the late 1920s at the Bombay Bar, ‘On a number of occasions, on chamber days, [Muhammad Ali] Jinnah and I were the opponents in most of the matters, having as many as 25 or 28 applications out of a total of 33 or 35 in the list’.Footnote ¹² Historically, the legal elite has largely been populated by relatively wealthy, upper-caste Hindu (or, particularly in Bombay, Parsi) men, many of whom had substantial family ties within the legal profession.Footnote ¹³ Whether family ties or otherwise, leading lawyers of the colonial bar often had deep connections with the zamindar landowning class or prominent regional merchant communities, such as Marwaris or Parsis.Footnote ¹⁴

Elite lawyers of the late colonial and early post-colonial period, moreover, tended to be advocates for the continuance of the major structural aspects of the colonial legal system. Scholarship on the colonial legal profession has suggested that the Indian legal elite was heavily invested in the British legal system.Footnote ¹⁵ The historical record is clear that the post-colonial bar in India was an early and powerful promoter of colonial continuity in many forms.Footnote ¹⁶ As legal scholars have noted, post-colonial lawyers often have a vested interest in the promotion and reproduction of the colonial legal order.Footnote ¹⁷

We should avoid the conclusion, however, that Indian lawyers unquestioningly adopted British legal practices wholesale; historians have correctly questioned the narrative that Indian legal and political forms are entirely the product of the ‘modular forms’ of Europe (or that those modular forms were themselves entirely the products of Europe).Footnote ¹⁸ The leaders of the Indian bar in the early years of independence repeatedly made demands for institutions that they believed were specific to the Indian context. Much like the case of advocates’ robes, the elite of the bar strove to reimagine a legal profession that would be, as it were, ‘better suited to Indian conditions’.Footnote ¹⁹ In one respect, this entailed looking beyond Britain for legal interlocutors, in particular to other constitutional republics like the United States; but it also resulted in a significant degree of innovation in response to the specific socio-political context(s) of post-colonial India. This became particularly apparent in the field of administrative law, and later in social action or public interest litigation, where Indian judicial innovation has been the most pronounced.

This paper is in conversation with two interrelated sets of literature. First, the paper places the legal profession within legal histories of the post-colonial Indian nation-state. The most cogent example of this work is Rohit De's recent book, A People's Constitution: The Everyday Life of Law in the Indian Republic, which argues that constitutional law both shaped and was shaped by the everyday lives of ordinary Indians in the first decades following independence.Footnote ²⁰ Secondly, this paper builds on recent sociological work on lawyers in contemporary India and elsewhere in the decolonizing world, exemplified by Yves Dezalay and Bryant Garth's Asian Legal Revivals.Footnote ²¹ Dezalay and Garth rely on the broader sociological literature on elites, and particularly Bourdieu's formulation of elite strategies within the fields of law and state power, to trace the complex relationship between Asian lawyers, their international interlocutors, and the state over the course of the latter part of the twentieth century.Footnote ²² They provide a compelling account of how Indian lawyers leverage various forms of social, cultural, economic, familial, and foreign capital to negotiate their position within the field of power constituted by the Indian state. Although my approach is historical rather than sociological, I draw significantly on Dezalay and Garth's understanding of elite lawyers as marshalling various forms of capital to shape their position in domestic ‘palace wars’, and particularly on the notion of ‘double agency’ that they derive from Kantorowicz.Footnote ²³

Historical studies of the legal profession in India are strikingly sparse, with only a few examples from the last sixty years; historical perspectives on the early post-colonial period are even rarer.Footnote ²⁴ This article aims to narrow this gap in the literature by tracing the interaction between the early post-colonial Indian nation-state and the legal elite. I argue that the formation of the Indian nation-state transformed the discursive strategies of legal elites in two crucial ways. First, in response to the slipping grasp of the profession on Indian political life and increasing competition from other fields like economics, the elite bar turned its attention towards the consolidation of a national legal professional identity, imagining an ‘Indian advocate’ as such, whose loyalty would ultimately lie with the nation-state. This imagination, however, was constrained by the distribution of power within the bar, and therefore remained largely an elite project. Second, the creation of the Supreme Court of India, the enactment of the Constitution of India, and the continuous swelling of the post-colonial regulatory welfare state reoriented the profession towards public law, and particularly towards the burgeoning field of administrative law. This shift in priorities was reflected in the agendas of organizations formed by elite lawyers in the early post-colonial period, particularly the Indian Law Institute (ILI). Public and administrative law, moreover, allowed lawyers to subscribe to the imperatives of development and modernization while continuing to project themselves as checks on the developmentalist state's constriction of personal liberties. As Garth and Dezalay have noted, we may consider these two discursive activities as forming part of the ‘collective strategies through which lawyers seek to maintain and build their position in the field of state power’.Footnote ²⁵ By examining these two specific strategies, I hope to corroborate the effectiveness of a method that considers both ‘politics’ and ‘markets’ (and their fundamental interrelatedness) in studying the professional strategies of elite lawyers.Footnote ²⁶

Following this introduction, this paper consists of four more parts. The second Part briefly examines the colonial history of lawyering in India, in particular, the interface between legal elites and nationalist politics. The third Part sets the stage for the post-colonial era, describing the fraught relationship between the Nehruvian state and the elite bar, and suggesting that lawyers were marginalized by the state in some respects and more deeply brought into the state apparatus in others. The fourth Part describes the first major transformation in the discourse and organization of the elite bar, arguing that in order to maintain their relevance and influence within post-colonial society, elite lawyers attempted to consolidate both a professional identity and institutions that were national in character. I argue that these institutions were largely intended to enhance the prestige of legal elites by locating them at the helm of a national professional constituency. The fifth Part discusses the consequences of the discussion in the previous two sections for Indian jurisprudence and legal practice, arguing that elite national institutions largely devoted their energies towards public law, particularly administrative and constitutional law, during the early decades of independence.

II. LAWYERS, COLONIAL RULE, AND INDIAN NATIONALISM

The Indian legal profession, as it exists today, emerged out of the social, economic, and political transformations of the nineteenth century. During the Mughal era, there existed a class of functionaries called vakils, which later became the generic term for Indian-trained lawyers. Though some of their duties resembled those of later lawyers, Mughal-era vakils served as agents and representatives in a much broader capacity than modern lawyers.Footnote ²⁷ It was not until the re-organization of the Indian legal system in the late eighteenth and early nineteenth centuries that a class of Indian legal professionals developed whose primary service was to represent clients in court. Over the course of the nineteenth century, a series of legislation regulated a somewhat cohesive professional class into existence.Footnote ²⁸

Lawyers, especially those who were called to the bar at the Inns of Court in London beginning in the 1860s, quickly rose to the top of the Indian socio-political hierarchy. Indian lawyers served in the legislative assemblies, as civil administrators, and by the 1920s, even as representatives to the League of Nations.Footnote ²⁹ By the early twentieth century, lawyers had become so prominent in the corners of government conceded to Indians that the British bemoaned the state of affairs as a vakil raj (lawyer's rule).Footnote ³⁰

While the legal profession offered a relatively prestigious position within the ranks of empire, it was also associated with those who subverted colonial rule, and those who would eventually take the reins of India as an independent nation-state. Many nationalist leaders had studied law at the British Inns of Court in the late nineteenth and early twentieth centuries. Mahatma Gandhi, for instance, travelled to South Africa in 1893 after having been called to the bar at the Inner Temple and failing to find work in Bombay.Footnote ³¹ Jawaharlal Nehru also studied at the Inner Temple, and Vallabhbhai Patel at the Middle Temple.Footnote ³²

Over the course of the mid-twentieth century, however, the public prestige of the legal profession suffered considerably. There were at least two reasons for this: first, by the late nineteenth century, the legal market became heavily saturated, which, many argued, led to the deterioration of professional conduct. Fierce competition among lawyers reportedly forced advocates to resort to illicit means of finding and winning cases, and lawyers increasingly became associated by the public with practices like touting, witness tampering, and perjury.Footnote ³³ Second, while lawyers formed the backbone of the early Indian National Congress and continued to do so until independence, by the first decade of the twentieth century, the mainstream nationalist movement began to marginalize the practice of lawyering as such. For instance, although Gandhi had practiced as a lawyer in South Africa, he roundly rejected the profession in his Hind Swaraj or Indian Home Rule, writing that ‘My firm opinion is that the lawyers have enslaved India, have accentuated Hindu-Mahomedan dissensions and have confirmed English authority’.Footnote ³⁴ Gandhi and his followers viewed lawyers as functionaries of colonial rule, and called for them to boycott the courts as part of non-cooperation with the British Raj. As it turned out, few practising lawyers heeded his request, but Gandhi's framing of lawyers did no favours for the profession's public image.Footnote ³⁵

As the orientation of the post-colonial state shifted to developmentalist economics and the construction of a regulatory welfare state, lawyers’ role in society was thrown even more into question. The following Part traces the tense relationship between the Nehruvian state and the legal profession in the early years of independence.

III. LAW ON THE MARCH: THE LEGAL PROFESSION IN A PLANNED SOCIETY

Under Jawaharlal Nehru, the first Prime Minister of India, the Indian state grew substantially in the direction of a developmentalist regulatory welfare state. Lawyers, whose traditional role, as one Indian lawyer put it in 1956, is ‘to retard the pace of social progress by putting in spokes here and there in its wheels’, therefore clashed frequently with the interests of the post-colonial state.Footnote ³⁶ As early as 1953, opposition members in the Bombay Legislative Assembly alleged that the Bombay Government ‘had developed a peculiar dislike for lawyers as a class because they had challenged many Acts of the Government’.Footnote ³⁷ Prime Minister Nehru shared this animus towards lawyers. After all, in the first two decades after independence, India was a country on the march. India's ‘March of Progress’ demanded a powerful state, one that could take control of national economic development from the centre. The bar, steeped in liberal principles and English common law, represented to Nehru a natural threat to this developmentalist ideal. He made this enmity clear by declaring in Parliament, ‘[A] lawyer represents precedent and tradition and not change, not a dynamic process. Above all, the lawyer represents litigation’.Footnote ³⁸

As early as July 1949, Nehru took issue with the high fees that lawyers were charging the post-colonial government. In a directive to all branches of government, he wrote:

Members of the press shared these sentiments; a November 1949 article from the weekly newspaper The Delhi Times, perceiving a failure of government departments to act on Nehru's July directive, dubbed lawyers ‘provincial parasites who have been fattening on the Government of India's funds’.Footnote ⁴⁰

The Nehru administration was also noted for its fraught relationship with the judiciary. In response to a June 1950 judgment of the Bihar High Court which ruled it unconstitutional for the state to redistribute the land of zamindars (landed gentry) without compensation, Nehru proposed the First Amendment, which, inter alia, declared the validity of a number of contested land reform laws.Footnote ⁴¹ Nehru's subsequent persistence in amending the constitution to reverse court decisions, as well as a generally sympathetic Supreme Court bench, led to a relatively docile court, at least until 1967, when the Supreme Court delivered a ruling in Golak Nath vs. State of Punjab Footnote ⁴² that barred the amendment of the Fundamental Rights chapter of the Constitution of India.Footnote ⁴³

Thus, even though he was Prime Minister, Nehru made a somewhat perplexing choice of speaker for the inaugural address of the 1959 Delhi Congress of the International Commission of Jurists, a CIA-funded organization that advocated against the encroachment of the executive on individual rights.Footnote ⁴⁴ One must imagine the dismay of the conference organizers upon hearing Nehru's address, in which he suggested, ‘[T]he law is supposed to curb the predatory instincts of the individual. Now, where is protection of the rights of the individual fitted in with curbing the predatory instincts of that individual? Some line has to be drawn somewhere, and the line may vary’.Footnote ⁴⁵

Always the diplomat, Nehru qualified his statement: ‘I am merely putting before this distinguished audience some difficulties and problems that arise in my mind because we live obviously in changing times, and times change with amazing rapidity’.Footnote ⁴⁶

And that was the crux of it; for Nehru, law needed to be flexible in the hands of the state in order to allow for the sort of radical economic change that he envisioned for India. Conversely, lawyers, especially those in the common law tradition, had a vested interest in the promotion of tradition and precedent, not radical change, and especially not change driven by the state.Footnote ⁴⁷

In many respects, Nehru was correct in his characterization of Indian lawyers as defenders of the status quo. As the state enacted new laws that sought to break up the estates of the landed zamindari class, the elite bar rushed to the aid of their traditional clients. Members of the bar frequently and publicly professed their distaste for the ‘March of Legislation’ that accompanied India's ‘March of Progress’.Footnote ⁴⁸ The editorial cartoons of Lawyer, a journal printed in Madras beginning in 1956, painted a vivid picture of a legal profession which felt hijacked by Nehru's intent on establishing a socialist welfare state. The cartoon for the February 1959 edition, for instance, showed Nehru, equipped with a stopwatch and whip, shouting ‘Hurry up! Hurry up, boys!’ and hurling books bearing the titles ‘Statutes’, ‘Rule of Law’, ‘Time & Justice’, and ‘Dignity of Law’ towards an alarmed advocate, who was being dragged towards a ‘Socialist State’ by a group of jubilant ministers.

In May 1961, the cartoon portrayed the welfare state as a monkey, whose open mouth was labelled ‘Court Fees and Cost of Litigation’, eating off the scales of justice while Nehru and his ministers looked on.Footnote ⁴⁹

Perhaps what alarmed lawyers most, however, was the increasing degree to which the post-colonial state actively sidelined the legal profession, by barring lawyers from practising in new alternative legal forums like industrial and administrative tribunals. After the Bombay Government proposed an amendment to the 1948 Bombay Tenancy and Agricultural Lands Act in 1953 which would prevent lawyers from practising in some tenancy tribunals, for instance, RA Jahagirdar, a senior member of the bar and former judge of the Bombay High Court, accused the Government of ‘trying to undermine the very forces that are responsible for maintaining the rule of law’.Footnote ⁵⁰ The Government, on the other hand, justified its position in terms of time and money: the entire point of developing alternative forums for the resolution of tenancy issues, it argued, was to provide quick and cheap justice. Lawyers, who profit from delay, would stretch out proceedings and make them prohibitively expensive.Footnote ⁵¹

A similar motivation drove efforts to exclude lawyers from the panchayat courts – small-scale local courts staffed (in theory) by five villagers. Many of the state-level pieces of legislation that provided for panchayats after independence explicitly barred lawyers from presiding.Footnote ⁵² This caused some consternation given Article 22(1) of the Constitution of India, which declared that ‘No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice’.Footnote ⁵³ When KN Katju wrote to KM Munshi expressing his concern over this, however, Munshi, who had participated in the Constituent Assembly, conceded that Article 22(1) had not been intended to provide a categorical right to legal representation, but applied more narrowly to issues of arbitrary detention.Footnote ⁵⁴ In any case, some lawyers would have rather had panchayats done away with in the first place than win the right to practice in them. Katju, for instance, wrote:

Katju's comment reflects a general point about the limits of post-colonial change within the legal profession. While the advent of India's independence as a sovereign nation-state altered the stakes and logic of the relationship between lawyers and the body politic, the post-colonial legal elite remained heavily invested in the major structural aspects of the existing legal system. This was partly due to their socialization and status as lawyers, as well as to the domestication of the colonial legal system. As Marc Galanter has described in his work on the ‘Aborted Restoration of “Indigenous” Law in India’, the project of panchayat courts largely failed because ‘the legal system was so thoroughly domesticated. That is, indigenization on the ideological/programmatic level failed because the law had become “indigenous” on the operation/adaptive level’.Footnote ⁵⁶ Galanter concludes that ‘numerous bodies of legal professionals were, almost without exception, so thoroughly committed to the existing system that it was difficult for them to visualize a very different kind of legal system’.Footnote ⁵⁷

As much as the encroachment of the executive on the rights of individuals (particularly individuals who happened to be elite lawyers’ landlord clients) alarmed the elite bar, lawyers were not always such obvious enemies of the burgeoning administrative state. Encroachments by the executive on private property certainly offended a number of lawyers’ liberal sensibilities. However, the emergence of the fields of constitutional and administrative law in India, recently analyzed by Rohit De in his study of the ‘Everyday Life of Law’ in early post-colonial India, offered lucrative opportunities for the legal profession to challenge these encroachments.Footnote ⁵⁸ As the post-colonial state embarked on its project of transforming the Indian economy, it instituted mechanisms for, among other projects, agrarian reform, the redistribution of partition evacuees’ property, and controls on an expansive array of commercial goods, many of which had originally emerged through the emergency regulations of World War II. To facilitate these processes, the Indian state delegated vast powers to government agencies; for example, De writes:

Broadly speaking, the functioning of government agencies and their ‘quasi-legislative’ and ‘quasi-judicial’Footnote ⁶⁰ powers falls under the rubric of administrative law, a field that was increasingly important to Indian legal elites in the early post-colonial period. As De has shown, moreover, the extensive use of administrative agencies by the post-colonial state led to constitutional challenges of excessive delegation, and to the development of a corpus of administrative jurisprudence.Footnote ⁶¹

Though the developmentalist state made some efforts to limit the power of lawyers in administrative tribunals, the development of Indian administrative law (and public law in general) facilitated a vast expansion in professional opportunities for lawyers by radically increasing the scale and scope of legal interactions between the public and the state. As Upendra Baxi has noted, the emergence of administrative law meant ‘big business’ for lawyers, ‘augmenting their affluence, prestige, and power’.Footnote ⁶² When the Finance Minister CD Deshmukh called the 1953 Estate Duty Act ‘Parliament's gift to the good people of India,’ for instance, a letter to the editor of the Times of India conceded that the minister might have been correct, ‘if by “good people” he meant the good lawyers of this law-ridden land’.Footnote ⁶³

Scholarship on the Indian legal profession has evaluated the relative successes and failures of the post-colonial bar in resisting marginalization by the developmentalist politics of the post-colonial state.Footnote ⁶⁴ Comparatively less attention has been paid to the ways in which the legal profession was itself moulded to (or at least around) the politics of development. Upon closer inspection, it is clear that as the Nehru administration constructed ‘temples of modernity’ and trained the next generation of technocratic development specialists, the elite bar also strove, in some respects, to become scientific, rational, and technocratic. They strove to adapt to, and profit from, the developmentalist state nearly as much as they resisted it. Indeed, as the fifth Part will demonstrate, those tasks were not as discrete as they might seem. First, however, I analyze the creation of national statutory and voluntary institutions for the profession alongside the parallel emergence of a discourse of the ‘Indian Advocate’ as an elite democratic vanguard.

IV. MAKING THE INDIAN ADVOCATE: CONSOLIDATING A NATIONAL PROFESSIONAL IDENTITY

By the time of independence, the legal elite felt that they were facing a crisis, or perhaps a number of crises. MC Setalvad referred to a ‘crisis of character’ within the bar; Justice PB Mukharji, later Chief Justice of the Calcutta High Court, told Stanford academics Carl Spaeth and Herbert Merillat of a ‘“crisis” in politico-legal affairs’, noting that ‘the law and lawyers are in low esteem, because the public looks upon them as opponents of the people's interest’.Footnote ⁶⁵ The association of lawyers with professional misconduct and greed had grown increasingly pervasive over the course of the twentieth century.Footnote ⁶⁶ As this severe public relations crisis combined with the state's shift in favour of developmental economics, the legal elite hastened their various attempts to remake, or at least rebrand, the legal profession. This section examines one major form in which they did so: the formation of a professional identity and institutions that were national in character. Though this process began in the early twentieth century, in 1961 it culminated in the Advocates Act, which established the Bar Council of India.Footnote ⁶⁷ Within the first decade of independence, Indian lawyers also established numerous other national organizations, like the All-India Association of Democratic Lawyers in 1954, the Indian Society of International Law in 1959, and, most significantly for our purposes, the ILI in 1956 and the Bar Association of India in 1960.Footnote ⁶⁸ By focusing on the formation of the ILI and the Bar Association of India, I argue that while there were a number of motivations behind the development of national legal institutions, the lawyers with the most power – the leaders of the bar and often those with important government posts – were primarily driven by two factors: one, an effort to regain the lost prestige of the profession by connecting the image of the bar with ‘service to the nation’; and two, an effort to give a consolidated voice to the legal elite as a Tocquevillian democratic aristocracy. In this sense, legal elites attempted to promote the idea of the ‘Indian Advocate’ as an elite democratic vanguard.

Organizations of legal professionals have existed in India at least since the mid-nineteenth century, when the rise of the Indian middle classes facilitated the growth of civil society organizations, including the first provincial pleaders’ associations.Footnote ⁶⁹ Efforts to organize the legal profession along national lines first gained prominence in the early twentieth century, though initially they met with little success. According to the official narrative, penned by India's fifth Chief Justice SR Das, the origins of the call for an All-India Bar lie in agitations by Indian vakils against the monopolization of the bar by British and British-trained barristers. The original sides of the high courts were dominated by British barristers and solicitors until roughly the turn of the twentieth century, when Indians began to predominate.Footnote ⁷⁰ While in some courts like Madras’ the distinction between various classes of practitioners was nominally eliminated early on, a rigid hierarchy within the ranks of the bar persisted well after Indian lawyers came to predominate its ranks. The Calcutta High Court retained the strictest divisions, wherein vakils were required to don a different professional dress and were barred altogether from the original side.Footnote ⁷¹ In Bombay, vakils were required to pass a special examination before practising on the original side. According to Das, these grievances led to the first organized effort to develop an All-India Bar, the Indian Bar Committee of 1923 (also called the ‘Chamier Committee’ after Edward Chamier, a retired Chief Justice of the Patna High Court who chaired the committee). The committee's recommendations led to the Bar Councils Act which eliminated the formal distinctions between vakils and advocates, allowing the formation of cohesive provincial bar councils (as opposed to separate institutions for vakils, attorneys, and barristers), and delegated to these bodies some control over admission to the profession and the setting of standards of professional conduct.Footnote ⁷² Faced with significant pressure from the judiciary, however, the Act gave the ultimate say on matters of discipline to the High Courts.Footnote ⁷³ The Chamier Committee, and ultimately the Bar Councils Act, favoured the establishment of provincial bar councils over a national bar, considering it ‘unthinkable that the first flight should carry the bar in India to a position which the English Bar with centuries of traditions and experience in self-management, has never yet aspired to’.Footnote ⁷⁴

Where efforts to form a national bar had failed in the 1920s, the bar of the early post-colonial period was relatively successful in establishing national institutions for the legal profession. By 1951, the Union government established a committee to consider the issue of an All-India Bar, chaired by Justice SR Das of the Supreme Court, who was joined by the Attorney General, MC Setalvad, as well as Bakshi Tek Chand (a former Justice of the Lahore High Court), VKT Chari (the Advocate-General of Madras), and V Rajaram Aiyer (the Advocate-General of Hyderabad).Footnote ⁷⁵ The recommendations of the committee, reaffirmed by the Law Commission headed by Setalvad which was established in 1955, declared the need for an All-India Bar Council, as well as consolidated state bar councils. These recommendations were formally enacted with the Advocates Act, which created the Bar Council of India and merged the various classes of legal practitioners into the sole category of Advocate.Footnote ⁷⁶ Shortly before the formation of the Bar Council of India, which was merely a statutory body tasked with managing legal education, professional qualifications, and a common roll of advocates, elite lawyers also founded the Bar Association of India, an unofficial organization with a much broader mandate.

As had been the case in the 1920s, a number of circumstances motivated the demand for an All-India Bar. I suggest at least four: the continuing stratification and differentiation between different classes of lawyers; the perception that professional standards were deteriorating; the post-colonial transformations in the Indian state; and a desire to promote elite lawyers in public and national life.

Although the Bar Councils Act led to the abolishment of formal distinctions in nomenclature and procedure between vakils and Advocates, and relaxed some of the more rigid divisions in High Court Rules, it did not establish an All-India Bar and largely failed to address the stratification of the bar, which seemed instead to be increasing in intensity.Footnote ⁷⁷ In 1959, Attorney-General Setalvad bemoaned the ‘grabbing’ of work by a few members of the bar, leaving many juniors under-employed.Footnote ⁷⁸ And while the distinctions between vakils and British-trained lawyers were a thing of the past, there remained a persistent and hierarchal collection of professional divisions. In some jurisdictions, the problem simply became the accumulation of excessive categories of legal practitioners. B Jagannadha Das, the Chief Justice of the Orissa High Court, recounted at the All-Orissa Lawyers’ Conference in 1952:

Beyond the obvious problem that this ‘bewildering’ maze of divisions posed for upward mobility within the bar, it also posed a problem to the elite. If legal elites, who were increasingly concerned about the profession's slipping grasp on political power, were to retain their legitimacy and relevance, they needed a cohesive body of constituents whom they could represent. Divisions in the bar only impeded this goal.

Another problem facing the bar was the issue of professional misconduct and corruption. Some observers, like KN Katju, a well-known lawyer who served as Home Minister and Defence Minister in the Congress Government, saw the issue partially in terms of a shift in the public's attitude after independence. In Katju's understanding, during the colonial period:

However, he wrote:

Katju was not alone in his sentiments. Another Indian lawyer, TR Bhasin, noted the shifting stakes of the legal system after independence, declaring that ‘the role of the lawyer is different now, and there is now no occasion for him to stand between the people and the executive power, because the latter is but a representative form of the former’.Footnote ⁸² Katju's comments, moreover, illustrate that the problem of professional conduct, as well as the remaking of the profession more generally, was tied up in the politics of colonial continuity. In Katju's eyes, at least, a collective feeling of public ownership over the post-colonial legal system led those who would have tolerated misconduct before British courts to condemn it in front of Indian courts, even if the structural aspects of the system remained largely the same. In this respect, the issue of misconduct represented the broader problem facing the bar – how could the profession re-imagine and reconstitute itself in order to retain its legitimacy under the nation-state?

The transformation of the Indian state into a regulatory welfare state provoked similar questions to the leaders of the bar. It seemed to many that the state was not only averse to individual rights but it was specifically allergic to the legal profession.Footnote ⁸³ Some lawyers, like RA Jahagirdar, justified the need for an All-India organization of lawyers on these lines.Footnote ⁸⁴ An All-India body of lawyers could serve both as the guardians of individual rights and civil liberties as well as a means of voicing professional concerns to the state and protecting the interests of lawyers.

Although elites tended to set the agenda, local meetings and organizations of lawyers provided crucial platforms for the promotion of national legal institutions. After a period of relative neglect in the 1940s, post-independence Indian lawyers began to convene meetings and conferences with increasing regularity. While cities with established High Courts like Madras had long been the site of legal meetings, new conferences began to emerge in places like Bijapur and Jaipur, and older conferences were revived in Bombay.Footnote ⁸⁵ Delhi, largely thought of as a legal backwater before independence, also became a site of increasing importance with the establishment of the Supreme Court and its corresponding bar.Footnote ⁸⁶ These conferences were often put together by the traditional sources of lawyers’ organizational power: provincial and local bar associations. There were also growing efforts to organize conferences on an All-India basis; in 1949, for instance, an All-India Lawyers Conference was organized at Nagpur.Footnote ⁸⁷

It should be pointed out, however, that the post-colonial state shaped the playing field for bar associations in a crucial way: the post-independence reorganization of the country into linguistic states, an effort that was spearheaded by Vallabhbhai Patel, the Congress’ strong-man organizer (incidentally himself a lawyer) until his death in December 1950. The reorganization of states created the political units to which bar associations would correspond, and therefore played a crucial role in determining how and with whom lawyers would organize. Bar associations, for their part, also played an active role in shaping the politics of reorganization. In 1952, for instance, the second Karnatak Lawyers’ Conference in Bijapur affirmed the Bombay Bar Association's conclusion about the formation of an All-India Bar and Council of Legal Education, besides acknowledging ‘the need for immediate formation of a separate administrative unit for the Kannada areas in the Indian Union’.Footnote ⁸⁸ When the placement of High Courts was altered because of the reorganization of states which occurred in Rajasthan and Kerala, lawyers directly organized strikes and satyagrahas to protest the removal of High Courts from their cities.Footnote ⁸⁹

The 1950s and 1960s saw the emergence of a number of new legal publications, especially those oriented explicitly toward professional concerns and specific emerging fields of law such as administrative, company, and labour law.Footnote ⁹⁰ Legal publication was fundamentally tied to forms of organization such as conferences and meetings; the proceedings of legal conferences often filled the pages of the journal of the All India Reporter or the Journal of the ILI. Publication thus extended the reach of legal meetings, allowing them to reach a much wider audience. It was these forms of organization that supplied the platform for the demand for an All-India Bar. In fact, it would have been difficult to attend a conference in the 1950s in which the effort to establish an All-India bar did not occupy a prominent position.Footnote ⁹¹

A number of practical and ideological motivations drove the demand for an All-India Bar, both before and after independence. According to the official narrative, however, independence marked a definite change in orientation. As Das wrote:

Das’ framing highlights that demands for an All-India Bar were increasingly driven by national elite concerns, even while they were undergirded to some degree by local forms of organization. Despite the putatively subaltern origins of the call for an All-India Bar, the campaign in the post-independence years was dominated by an elite cadre of lawyer-politicians and judges. While local bar associations provided an important platform for the promotion of professional ideology and discourse, a relatively small number of speakers dominated the burgeoning legal conference circuit in India. These figures tended to be either judges or members of the bar who held prominent positions in state or national government, for example, MC Setalvad, KN Katju, SR Das, CK Daphtary (the first Solicitor-General of India), Radhabinod Pal (the noted Indian Justice at the Tokyo Tribunal), and KM Munshi, a former Justice of the Calcutta High Court, governor of Uttar Pradesh in the 1950s, and co-founder of the ILI.Footnote ⁹³ In a sense, these lawyers formed a type of aristocracy – many belonged to prominent families, and the most prominent were often descended from the eminent lawyers of the colonial bar.

Despite their relatively diverse political affiliations, the post-colonial elite of the bar tended to agree on one thing: the post-colonial lawyer's allegiance must ultimately be to the nation. Presiding over the Bombay State Lawyers’ Conference in 1952, for instance, Setalvad cautioned his fellow lawyers,

Prominent lawyers, moreover, tied the need for an All-India bar to this imperative. Setalvad argued that ‘an organization of lawyers on an All-India basis was indispensable to a healthy and balanced growth of the profession and essential to enable the profession to play its just role in the development of the nation’.Footnote ⁹⁵ Das’ framing of the demand for an All-India bar as ‘a claim for the fulfilment of a cherished ideal’ is useful for understanding a discursive shift that was largely engineered by elites. As the elite of the bar came into their role under the post-colonial nation-state, they refashioned themselves as a Tocquevillian legal aristocracy, as democratic vanguards and guardians of the rule of law. This shift represented, perhaps above all, a struggle by the bar to remain legitimate and relevant under the post-colonial state. Certainly, elite lawyers strove to preserve the colonial institutions which gave them power. However, with a post-colonial population growing increasingly aware of its ownership of India's political and legal institutions, lawyers could not rely on political Luddism to retain their legitimacy. The legal elite knew that some change was inevitable, and attempted to adapt by building institutions that would create some sort of harmony between the profession and the developmental nation-state.

Observers at the time sometimes made the Tocqueville connection explicit. A column in the Times of India which covered MR Jayakar's speech at a 1951 meeting of lawyers in Bombay, for instance, read,

The legal elite would have found Tocqueville appealing, in part, because he thought it natural that ‘the government of democracy is favourable to the political power of lawyers’.Footnote ⁹⁷ Tocqueville also resonated because of the specifically aristocratic nature that he attributed to the bar's political power.Footnote ⁹⁸ This reflected the Indian bar both because it had developed in a common law system, in which precedent is king, and because the elite of the bar were mostly the sons of wealthy, often landowning, families who had a tradition of lawyering within the family.Footnote ⁹⁹ A number of studies of the colonial and post-colonial Indian bar have emphasized the importance of family connections for those who wished to have a successful career as a lawyer.Footnote ¹⁰⁰

The highly stratified structure of the legal profession undergirded the ideology of the legal elites who promoted the formation of an All-India bar. Many elites sincerely advocated improving the circumstances of the rank-and-file of the bar, who were largely under- or unemployed, but to many, the solution was to raise barriers to entry.Footnote ¹⁰¹ Many elite lawyers resisted the admission of those perceived to be of a lower socio-economic status or level of education. For instance, perceiving that the nobility of the bar was losing ground, KN Katju lamented in a 1965 All-India Reporter article that law was no longer the preserve of only the most well-to-do families.Footnote ¹⁰² In addition, while a small number of women like Violet Alva, Leila Seth, and Durgabai Deshmukh reached a prominent position within law and politics, the overall composition of the bar remained severely imbalanced with regard to gender.Footnote ¹⁰³ This was due in no small part to discriminatory treatment by male lawyers. Seth, recalling her days as one of only two women practising before the Patna High Court, wrote,

An All-India Bar, while it was rhetorically coupled with the elimination of different classes of practitioners in an effort to democratize the bar, could just as well serve as a means of preserving hierarchy. The Advocates Act may have contributed to the entrenchment of the ‘Grand Advocate’ model (even while it collapsed other hierarchies) by formalizing the designation of ‘Senior Advocate’.Footnote ¹⁰⁵ As Galanter and Robinson note, the title of Senior Advocate functions somewhat like that of Queen's Counsel (QC) in Britain, but while today almost 10 per cent of British lawyers receive the title of QC, fewer than 1 per cent of Indian lawyers hold the designation of Senior Advocate.Footnote ¹⁰⁶

For some, the centralized structure of a national organization could function as a check on the growth of local power within the bar. In his response to the question regarding the establishment of district bar councils on the All-India Bar questionnaire circulated among lawyers in 1951, the Supreme Court Advocate BR Mandlekar wrote:

While the Advocates Act contained no provision against the establishment of district bar councils, Mandlekar's response illustrates an idea that was crucial for the promotion of a national legal elite. The establishment of national institutions might have served to unify the bar, but it could also serve to formalize the class of lawyers that was most involved in their promotion as legal representatives of the post-colonial nation-state.

The post-colonial lawyers envisioned by the elite lawyers belonged to an aristocratic democratic vanguard. At the second All-India Law Conference in 1960, for instance, the notable barrister Sir Syed Sultan Ahmed suggested that, given that ‘the noble profession of law is not always nobly pursued in our country,’ the ‘spirit of eternal vigilance which sustained growth of democracy required’ could only be trusted to a small elite. India, he argued, needed a ‘small but devoted band of legal nobility to spearhead this grand democratic effort’.Footnote ¹⁰⁸ For Ahmed, this ‘small but devoted band’ consisted of the members of the ILI before him:

Ahmed's call for a democratic vanguard of lawyers illustrates that one of the functions served by national institutions like the Bar Association of India and the ILI was the formalization of a small cadre of national elites, the ‘Indian Advocates’ par excellence, who could lead the way on law reform and legal politics generally.

This logic manifested more in the personnel of the ILI and the Bar Association of India than the Bar Council; as Krishnan notes, the leaders of the Bar Council of India (BCI) in the 1960s ‘were not from the elite section of Indian society nor were most of them upper castes’.Footnote ¹¹⁰ This derived in part from the distinction in roles between the Bar Council and the Bar Association of India. While the BCI was a statutory body with a relatively small ambit, limited mainly to the management of legal education and professional discipline, the Bar Association was imagined with a much larger scope. Legal elites like Setalvad promoted the Bar Association, unlike the BCI, as a platform on which the gentlemen-lawyer-statesmen of the era could shape debates on public policy. The formation of a unified profession under the Advocates Act and the BCI provided a legitimate basis on which these lawyer-statesmen could claim to speak for all ‘Indian advocates’, but the autonomy of an unofficial organization like the Bar Association allowed them to speak on a much broader range of issues. Speaking to the Bombay State Lawyers’ Conference in 1952, for instance, Setalvad claimed that ‘statutory bodies will never be in a position to deal with the numerous questions which may concern either the profession itself or the profession in the discharge of its duties and functions to the public and the country generally’.Footnote ¹¹¹ When the BCI was finally formed in 1961, he suggested that:

In the early years, the board of the mouthpiece of the Bar Association of India, The Indian Advocate, was staffed primarily by lawyer-politicians, government lawyers, judges, and a handful of legal academics. Between 1961 and 1965, for instance, Setalvad served as Chairman and CK Daphtary as Editor, and members of the journal included HN Sanyal, the first chairman of the Bar Council of Delhi and later Solicitor-General of India; CB Agarwala, a Supreme Court Advocate and Secretary of the Indian Law Institute; NC Chatterjee, a former Calcutta High Court judge and Lok Sabha member; KM Munshi; the Yale-educated AT Markose; AN Sinha, a lawyer who had served in the Constituent Assembly and as the Deputy Chief Minister of Bihar; and ST Desai, the first Chief Justice of the Gujarat High Court.Footnote ¹¹³ The ILI and its journal were similarly composed, with figures like Chatterjee, Setalvad, Daphtary, Sanyal, Munshi, and Markose filling roles (ex-officio and otherwise) in both organizations.Footnote ¹¹⁴

By the early 1960s, the bar demonstrated that they could be effective in mobilizing to protect elite interests, when the Nehru government announced its intention to merge the positions of Law Minister and Attorney-General.Footnote ¹¹⁵ Forty-eight members of the Supreme Court Bar lodged a complaint with the government, and the legislation was later dropped.Footnote ¹¹⁶ On the other hand, the bar's relative failure to establish legal aid programs in the decades after independence suggests that when working in the interests of non-lawyers and non-elites, the bar was considerably less effective.Footnote ¹¹⁷

While the legal elite lost their near-absolute hegemony over Indian politics, they still retained a relatively eminent position in the politics of the post-colonial nation-state, especially during the first two decades after independence. One space in which legal professionals seemed to maintain their influence, especially in the early years of independence, was the international arena – where they were representatives of the nation in a very tangible sense. Legal elites were represented in relatively high numbers in the early stages of Indian diplomacy. MC Chagla and MC Setalvad, for instance, both argued on behalf of Indians in South Africa as part of Indian delegations to the United Nations in the late 1940s; legal professionals were also well-represented among India's ambassadors to Britain and the United States.

The early Cold War also saw a vast expansion in the international civil society of legal professionals, with the emergence of organizations like the International Commission of Jurists, the International Association of Democratic Lawyers, the International Bar Association, and the Asian-African Legal Consultative Committee.Footnote ¹¹⁸ The growth of international civil society was one of the reasons cited for the creation of an All-India Bar. After attending an international meeting of lawyers in Australia in 1951, MC Setalvad addressed a lawyers’ conference in Madras, in which he floated the idea of holding a similar meeting in India. He stipulated, however, that ‘such an assemblage would be possible only if there were functioning in India a body representative of all the country’.Footnote ¹¹⁹ Similarly, the Gold Medal-winning paper of the previous year's conference had emphasized that ‘without a United Indian Bar as such we cannot have our representatives on International Lawyers’ conferences. The Indian Bar Council Act must be so amended as to recognize only one Bar for the whole of India’.Footnote ¹²⁰ This notion, and the activities of Setalvad, Chagla, and others on the international stage, reinforce the suggestion that the formation of national institutions for the bar were partially intended by the elite to formalize the existence of a national legal elite – the type of lawyer who could represent the legal profession to the Indian body politic, and the Indian legal profession on the world stage.

At this point, suffice to say that neither the legal profession as a whole nor their elite members underwent a complete transformation in the period following independence. In many ways, elite lawyers remained entrenched in a professional ideology that emerged during the colonial period. After independence, elite lawyers moved to cohere their organization with the nation-state – a political form, many historians would note, that emerged out of the colonial experience. My aim here is not, therefore, to claim that lawyers, elite or otherwise, have ‘decolonized’ the profession in any meaningful sense of the word. Even if we return to the opening metaphor of advocates’ robes, a brief walk around the Fort neighbourhood of Mumbai, adjacent to the High Court, could demonstrate that lawyers’ attire even today adheres in large measure to the British tradition. While bands are no longer required in some courts, they are often worn, and remain an important symbol of the profession – a fact that remains visible as a bumper sticker on many advocates’ cars. My point, however, is that the advent of independence shaped the discursive and professional strategies of elite lawyers in ways that corresponded to both the political and economic changes of the post-colonial era, and that independence was a reflexive moment that provided the impetus for this shift. While the previous Part examined this process through the more political notion of ‘service to the nation,’ the following section will consider the role of public law, and particularly an emergent form of market governance – administrative law – in the discursive strategy of legal elites.

V. PUBLIC LAW AND THE POST-COLONIAL LEGAL ELITE

If there was relative agreement about the national orientation of the post-colonial lawyer, the specific role of that lawyer was a matter of more contention. For many elites, like Jahagirdar and Munshi, the role of the new national lawyer was to be a watchdog, ever-vigilant against the excesses of the administrative state. Others, especially judges and those closely allied with the Congress government, pleaded with lawyers to take a more forgiving view of the expanding state. Spaeth and HCL Merillat, for instance, recounted that GN Joshi, the noted private lawyer and member of the Law Commission, had in one of their meetings ‘implied that the courts should lean over backward to find constitutional what the government wants to do’.Footnote ¹²¹

Another point of contention was whether national lawyers should advise on the direction of policy itself, or merely serve as advisors on the legality of proposed measures. As chairman of the ILI, for instance, KM Munshi hoped that the Institute would give opinions on legislation, with Merillat imputing his ambitions to be largely in the service of conservative efforts against the expanding government.Footnote ¹²² Justice Pal, however, cautioned that for an organization of lawyers to ‘suggest what “changes” may “in themselves” be desirable is to pass from the sphere of the mere lawyer to that of the economist, the social reformer and the politician’.Footnote ¹²³

In the context of these growing politico-legal tensions, elite lawyers found themselves trying to execute a balancing act, not dissimilar to the one described by Kantorowicz in reference to notaries in medieval Europe and adopted by Dezalay and Garth in their work on elite lawyers in the twentieth century, namely, ‘the double agency of the lawyers serving strong rulers at the same time as they moderate them’.Footnote ¹²⁴ This Part argues that administrative law provided an arena where elite lawyers could enhance their own prestige and power through the burgeoning administrative state while simultaneously laying credible claim to the idea that they were moderators of state power and, as such, guardians of democracy and the rule of law. Moreover, the investment by elite lawyers in administrative law – perhaps the most visible representation of the state's role in constituting the market through economic governance – demonstrates the importance of considering professional ideology and discourse in post-colonial India through the analytical nexus of markets and politics proposed by Dezalay and Garth.

Lord Hewart remarked in The New Despotism that ‘Between the “Rule of Law” and what is called “administrative law” … there is the sharpest possible contrast. One is substantially the opposite of the other’.Footnote ¹²⁵ Some Indian lawyers cited Hewart and AV Dicey, the traditional British pillars of the notion of the ‘rule of law’ in conference papers and speeches to rail against the increasing machinery of the administrative state.Footnote ¹²⁶ Conversely, however, Rohit De has argued that the claims of ordinary Indians through administrative law opened the pathway for judicial contestation of administrative action – what he calls ‘the hallmark of a rule-of-law state’.Footnote ¹²⁷ Accordingly, while the discourse of the rule of law permeated debates over law and the legal profession in the post-independence period, its exact meaning seemed to remain elusive to all. As the Ford Foundation representatives Spaeth and Merillat put it in their 1956 report on legal education in India,

It was arguably the rule of law's amorphous quality that made it most appealing to lawyers. The various meanings of the concept of the rule of law allowed lawyers to manage, in a sense, the competing impulses that characterized their response to the post-colonial state.Footnote ¹²⁹ A pivot towards administrative law, and public law more generally, was the most prominent substantive shift in the attitudes of legal elites after independence. This was the case for a number of structural reasons – the enactment of the Constitution of India, the creation of the Supreme Court, and the rapidly expanding infrastructure of the post-colonial regulatory welfare state among the most prominent. But to legal elites, the fields of administrative and public law also provided a discursive ambivalence that was very similar to that offered by the ‘rule of law’. That is, by focusing their activities on administrative and public law, legal elites could buy into – or at least pay lip service to – the idea of ‘serving the nation’, whether they were aligned with the Congress government or not. To lawyers who were sympathetic to the Congress-led regulatory welfare state, the growth of administrative and public law was a natural consequence of the times and represented a field in which lawyers could align their interests with public service. To those with more conservative views, like Munshi, administrative and public law were the realms where lawyers would be most able to fight back against the encroachments of the administrative state.

Though the bench was perhaps generally more sympathetic to the growth of the administrative state, PB Gajendragadkar, a Bombay High Court judge and later the seventh Chief Justice of India, was among those who most loudly cautioned lawyers not to be overly zealous in their resistance to the expansion of the executive. In 1951, according to The Times of India, the judge:

Similarly, he later argued that ‘lawyers and judges … must regard themselves as social workers and law courts must become temples of social justice,’ even going so far as to suggest that ‘the profession of law like the profession of medicine must be socialised’.Footnote ¹³¹

To others, however, the field of public law was important precisely because it was where the growth of the administrative state could be halted, or at least moulded to lawyers’ interests. It would be useful here to consider the committee on the legal profession which convened at the New Delhi Congress of the International Commission of Jurists (ICJ) in 1959. The working paper that was proposed to the committee included a section that specified an obligation on the state to provide legal aid. One of the American delegates, in characteristic form, suggested that this obligation rested not on the State but on the ‘organized legal profession’.Footnote ¹³² KM Munshi, who was serving as a delegate for India, replied that ‘the conditions in America did not apply to other countries or at all events not to India’.Footnote ¹³³ Munshi went on to give the example of ‘legal aid required for land-owners whose land might be expropriated by legislation … or again of the defence of a person charged with drunkenness in a State which has strict prohibition’.Footnote ¹³⁴ ‘In such questions,’ he argued, ‘the State must under pressure of public opinion accept the obligation to pay for legal aid’.Footnote ¹³⁵

Munshi's position at the Delhi Congress is reflective of two fundamental features of the post-colonial Indian bar. First, as outlined above, the bar suffered from deep internal socio-economic divisions; there was a vast difference between the prestige and financial prosperity of lawyers who served in the District Munsif Courts and those of the High Court and Supreme Court bars. Thus, legal aid schemes were often proposed not just as a form of social service but as a form of social welfare for lawyers themselves.Footnote ¹³⁶ Second, the particular examples chosen by Munshi – land reform and prohibition – illustrate the post-colonial reorientation of the profession towards public and administrative law.

Munshi's estimation of the trajectory of Indian litigation was well-founded. Before independence, the field of public law barely existed; civil litigation between private parties dominated court dockets of the colonial period. Historians have noted, however, that while civil litigation rates declined after independence, litigation against the state increased rapidly.Footnote ¹³⁷ The American legal scholar Lawrence Ebb observed in 1958:

Much of this litigation was concerned with the issues suggested by Munshi – land tenure and prohibition laws – as well as, perhaps even more significantly, commodity controls.Footnote ¹³⁹ Furthermore, as Rohit De notes, administrative law in post-colonial India was primarily generated by public case law rather than legislative or bureaucratic action.Footnote ¹⁴⁰ This meant that lawyers could play a significant role in the actual production of administrative law as well as its implementation. As noted above, Baxi has also pointed out the considerable economic profit that administrative law has provided lawyers in the post-colonial era.Footnote ¹⁴¹

Munshi was among the co-founders of the ILI, a research institution established in Delhi in 1956 with funding from the Ford Foundation. The Institute was created in the midst of a number of calls from within and outside the bar to improve the quality of legal education and legal scholarship.Footnote ¹⁴² Attorney-General Setalvad emphasized that the ILI should remain aloof from the professional interests of lawyers. At the 1959 meeting of the ILI's All India Law Conference, Setalvad cautioned the Institute not to take up the issue of an All-India Bar Association, which appeared to him to be ‘too far removed’ from the purpose of the Institute, that is, ‘the cultivation of the science of law and the promotion of advanced studies and research in it and in its administration’.Footnote ¹⁴³ His suggestion to the ILI is noteworthy because it reflects the extent to which the legal profession was itself moulded to the post-colonial state's politics of science. The ILI was to be an institute for the ‘science of law,’ which reflected broader calls from those hoping to reform legal education for the academy to treat law as a social science.Footnote ¹⁴⁴

Most of the Institute's research production was concerned with public, and particularly administrative, law.Footnote ¹⁴⁵ In the forward to the first edition of the Journal of the Indian Law Institute, for instance, the Chief Justice of India wrote:

The interface between the Ford Foundation and the ILI also reflected a broader shift among Indian lawyers’ international interlocutors towards the United States. Describing the ILI's first research program, for instance, Rajeev Dhavan notes, ‘The concerns of American public law in the 1950s are reflected in the pages of this program. But these were also the major concerns of practicing lawyers’.Footnote ¹⁴⁷ With the establishment of the Constitution of India and the administrative state, India's legal system began to look more like the American system than before, and lawyers partially shifted their attention from Britain to the United States. This is not to imply, though, that British jurisprudence did not continue to play a major role (on balance, Dhavan notes, ‘Indian public law remedies have been interpreted in the light of English rather than American jurisprudence’),Footnote ¹⁴⁸ or that the Indian development of administrative law lacked originality – on the contrary, the judicial development of Indian administrative law is among the Indian legal system's most distinctive features.Footnote ¹⁴⁹ But India's adoption of a written constitution and the United States’ efforts to project itself as the major global power after the Second World War put US and Indian lawyers in frequent contact during the Cold War.

As De has noted, there is a temptation to compare the legal politics of the post-colonial moment in India to that of the American New Deal in the 1930s.Footnote ¹⁵⁰ Indeed, there are many obvious parallels – the growth of the administrative state and the accompanying drive to find alternative forums of lawyer-free dispute resolution, the simultaneous collaring of lawyers’ power with the expansion of opportunities for litigating against the state (and thus of legal practice), and the remaking of the legal profession in the name of socio-legal science.Footnote ¹⁵¹ However, there are some crucial differences between the American and the Indian cases. First, as De has pointed out, ‘colonial India had a limited history of judicial intervention,’ and the emergence of judicial review of administrative action thus represented a greater departure from the past.Footnote ¹⁵² Second, the politics of legal elites in post-colonial India were perhaps even more tied to the trajectory of the post-colonial nation-state. American lawyers often justified their opposition to New Deal legislation in terms of the ‘public good’.Footnote ¹⁵³ However, as the previous section outlined, the post-colonial moment in India perhaps saw a larger shift in elite lawyers’ discursive strategies, in the transition from the colonial to the post-colonial (nation-state) legal order.