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Excerpts from interview With anupam kher

Most of us know Anupam Kher as an actor par excellence. Mr. Kher is renowned for his versatile acting, both in the world of theatre and films and his stage is truly the whole world. What many of us may not know is his love and commitment to the profession of acting that has culminated in starting an acting school called ‘ACTOR PREPARES’. The school, founded in 2005, now operates in Mumbai, Chandigarh, Chennai and the UK with a mission to prepare competent and professionally committed actors, skilled in every aspect of an actor’s art and craft – physical, mental and emotional. It lays the foundation for a self-fulfilling and meaningful career as a performer.

On a warm Monday afternoon of June 11, 2012, we (Ameet Patel and Nandita Parekh) had the rare opportunity to meet with Anupam Kher to understand from him the profession of acting, the commitment required, the opportunities and challenges and the future of the profession. We share with you, his thoughts, as communicated to us . . . . . .

Unfortunately, we cannot share with you the eloquence with which he dealt with each question and the warmth with which he received us in his ever-busy schedule.

BCAJ – Is ‘performing arts’ just an art or a profession?

Anupam Kher (AK) – To me, performing arts, be it dancing, singing, acting – is a profes-sion. Art is an expression of one’s emotions, one’s feelings and to that end, everyone is an artist. All of us have drawn pictures as children, but that does not make any of us professional artists. Similarly, most people will have an ability to dance or sing or even act – but that does not make them professional performers. One of the differences is that a professional artist shares his work or his art with others, and pursues it as the main purpose of his life. For a professional artist his art is not just an expression of his emotions, but a driving force of his life, a source of livelihood combined with a compelling need to share. To this end, I am of the view that performing arts in general and acting in particular is definitely a profession that needs specialised skills, training and orientation.

 BCAJ As I understand, the acting school founded by you – ‘Actor Prepares’ is committed to helping talented individuals become professional actors. How much of the acting profession as you see around you has gone through some professional training? And is it very different in other countries in Europe or the USA?

AK -We are a young country; we got our independence in 1947. Before that for 200 years we were ruled by the British and before that by the Mughals. Yet, if you see, art in its various forms is an integral part of our culture and the early architecture – the carving of Ajanta, the miniature paintings . . . . all depict scenes of dancing, singing and other forms of performing arts. Each state has its own folk art and thus, we are a culturally rich country in terms of various forms of performing arts that have been handed down from earlier eras. As a country, we have given to the world the earliest available book on acting and stage craft called the ‘Natya Shastra’, written somewhere between 200 BC and 200 AD. In the early periods after independence, the country had many priorities – agricultural reforms, industrial reforms, poverty eradication, education and so on – acting and performing arts were clearly not a national priority. On the other hand, the people of the country were hungry for entertainment and were ready to lap up anything that was given to them as ‘entertainment’. The audience was not discerning, and hence, we have a situation that many of the movies made in the early post-independence era, we may enjoy today due to nostalgic reasons, but find that the acting skills were often non-existent. In these last 60 odd years, there must be over 20,000 actors who have appeared in our films. How many are remembered for their acting skills? Hardly 10-12, a number we can count on our fingertips. This was mainly because cinema was the primary source of entertainment; the only other option being ‘khetiwadi’ programmes on black and white TV or a once a week show such as ‘Chhayageet’. Watching a movie every weekend was almost a religion for seekers of entertainment during this skewed demand-supply situation. In such a situation, most actors did not have any formal training – professionally trained actors were few and far in between, I being one of them. Interestingly, performing artists in the music and dance space always went through rigorous training, primarily because of the classical forms and schools of music and dance . . . . Or perhaps because it was easier for the audience, however undemanding, to distinguish the good from the bad in these art forms. Today, the scenario has dramatically changed. With globalisation, people in India have a wide choice in the area of entertainment, from multiplexes to multitude of TV channels and live performances by world-renowned artists. So, the person who used to sit at the edge of the seat and watch a movie, today sits back in his chair and says “Okay, let me see what you have!” The audience today is discerning and demanding and that has created a need for professionalism in the performing arts. The ‘fluke’ artists will no longer hold centre stage – the future clearly belongs to actors who are not only trained to be good actors, but are also professional and disciplined in their conduct.

BCAJ -What are the macro changes that are likely to impact the profession of acting?

AK It is only 8-9 years back that cinema was given the status of ‘industry’ by the Government of India. Till that time, the Government did not even recognise cinema as an industry. With this recognition, there is a sea change in the way the movie industry is viewed. The access to commercial financing, the corporatisation within the cinema industry, the international platform for screening Indian movies – all this has led to professionalism all around. This includes the technology used, the distribution systems, the pricing and also, the acting. Otherwise, till recently, anyone with a trace of talent believed that ‘I too can act’. And, perhaps that is somewhat true – because I believe that anyone who can lie, can act; for lying is the first form of acting. So, most of us can act!

BCAJ -On that note, we would like to know how do you deal with situations where you are required to act in a role or propagate a message that you don’t personally subscribe to. Does this create a conflict in your mind? And if so, how do you deal with it?

AK Acting always requires you to portray yourself as a person you are not. It is my job as an actor to represent the character that I am required to portray. When I am Dinanath or Asgar Ali in a movie, that is not who I am. Anupam Kher the actor is not the same as Anupam Kher the person. When I fight against corruption and go on stage with Anna Hazare – that is me as a person. Thus, an actor will play roles that are different from what he stands for, what he may be as a person – and, in my mind, there is no conflict in this respect. Acting is part of my life, it is not my life. (For us, at BCAS, Anupam Kher who voluntarily and readily agreed to speak to demotivated CA students after a very dismal examination result and helped them regain their self confidence – is Anupam Kher, the person!)

BCAJ -An actor has a great influence on the audience and to that end a greater social responsibility. In that light, does it matter what kind of roles you choose to do?

AK – A movie or a play is entertainment, not education – it is not good, not bad, just entertainment. The meaning that a viewer derives from the movie is his prerogative. Also, an anti- hero or a villain is required to show the contrast. A ‘Raam’ is viewed in comparison to a ‘Raavan’; without ‘Raavan’, ‘Raam’ has limited significance. I do not think that people judge an actor by the roles he plays. The well-known villains of the Indian film industry are some of the best individuals that I have come across and I believe they are well respected by society. I have played a diverse set of roles and not restricted myself to the role of a hero or a villain or a comedian. There are nine emotions and as an actor it is important for me to express a variety of emotions – for that it is important to do different roles.

BCAJ – Do you think that there is adequate mentoring in your profession for the newcomers that helps them to clearly understand the distinction between their real life and their reel life?

AK – While acting is a profession, cinema is an industry. It is for each actor to determine his personal philosophy on how he wants to treat his reel life and real life – there is no reason for any mentoring in that respect. A profession requires training – and with that training how you pursue your profession, whose guidance you seek and who you choose as your role models is your personal choice.

BCAJ – Actors have a capacity to create a significant public influence and opinion. The profession of acting trains you to communicate very effectively with your audience and hence, gives you an ability to reach out to a vast audience effectively. But, on the other hand, the private acts of a well-known personality are also minutely examined by the public. Do you think there is a need for actors to conduct them-selves any differently in their private lives?

AK – Well, as a chartered accountant you too have an influence on the public, and so does a leading doctor or a lawyer. It is for each person to decide how he wants to conduct himself in his personal life, irrespective of whether or not he has the ability to influence others. As actors, perhaps we are more conscious of the image that we create of ourselves – but that does not make us any different from others. We all have to conduct ourselves in a manner that suits our conscience, our value system. Also, at a different level, no one forces you to watch a movie – it is a choice that you have. So, the kind of movies you choose to watch is entirely your choice.

BCAJ – Earlier you mentioned that a professional actor needs to be disciplined. We as outsiders often hear that movies get delayed due to the inability of the actors to live up to their committed schedules. Any views?
 

AK – I thought we were to talk about performing arts as a profession – this is a question on individual behavioural traits. However, when you hear that an actor did not meet his schedule there could be a variety of reasons, like the payment that was committed to him is not made, that a number of times when he has blocked his time for a producer there have been last-minute cancellations from the producer’s side and so on. I do not believe that without a valid reason or a serious constraint any actor would not adhere to his commitment, as he too is interested in a timely release of the movie. Further, the time discipline that was not very important till recently is now becoming of paramount importance due to corporatisation of the movie industry and the manner in which it is financed. The word of mouth agreement has been replaced by crisply worded contracts that run into 20-30 pages and there are consequences of not meeting the commitments made. Internationally this has been the practice for a long period now, but in India, we are seeing this now.

BCAJ – Is there adequate opportunity for a new-comer who wants to enter the profession of acting to learn or to acquire structured training? We know that you have founded a school of acting, but are there adequate such institutions? Is there room for consolidation of training, larger institutes and accreditation?

There are many acting schools and many of them are fraud institutions. We are masters at replicating and selling something that has no value. But ultimately the institutes that will draw students are the ones that provide honest, sincere training and make a long-term commitment to training. The product that comes out of the school is the strongest evidence of the quality of training. Also, today’s newcomers have an ability to learn quickly and to gather knowledge and training from a variety of sources. So, the courses that required 3-4 years earlier can now be taught in months. This Internet and Google age has made information easy to seek but has taken away the sense of wonder from today’s generation.

An acting school is not just about teaching the acting skills. It is education and all education teaches primarily one thing – the ability to distinguish the right from the wrong and the good from the bad. Thus, a good acting school also helps an actor make better decisions and choices. Also, training is not something that happens at the beginning of your professional career – it is something you go back to every time you realise the need for further enhancement to your skills. It is an ongoing process to an actor’s career and very often, the persons who seek training have already acted in plays, in TV shows/serials and movies.

I believe that every individual, whether an actor or not, gets at least one chance that will materially change his life – if he is able to rise up to that chance and seize the opportunity when it is knocking at his door, he will have a different future than when he lets that one chance pass.

BCAJ –   What is the future of the profession?

AK – I firmly believe that this is the golden era for professional actors. The audience is educated and has an appetite for a wide range of movies. Earlier, the movies were all made on a standard theme and dialogues such as ‘maine mere haathonse kheer banaayi hai’ ‘kaash tere pita aaj jinda hote’ became so clichéd and predictable. Today, we have movies like Shanghai, Kahaani and A Wednesday that appeal to the audience. The audience is intelligent and appreciates good cinema, good acting. Further, globalisation has also had a big impact on the acting profession. Many Indian movies are screened across the globe and that has created, for some actors, opportunities to work in international films with very credible directors and production houses. This is definitely the most exciting period for an actor who wants to make a mark. But, it is also a period where an actor will have to work hard and display a high level of sincerity and commitment to the profession.

As we ended our meeting, we realised the common string that runs between the acting profession and our profession. A professional actor benefits from training, just as a good articleship makes a world of a difference to a chartered accountant. Further, training imparted at the beginning of the career is not enough – there is a need for ‘Continuing Professional Education’. The times have changed and globalisation has had an impact on the profession of acting, just as it has had on the profession of chartered accountancy. For some, the world has opened up, for others there is a dismal future – for it is in these time that the destiny of a professional, be it a chartered accountant or an actor, will be defined by his training, his hard work, his commitment and most of all, his ability to recognise and seize that one chance that offers him a very different future!

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The word ‘architecture’ always and immediately brings to mind subjects like real estate, home, high-rises, heritage and monuments. However this is sadly a very limited view on architecture, and one could also say a misguided understanding of what ‘architecture’ means. As an extension to this limited and partly faulty understanding of ‘architecture’, the architect remains to be a technician of sorts — someone who has technical knowledge of certain subjects and who uses that to the best of his capacity to ‘make buildings’. In a more romantic understanding the architect tends to be the maverick artist who has put together marvels and embodiments of beauty in brick and stone or concrete and steel. In more contemporary times, where real estate is the only logic to urban development and financial graphs have crazy rises and drastic falls, architect remains only a service-provider in most cases. He, and sometimes she, is expected to make sure the size of the kitchen or work-station is correct to an optimum, the light falls in the right direction, the water drains well, there is some fancy play of colours and materials which can be discussed as the creative quotient of the project and finally a building should ‘look good and sassy’ in advertisements for the people on the street. The architect’s job is done, he can move to the next project and reproduce the same set of correct applications, with a change of some ‘creative’ inputs, and buildings can be rubber-stamped one after the other, still looking different as every exterior is made just to do that — look different!

Having said this, one can also look at the use of the word ‘architect’ — Jawaharlal Nehru is referred to as the ‘architect’ of modern India, or Dr. B. R. Ambedkar is the ‘architect’ of India’s Constitution, or Mahatma Gandhi is the ‘architect’ of India’s struggle to freedom from British rule. In all these cases, the term ‘architect’ is no technician, is no maverick artist, is no façade designer; the architect, clearly in all these instances, is someone who has shouldered responsibility and has been the shape-giver to important ideas — modern nation, constitution and a movement. The term is not engineer of modern India or doctor of the freedom movement, but ‘architect’ is the idea that is used. So then what defines an architect? What job does an architect do? What role does he perform in society? And the answer to all these will depend on — What is architecture?

Architecture is surely a profession at one point, with the architect a trained and licensed professional who is expected to provide a certain set of services to the best of his capacity. However, architecture is also a discipline — it is a subject with its own history, its theory and its ideas on issues of space, beauty, cultural interventions, role within a social set-up, cultural implications, etc. Architecture deals with making of buildings, but it is much beyond the building — architecture is a broad field of ideas and practices. Architecture has always had historians and theorists, critics and writers who discuss architecture and challenge the contemporary practices of their times. So the realm of ideas and thoughts, theories and critical propositions also makes up the world of architecture. Just as the knowledge of materials and plumbing is important to architecture, so is the awareness of issues and theories that challenge the field is very important. One can say, that from nuts and bolts to the realm of dreams, architecture has to deal with it all.

 Architects also work within their own peer pressures. The architect trained in a particular set of ideas and principles of design, is also living and working in particular contexts. Contexts are made up of cultural images, political inclinations, social relationships that you may or may not agree with. These contexts and the architect’s training generates influences on the design board where decisions are judged against popular imaginations, economic constraints, hyped practices like vaastu, personal convictions or lack of it, and desires or aspirations of clients. The studio of the architect is a complex combination of strains and stresses, desires and convictions. Who is the architect addressing his/her questions and designs to – the client, the user (who she/he may never meet), the fraternity, the critic, the economic demands, space crunch, real estate wars, technicians that supply plumbing and electricity? As much as this dilemma is a reality of conditions, and as much as we realise how architecture stretches much beyond making a ‘good building’, the question is not simply a technical issue of how many questions and demands an architect can answer satisfactorily. The point that needs investigation is — what is the idea of architecture that we as thinkers and professionals in the field of architecture subscribe to. Do we understand our responsibility towards ‘architecture’ itself, to begin with?

Architecture is a realm where imaginations and values will have to be resolved. How do universal values of humanity translate into architectural values and imaginations? To acknowledge that architecture operates as the physical fabric within which our homes, neighbourhoods and cities are defined is very crucial. This physical fabric constructs the way we imagine our world, and this physical fabric is inherently visual and material — we see it and we feel it. The visual as well as the material is always a coded logic — if the Mughals used white marble it was to imagine the sense of beauty within the sense of grandeur that political and pristine, making the political an aspect of technology and geometry; if the new stock of corporate towers feel the need to shine in the hot sun as they shoot to crazy heights, tallness and brightness mean something — aspirations to unashamedly compete, rather make competition a value and loudness of domination a virtue is what this architecture signals. Is then at times the patron, the developer, the client the real designer, the real architect? Is then the architect simply a handmaiden to the forces that make his profession possible? But then can the architect simply moan his status in the chain and continue being the handmaiden? Does architecture have the power to reject and change that which is given and practised in the world? Or does architecture simply mirror the culture and society that produces it?

Architecture is a condition much more than a building here and a building there. Architecture, especially with the world taking an urban turn is the site where ideas and cultures are shaped and human societies are constantly shaping and re-shaping. Architecture is no stage for the drama of life, but a constant game-player in this scenario. Architecture, as a dynamic set of ideas and elements, is part of the narrative that we call culture and socio-political world. Whether new buildings are built, or some old ones are conserved, and some others are lost in time, or whether housing in the avatar of slums is demolished — architecture is constantly shaping and redefining itself. One of the most crucial aspects of architecture — Space, is one of the most cov-eted and discussed subject. Space of the family or the space in your colony or mohalla, or the space from where hawkers are thrown out in the name of discipline or beautification, or the space of mills converted to tall apartment blocks — are the versions of space that architecture choreographs and gives it a logic and a language. The architect can be the handmaiden and provide an architectural language that feeds into the popular idea of life and the world provided today by globalization and capitalism, else that architect can use his skills and language of architecture to challenge the dominant ideas. With the design of better homes, flush with appliances and its interiors designed with high-end materials, does family life automatically become better and more affectionate? The idea of architecture constantly weaves through all these situations and events; then is architecture a physical structure any longer or is it just about events and reactions? The sociality of life, as much as it is embedded in architecture, also seems disjointed from the generally and commonly appreciated properties of architecture.

Does the idea of architecture — a discursive field of knowledge on the one hand, a profession on the other — accommodate the notion of ethics? Ethics here is not an issue of morality, but one of integrated principles and convictions guided by vision and a critical understanding of the world and life. Principles are not meant to be stringent and unchanging, but they are guidelines that can be adequately and appropriately changed, redefined and interrogated. Convictions need not be misunderstood as rigid belief, but convictions is a tool box of imaginations and critical argumentation that is built up through a keen observation of life and culture, and a constantly reworked understanding of one’s own field. Visions are not dogmatic and cast-in-stone diagrams, but they should be projections of ideas that can generate a dialogue and argument, that can make us see the world with fresh eyes but not forget that we come from a past that is loaded with dreams and nightmares. Ethics of architecture help us build arguments and methods towards a world, a city that is other wise a chaotic mix of loud voices — demolitions, developments, change, preserve, conserve, beautify. These words for most of us are only images and not concepts that mean certain real-life situations. These words will become valuable ideas to be discussed and debated when a sense of ethics is the basis for their existence.

Architectural ethics are not about which colour looks good, or which building has a fancier façade than the other, but architectural ethics is a way to our understanding of what world and society do we wish to live in. Can we talk of sustainable environments and economies while we view the hawker on the roadside only as a nuisance? Hawking is an essentially urban condition, that produces a set of urban values and conditions, which are also part of existing economic networks. But hawking is also an understanding of values in space, the architecture of reuse and repair. Are gated communities with taller and taller high-rises packed behind tall compound walls and gates the future of living? Have we not enjoyed mohallas and padas where sharing spaces with neighbours and shopkeepers was a way family and city life developed? A sense of architectural ethics will give us ways in which we can innovatively address some old issues. To question the idea of architecture is central to establishing relationships in a society and understanding them. No human life, and no human social or cultural group lives in isolation — with our different eating habits and different religious preferences, we still are a species that needs exchange and interaction with others who are not like yourself to survive a wholesome life.

Architectural ethics of sharing space, understanding quotients of privacy and openness is very important to a healthy social world-space.

Whether we look at questions of women and social space, or issues of caste and cultural space, or theatre and the traditions of space and costume, or whether we simply evaluate how we perceive shared and public space like a railway station in Mumbai or a park or a maidan, we will realise that architecture deals with aspects of value and ethics as much as it deals with scale, colour and materials. The architect is the builder, he is the thinker, he is also often a philosopher — but in the world of today this bleeding of different roles is also the cause for dilemmas and confusions. But these dilemmas need to be occasions for asking questions and thinking — where new meanings for architecture could be discovered, debated and argued. The new meanings will provide new occasions and new tools for the architect to work with. As long as a sense of ethics and values in architecture is understood, the architect can remodel his profession and his field, with growing understanding and an evolving vision.

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The accountancy profession and the legal profession are intertwined. The services rendered by these professions overlap to a large extent. Moreover, when a lawyer is involved in a major corporate takeover transaction, he depends on the financial structure evolved by a chartered accountant and when a chartered accountant is considering and advising on a major financial transaction he would undoubtedly need help and assistance from a lawyer to ensure compliance of legal requirements in the transaction. Shri Gopaldas P. Kapadia, the first President of the Institute of Chartered Accountants of India, who is recognised as the father of the accountancy profession in India always maintained that the accountancy profession and the legal profession are sister professions. He even expressed a dream that at some point of time the two professions would merge under a common umbrella.

In the context of the changes in the business pattern in India during the last two decades both the professions are required to work shoulder to shoulder acting as supplement to the services rendered by each other.

Over the past few years, we have witnessed unprecedented economic advancement and growth, which has resulted in the globalisation of the world’s economies and has opened up the world’s economies. This wave of globalisation and economic progress has resulted in huge opportunities and potential for businesses to expand their footprint all over the world. This, coupled with the rapid growth of the Internet has resulted in a truly global market place. It has literally resulted in a ‘world without borders’. India has been at the centre stage of this economic revolution over the past decade. Over the years, India has witnessed a large amount of both inbound and outbound foreign investments. Today, leading companies from all over the world are either in India, or are queuing up to enter. Similarly, numerous Indian businesses have acquired or are acquiring businesses outside the country. Over and above this, with the inflow and outflow of investments, businesses have begun to scale up and have today reached enormous sizes, scales that could not have ever been imagined a few years ago. All of this has resulted in a huge demand for professional services. The changing economy has resulted in a complete change in the operating dynamics of professionals. I propose to deal with some of the common issues and challenges faced by law and accountancy professional firms in today’s changing times.

The role of a professional has evolved dramatically over the past few years and is far different from what it used to be a few years ago. The increase in demand for professional services has resulted in a very large growth in the professional service space. Every day, there are new entrants in the sector, resulting in intense competition. With the increasing demand of professional services, professionals are facing new challenges and new burdens every day.

Earlier, whilst any professional had to contend with a certain limited number of issues, the number of issues faced by them today have increased greatly. This can be attributed to various factors. With economic progress, business transactions are becoming more and more complex by the day. Businesses are becoming more competitive and focussed on factors like growth, performance, etc. Further, the ever-changing economic landscape and globalisation have resulted in new and complex legislations and regulations being introduced by lawmakers.

As a result, the need for professional advice on business transactions or on legislations has become ever increasing. This has therefore resulted in a great demand for services of professionals and more so for accountants and lawyers. This great demand for the services of professionals has resulted in an unprecedented number of new entrants into both the professions, which has resulted in an increase in competition amongst professionals themselves. Whilst, the entry of an increasing number of professionals in any field is always welcome, it has triggered intense competition amongst rival firms. It may be argued that with the present growth in the economy, there is enough space for a large number of new upcoming professionals to enter into the professions and grow. But at the same time, it is interesting to note that the increasing competition has resulted in various issues, which professionals may not have faced earlier.

Some of the major issues faced by a professional (whether a lawyer or a chartered accountant), in carrying on his profession today are:

(i) Professional ethics

(ii) Professional responsibility;

(iii) Professional liability;

(iv) Building and retaining teams;

(v) Keeping abreast with the latest updates;

(vi) Advertising/promoting services;

 Let us now examine these issues in detail.

(i) Professional ethics

Both the legal and the accountancy professions have their own rules of professional ethics. The Chartered Accountants Act, 1949 and the Regulations made thereunder prescribe certain rules in this behalf. Similarly, the Advocates Act, 1961 and the Bar Council Regulations govern the legal profession. Professional ethics are codes of practice that have been laid down by bodies governing the profession to ensure that the highest standards of integrity and professionalism are maintained in the profession. Each professional organisation must ensure that the ethics and codes laid down in that profession are followed. A professional is a person who is specially trained and possesses specialised skills and knowledge. He must, in providing his services, adhere to the highest standards of ethics to ensure that not only the interests of his client are safeguarded but also that standard of his profession are maintained. Some of the virtues that fall within the ambit of professional ethics are virtues like honesty, integrity, transparency, etc. Of late, various incidents have come to light where leading professionals from large professional service firms have been caught committing certain acts in the course of their professional duties which go against the very basic canon of their profession and against the basic virtues of professional ethics. At this juncture, one would question as to why would a professional who is associated with a multi-national firm at a very senior level, become involved in such acts. The answer to that question is quite simple. With increasing competition amongst professionals, clients often try to pressurise a professional to commit acts or give them advice as per their needs. The professional, in the fear of losing the business of the client, is likely to buckle down under the pressure of the client and do whatever is required of him to retain such a client. This sort of pressure often leads to professionals committing various acts which are against the very basic guidelines/codes that are governing them. Though it is important in today’s time to retain clients and expand, a professional must never forget his duties and must always carry out the same within the prescribed boundaries.

ii) Professional responsibility

Similarly, professionals have a responsibility to their clients. They must act in a responsible manner and must ensure that there is no breach of fiduciary duties on their part whilst dealing with clients. In a large firm, where there are a large number of partners and senior associates, it is possible that the firm may, unknowingly take up an assignments, which is conflicting in interest with some other assignment being handled by the firm. Such a situation must be avoided and the firm must take steps and build systems to ensure that there is no conflict of interest between the firms’ clients. Another important aspect that a firm must safeguard is confidentiality of clients’ information. A firm must ensure that the clients information that has been provided to it must be kept confidential and that the same should not ever be revealed by any person, save and except in the manner prescribed under law or authorised by the client.

(iii) Professional liability

A professional in exercising his duties and advising his clients, must always exercise due care and caution and ensure that he has fulfilled his duties to the best of his ability. A professional must ensure that he has considered and reviewed all possible scenarios before advising the client. Professionals, being experts in their respective fields, are liable to their clients for any act of negligence on their part. A client comes to a professional because a professional is an expert in the field and that he possesses specialised knowledge. At the same time, since a professional is an expert in his field, he must ensure that he takes greater care and caution when advising his client as compared to an ordinary person. A professional would thus be responsible to his client in the event that a client suffers and harm or prejudice as a result of any act of negligence on the part of the professional.

(iv) Building and retaining teams

With increasing competition amongst professionals today, a major challenge faced by firms is that of attracting and retaining the best manpower. Over the years, the number of persons entering various professions has greatly increased. This has resulted in a huge pool of manpower being made available to firms to choose from. Even then, there is an intense competition amongst firms to select the best talent that is available. Firms today invest huge amount of time, effort and money in training associates to ensure that they are able to offer best services to the clients. However, with increasing competition and increasing amount of work, there is always a dearth of good talent that is available at any time. Competing firms are always looking out for good talent. A firm must ensure that it retains good talent by not only offering good remuneration but by also providing a good working environment.

(v) Updated knowledge
As stated above, with the ever-changing economic climate and with new developments taking place practically on a daily basis, it is important for professionals to always keep themselves updated and abreast with all the latest developments in their fields. With the advent of technology, it has become relatively simple and easy for one to keep updated with the latest developments at all times. Referring to and using tools like the Internet, e-mail, news media, academic journals, etc., are helpful in ensuring that one is updated with the ever-changing situation in ones profession at all times.

(vi) Advertising

The increasing demand for professional services and the increase in the number of professionals offering such services has resulted in intense competition amongst rival professionals. In India, till date, both the legal and accountancy professions have restrictions on advertising, which by and large restrict professionals from advertising their services. Recently, Bar Council of India which governs the legal profession has allowed lawyer/law firms to set up websites but with limited information. Of late, we have also witnessed a large number of professional firms being associated with various events organised by various bodies, chambers, societies, etc. now whereby representatives of such firm make presentations/speak at such events. Another practice that is gaining quick popularity amongst professionals is of publishing articles/research papers/reports across various media like newspapers, journals, magazines and on the Internet.

From the above, we can see the number of common issues and challenges faced by both the professions in todays times. Whilst, the picture is rosy and there is great potential on the horizon for both the professions, the professions of lawyers and chartered accountants have largely benefited by the recent upturn of economy and increase of high-value business transactions. Both the professions have been working as complimentary to each other and as a result, the client gets the advantage of double expertise. Let us hope this sangam will get stronger day by day.

Before I end, I would like to refer to one recent trend which I consider to be against the interest of the clients and may even term it as dangerous. Some chartered accountant firms have been keeping lawyers on their role and try to render legal services to the clients including drafting of complicated documents while some law firms have recruited chartered accountants on their staff, with a view to extend the services to be offered to the clients. It is felt that the junior-level assistance availed in this way may not do proper justice to the clients and is even likely to affect the quality of the services needed in a particular case. It would be in the ultimate benefit of the clients if each profession sticks to its own expertise without trying to encroach upon the field of the other.

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The phone hacking scandal in the UK two years ago focused the world’s attention on media misconduct like rarely before. What was particularly shocking was that tabloid reporters hacked into and deleted the voice mail messages left by a missing 13-year-old girl, who was later found dead.

It triggered public outrage — understandably so — and led to the shutting down of Britain’s biggest Sunday paper, the arrests of the Prime Minister’s spokesman and several journalists and senior newspaper executives, the resignation of the country’s highest-ranking police officer, and the setting up of a public inquiry under Lord Justice Leveson.

A debate has raged since about whether the media should be subjected to greater regulation – not just in the UK, but in democracies around the world. Sections of the political class have, not surprisingly, supported the idea of stricter oversight and punishment.

There is often a thin line between regulation and control. In India, there have been periodic efforts at muzzling the media, most infamously during the Emergency. It is as much the public’s responsibility as it is the media’s to ensure that every such attempt is vigorously resisted. The media is meant to act as a watchdog; it has a duty to tell people things their governments don’t want them to know (barring genuinely sensitive information). This perforce casts it in an adversarial role.

The idea of democracy is predicated on freedom of the press (‘media’ and ‘press’ are used interchangeably here, and include print, broadcast and online). As the First Amendment of the US Constitution said, “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…” And while our own Constitution does not specifically refer to freedom of the press, it is implied in Article 19, which lists freedom of speech and expression as one of our fundamental rights. Various courts have over the years emphasised the centrality of freedom of the press to the democratic process.

Does that mean the media should not be held accountable for what it writes or broadcasts? Absolutely not.

Every industry and profession has a responsibility to its customers and clients. Just as an automobile manufacturer needs to answer for faulty brakes or a pharmaceutical company for substandard drugs or a CA firm for the quality of its audits, a newspaper or a TV channel must answer for inaccurate and irresponsible reporting.

Unlike say, a builder or a doctor, a journalist cannot directly cause a person’s death. But his incompetence or dishonesty can cause damage that some, especially the more righteous, might consider a fate worse than death – loss of reputation.

Yes, there are laws against defamation, slander and libel. While article 19(1)(a) guarantees free speech and expression, 19(2) specifies the grounds for “reasonable restrictions” on free speech (defamation, public order, incitement to an offence, etc).

But in practice, the media is protected, more by default than design, by the glacial speed at which things move through our judiciary. Most journalists know it takes years for a defamation case (like most other cases) to reach legal closure — unless the aggrieved party has the resources to hasten the process. By then the damage has been done. Punitive action, either in the form of compensation or an apology, a decade later is cold consolation for a person whose standing in society has been dented (although increasingly, it would appear that people don’t care).

There is also the Press Council of India, set up as a statutory body under a 1978 Act, to ensure freedom of the press and to hear complaints against newspapers. While Wikipedia describes it as an “extremely powerful body”, truth is, very few newspapers quake at the thought of being censured by the council.

A parliamentary standing committee recently submitted a report recommending either a single regulatory body for print and electronic media or a diarchy in which the Press Council has enhanced powers and there is a similar statutory body for the electronic media.

Such proposals have obviously not found great favour with the media, whose contention has always been: We don’t need outsiders to regulate us, we can do it ourselves.

There is reason to oppose external controls. What is the guarantee that the hidden hand of government will not seek to strangle a newspaper or channel that it considers inimical to its interests? Governments have been known to exert influence over institutions that are supposed to be completely independent. As it is, governments across the country routinely try to browbeat newspapers that run unfavourable stories by cutting off advertising — which amounts to abuse of power because it is taxpayers money they are using as leverage to block the people’s right to information. Many small and financially fragile papers, which depend on such advertising for survival, are often forced to fall in line.

Much of the credit for exposing corruption in high places must go to the media. It has acted, at least in some small way, as a check on governments, public officials and corporations from subverting the system.

But while the media is often quick to demand accountability from the executive and the legislature, who does it answer to? The obvious answer is: To the public in general and to its readers/viewers in particular.

As we all know, practice doesn’t always measure up to principle. Ministers and legislators can also seek refuge behind a similar defence by claiming, “We are elected by the people, and we answer to them. If they don’t like us, if they think we have lost the right to hold office, they can always vote us out.” But take a look at the scandals around us: Does it look like our politicians shiver with fear at the thought of their less-than-ethical practices inviting electoral backlash?

TV channels and newspapers like to claim that their viewers/readers have the freedom to switch out/unsubscribe, which would be bad for subscription and advertising revenue. So, if for nothing else, they’ll stay honest because it makes business sense.

There is some merit in this line of argument, but only up to a point. Corruption, whether at an individual or an institutional level, does not follow the laws of ethical business as they are taught in B-schools. When a journalist writes with mala fide intent, he is obviously not concerned about damaging reputations — of others, or his own.

One would like to believe that such dishonesty exists only on the fringes of established mainstream media, and that an overwhelming majority of us cannot be influenced to write in lieu of monetary or other favours. (We are leaving aside intellectual dishonesty, which is a separate subject by itself. Also, sponsored features or ‘advertorials’ do not fall under this category.)

So why do newspapers and TV channels still make so many mistakes, including some that can hurt people and their reputations? Much of it has to do with subject ignorance, lack of application (which is a polite way of saying ‘laziness’), inadequate fact-checking, and the rush to be first at any cost. A few unintentional, genuine mistakes are perhaps inevitable, even pardonable, given the tight deadlines newspapers and channels have to race against day in and night out — so long as those mistakes don’t end up hurting innocent people. And so long as we in media are prompt in acknowledging our mistakes.

The media’s challenge is to strike a delicate balance between being aggressive, sceptical and independent on one hand, and sensitive, decent and knowledgeable on the other. Combining so many attributes might seem like a tall order, but we need to hold ourselves to a higher standard. The paper I work for has taken a decision to play down news of school students committing suicide during exams and results. We are aware that other papers might choose to splash such ‘stories’ on front page, and we might look like we have missed them, but so be it. We believe it’s the right thing to do.

At the end of the day, we in the media need to do the right thing. This might sound simplistic, to the point of naivete. How can anyone expect a growing, fragmented, competitive industry that lies at the intersection of politics, business and a society in churn to develop the collective conscience to do the ‘right thing’? Surely, we’re expecting too much? Perhaps. But if an overwhelming majority of the media can learn to be fair and responsible, the law as it exists today is good enough to deal with a few rogue elements. Every industry has its seamy underbelly, but that cannot be a reason for any government to bring an AK-47 to a wrestling match.

If however the public comes to believe the media is incapable of managing its own house, we could be opening ourselves up to calls for tougher legislation and regulation. Recent developments in cricket should serve as a cautionary tale for all of us.

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Introduction Every profession has an objective and purpose for its origin and sustenance. Accounting profession is no exception. While the role and significance of the accounting profession keeps evolving to match with the changing expectations of the stakeholders, laws and regulations, the underlying philosophy remains constant. The commitment of the profession to the society is enshrined in the motto adopted by The Institute of Chartered Accountants of India (ICAI) from the Kathopanishad – “Ya esa suptesu jagarti” – “That person who is awake in those that sleep”. The accounting profession is the conscience keeper of the finance world as its members perform the accounting and auditing and assurance services. The profession is recognised as a partner in nation building as its members provide value added services to business enterprises in terms of planning, budgeting, funding, restructuring, strategising growth and expansion, cost optimisation so on and so forth.

Evolution 

Even before India became a Republic in 1950, the Gov-ernment of India enacted “The Chartered Accountants Act, 1949” and conferred the statutory and special recognition on the profession by chartering it and conferring autonomy on ICAI. This demonstrates the importance attributed to our profession by the Parliament and the need to regulate it with sound principles and standards. Since then, the profession has grown from strength to strength evolving its journey into a glorious history. The various milestones accomplished by its members reflect the astute wisdom acquired out of a sound learning process and robust practical training besides the recognition of our role given by the society. At the same time, we must acknowledge that autonomy comes with accountability and recognition is tagged on with responsibility. Assuming there are two professionals- one a member of our profession and another a non-member, with similar skills sets and knowledge, a client would prefer a member of our profession as there is a regulatory mechanism governing the profession and accountability in the case of a Chartered Accountant is better ensured than such a non-member. Accountability, therefore, is not a dis-advantage but an inherent strength of the profession.

In terms of membership strength, there has been phenomenal growth in the last one decade and consider-able number of members has been taking up employment in preference to public practice on account of enlarging opportunities in the industry. The following data demonstrates the shift in strength from public practice (COP) to employment (No COP) which also drives home the point that the profession is gaining more recognition in the in-house decision making and administration positions within the business segment. Instead of merely providing inputs for decision making, many of our members have attained positions whereby they are the decision makers for the business enterprise at the helm of affairs. There are many members who are CEOs and CFOs rendering yeomen service to the Industry segment of the Economy. The data also indicates that about 50% of them have entered the profession in the last one decade and therefore they all must be below the age of 35 years.

Scaling up with Quality

Out of the 1.2 billion population in India, only 2.17 lakh are qualified members of the profession. About a million students are pursuing the curriculum of our profession in various stages. Considering the fact that 47.5% of the 1.2 billion are youth below the age of 25 years, India has the demographic advantage of possessing substantial size of young population. Our profession can embrace good number of this segment in order to enable them to emerge as Chartered Accountants. This proposition may be fraught with two apprehensions namely, increase in number might lead to degeneration in standards and emergence of more professionals might lead to unemployment. Both these concerns do merit attention but can be effectively addressed by taking appropriate measures. We must ensure that quantity does not result in compromising of quality. The content of the curriculum, the examination and evalu-ation methodology and above all practical training and orientation should be constantly reviewed, monitored and implemented to match with the best expectations of the market. Further, the blending of technological skills with professional skills should be seamlessly and progressively done to equip the members to plunge into newer areas of services.

India has immense potential to emerge as a strong economic power being the third fastest growing economy next only to China and Indonesia. Although the present scenario is worrisome with GDP touching 4.8% growth in the fourth quarter of the last fiscal, our economy will bounce back soon to catch up with the desired 8% growth by 2015-16. Consequently, we should not have any inhibition to scale up with quality as otherwise persons with less competence and no accountability will strive to occupy the positions that would get generated with the growth of the economy. Further, our profession can contribute in a modest manner to the endeavour of reaping the demographic dividend by producing capable young finance professionals. India has the potential of emerging as the human resource hub for the rest of the world. There are already over 30,000 CAs settled abroad serving different economies. We must continue to produce professionals who are nurtured in India, but groomed for the world.

Knowledge Management and Innovation

The profession today stands on the threshold of dynamism and change. We need to be diligent in knowledge management and innovation. Any laxity on our part could be fatal. The government, the regulators, the society and the clients do expect the profession to take proactive measures for knowledge updating and skill upgradation. Both in the core areas of our practice such as assurance function as well as in the non-core areas such as consultancy/advisory functions, we need to be empowered consistently. Any inaction can create a void which will be filled by those outside our profession. John F Kennedy said that there are risks and costs to action but they are far less than the long range risks of comfortable inaction. We just cannot afford to be indifferent or ignorant of the developments around us. Practising the accountancy profession is like riding a bicycle and one does not fall off unless one stops pedalling. Learning is akin to pedalling. No other factor can inspire more confidence and faith of the stakeholders in our profession than the demonstrative quest for knowledge and competence gained out of it. The profession owes to the stakeholders an assur-ance that its members are the most competent and empowered lot to deliver services with quality. The profession can ill afford to be negligent on this aspect of the accountability.

Quality in service leads to excellence, which is a definite attribute that paves way for growth and development of the profession. However, there are limits to the excellence we can achieve on a narrow base. The profession needs to innovate and re-engineer itself to a new trajectory of divergence and efficiency. The profession needs to evolve new products, new services, new systems procedures and methodologies to maximise utility but minimise the cost. Excellence is like the summit of a pyramid, larger the base higher the summit. We should not spare any endeavour to broaden the base of the quality of our services with skills, standards and values and build the pyramid of excellence, the summit of which is unmatched by that of any other profession.

Capacity Building of Firms

It is common knowledge that Indian entrepreneurs are consolidating their businesses to grow big and face global competition. Multinationals are establishing subsidiaries of large size in India. Takeovers, mergers, amalgamations and collaborations are the order of the day. Professionals should also become conscious of this factor and gear up to restructure their firms, reorient their skills and expand their firm size. When an enterprise or a business group grows and the professional firm rendering service to it does not, the chances of replacement by a bigger firm cannot be ruled out.

On a closer look at the following data relating to the composition of the firms in our profession, it is not difficult to realise that most of them are small and medium practitioners (SMPs). Although there is commendable improvement in the growth and expansion of the firms over the last one decade, still we have a long way to go. To the growing Indian business enterprises, our profession is accountable to assure that our firms would measure up to the size that is required to ably cater to the array of services expected by them.

Independence and sanctity of signature

Unlike a few other professions where the accountability is primarily to the client, in our profession the account-ability extends to various stakeholders. For instance, when a member of the profession is exercising the assurance function in the nature of statutory audit and appends his signature, he is not only accountable to the shareholders who are the owners of the company but also to the investors, depositors, lenders – banks and institutions, regulators, customers and all those who make decisions relying on the authenticity of the financial statements so attested. Expression of independent and qualitative opinion is imperative for securing and fulfilling the accountability aspect of the profession. Attest function is the exclusive domain of our profession. We have been given this recognition on the faith that we will discharge it with utmost care and competence. Considering the fact that audit is not a privilege but a responsibility, it requires to be shouldered carefully by skilled and credible hands. Besides, audit is a time-bound exercise and, therefore, adequate trained manpower, infrastructure and audit tools and manuals are inevitable for a firm to acquit it creditably in discharging such function. Assurance function demands excellence, integrity and independence and when properly discharged commands unshakable faith, respect and image.

If warranted, based on facts and figures, we should have the mettle to express an adverse opinion on the financial statements of the client who ends up paying for such an opinion. Any dereliction in this regard might dilute our significance and exclusivity. When we consciously discharge our duties to meet with the genuine expectations of the stakeholders, our stature and rights get automatically preserved and cherished. Rights which flow from duties not done properly are not worth having.

Adherence to various standards governing the profession; ensuring proper documentation of work done and resorting to expression of opinion without fear or favour leaves no room for a gap in performance. Succumbing to pressure of a branch manager of a bank to complete an audit in undue haste or to classify certain NPAs as good debts may at best please him but undoubtedly erodes the image of the professional even in his mind. Losing sight of the significance of quality in work may result in short term gains to that professional but brings disrepute to the entire profession. If the nation’s interest is upheld and protected while serving a client, it brings greater glory to the profession and the brand image is enhanced by reinforcing stronger faith and instilling greater confidence.

The signature of any professional is an expression of credibility. So is the case with the signature of a member of our profession which is truly trusted and highly respected. The status of the signature of a person becomes elevated and turns out to be a precious one on acquiring professional qualification as a Chartered Accountant. Even if a miniscule section of the society perceives that the signature of a member of our profession is available for the asking or solely for a consideration that would be a dreadful scenario and could lead to erosion of goodwill which our forefathers have so strenuously built over six decades.

Ethical values

Some members of the profession strive and survive on account of the goodwill created by our forefathers. Many members contribute to and enhance such good-will by their exemplary conduct, impeccable integrity and qualitative delivery of services. Unfortunately, the conduct of a few has diminishing effect on the goodwill of the profession. We need to introspect as to which category we should belong to and the answer is obvious. Fee based approach in everything we do would be fatal in the long run whereas value based approach would enhance our reputation. Mahatma Gandhi said that there is enough for every one’s need but not for the greed. The Father of the nation also indicated that ‘ends’ do not justify the ‘means’. It might pay to be unethical in the short run, but in return one loses self-esteem and peace of mind, which is too precious a price one should dread to pay and suffer.

Lord T.B. McCauley said, “the measure of man’s real character is what he would do if he knew he would never be found out”. Everyone aspires to grow and reach greater heights. It will be nice to always bear in mind that ability may take us to the top but it requires character to stay there. Quality in service without compromising on ethical values begets not only prosperity in the long run but undoubtedly helps us to build image and command respect. In matters of innovation and empowerment, one should swim with the current, but in matters of values and principles, one should stand like a rock.

Challenging Environment

With the passage of time, business practices are getting corrupted. Government departments are difficult to deal with when straightforward approach is adhered to. The business philosophy and practices are degenerating in values due to which many frauds and scams are surfacing. There is lack of transparency and accountability in the usage of resources by the governments as well as entrepreneurs. Manipulations and fudging in matters of finance and accounts are resorted to for various reasons and more particularly for evading tax outflows. In such an environment it is a challenge for the accounting profession to discharge the duties upholding standards and values. A profession like ours owes it to the society to possess the courage of conviction and perform our role in the best interest of the economy in order to establish unblemished track record for the posterity to inherit.

The audit reports of C&AG on allocation of spectrum in the telecom sector as well as natural resources such as coal has brought in accolades from the public and created enormous awareness among the masses on the need for good governance and has served as a warning for those involved in the decision making process to be accountable. Many of our members have been instrumental in bringing out frauds and manipulations. The future is going to be tougher in this regard and all the same we need to gear up to face the challenge and ensure that there is no performance gap. No other profession can boast of having as proximate a role and nexus as ours with the economic development of our country. Let us reinvent the significance of our role in partnering, participating and partaking in building a credible economy in the incredible India.

Professional Social Responsibility (PSR)

A member of our profession is considered to belong to the elite segment of the Indian society. About 27% of the Indian population is perceived to be below the poverty line. We owe it to the society to contribute in uplifting the lives of the downtrodden and under privileged masses. The standing and respectability of the profession can touch lofty heights only if the profession is able to positively contribute to the socio-economic development of the society. Several measures can be resorted to as part of PSR initiatives and some of them can be readily spelt out. Firstly, ICAI and professional forums like BCAS can enhance the level of contribution in the policy formulations by various ministries of the Central Government and of the State Governments on socio economic reforms and their effective implementation. Secondly, senior members of the profession and other members with requisite exposure, aptitude and inclination, can plunge into public life in large numbers; accept positions such as trustees of public charitable trusts and institutions, become governing board members of educational, health care institutions and not for profit organisations, assume leadership in chambers of commerce, management and trade associations. Thirdly, every medium and large firm can establish a charitable institution and carry out activities to meet societal needs in a small way.

It is well known that ICAI has a Benevolent Fund for the members of the profession, which goes to the rescue of the distressed, in times of need. Another similar measure was conceptualised as ‘Fund for Education and Welfare of Students’ during 2006-07 but seemed to have been lost sight of down the line.(Please refer page 1186 of February 2007 Journal, The Chartered Accountant). If properly taken up, this fund would assist meritorious but poor students to be financially supported and counselled to pursue and qualify as members of our profession. CA. Prema earned wide acclaim by achieving All India First rank in the November 2012 examination in spite of hailing from a humble background with her father being an auto rickshaw driver in Mumbai. Many such students could be ably supported and made members of our profession. We should reach out to those bright students who might not otherwise take up higher studies and thereby change the profile of their families by the power of our professional qualification. This can be yet another measure worth pondering over to be acted upon as part of the PSR initiative.

Conclusion

As we continue our glorious journey, it’s time that we take stock of the socio-economic changes unfolding around us and adjust the course of our journey accordingly for larger benefit of the society and the nation. We may not have the ability to change the course of the wind but we can set the sail appropriately to proceed in the noble path we choose to progress. French philosopher Jean-Paul Sartre said that we have no destinies other than those we forge ourselves. Let us make the society feel proud of our profession and thereby justify our existence.

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A story going the rounds is that the Chairman of a company after referring to the next speaker as a lawyer added “he is nevertheless a nice person.” But is the jibe deserved? Before passing judgement it would be appropriate to consider the duties a lawyer owes to his client, to his profession and to the Court, his accountability therefor and the conflicts which arise in discharging the separate and distinct duties. Recently, the emphasis has shifted to the lawyer’s duty to Society. Though one cannot ignore this duty it is a duty subordinate to his primary duties of accountability to his client, profession and to the Court. The meticulous performance of these duties with care and precision is itself the performance of his duty to Society. Though not normally referred to, there is a fifth and equally – if not more – important duty – his duty to himself.

Very often the lay person raises a question as to how a lawyer could defend a particular person or a particular action of his client which in the lay mind was indefensible. The Bar Council of India has framed a code of conduct to be followed by all advocates. One of the duties of an advocate is to accept a brief in the Courts or Tribunals in or before which he normally practices. If, however, his brief requires him to argue contrary to his beliefs and there is a conflict of duty to his client and to himself then, his duty to himself may justify his returning the brief. It is not for him to choose which is a good case and which is not. The central function of a lawyer is to represent his client and to say in legal parlance what the client would have said if he was to argue his own case and had the required legal acumen. James Boswell in his Life of Samuel Johnson records having asked the great man “What do you think of supporting a cause which is known to be bad?” Dr. Johnson’s reply was to the effect: “Sir, you do not know it to be good or bad till the judge determines it. You are to state facts clearly, so that your thinking or what you call knowing a cause to be bad must be from reasoning, must be from supposing your arguments to be weak and inconclusive …”

Lord Macmillan in “Law and Other Things” has said that the advocate by the rules of his profession has, theoretically at least no choice in the selection of the cases he takes up. He quotes Erskine as saying that if an advocate is permitted to say that he will not stand between the Crown and the subject arraigned in the Court on the basis of his opinion above the correctness of his client’s stand “from that moment the liberties of England are at an end.”

It is the duty of an advocate to uphold the interest of his client by all fair and honourable means without regard to any unpleasant consequences to himself or to any other. An issue which sometimes arises is whether in discharging this duty there would be a conflict with the advocate’s duty to the Court. Whilst he must uphold in all ways the interest of his client at the same time he must not put forward as a fact when he knows (as distinct from what he suspects) to be untrue. For example, if the client has told him that he has done something the advocate cannot urge that he has not done it though he would be justified in taking the stand that it is for the other side to prove that his client had indeed done the act as alleged by the other side. Many people take the view that this is a facetious distinction which lawyers draw. However, the rule of law requires that it is for the plaintiff or the prosecutor to establish his case with acceptable evidence and if the lawyer does not take this stand he would be cutting at the root of the rule of law. It is also urged that a lawyer’s duty to society requires that he should not defend someone who he believes to be guilty of what is alleged against him. Those who would so urge should ponder over whether if a man sentenced to death for murder falls sick whilst in jail should a doctor attend to him or decline to do so in the belief that Society would be well served by his early demise. A lawyer’s duty is to his client and to the Court and if one may say so to the law. In my opinion these override any amorphous duty to Society which is spoken of so glibly. An advocate’s loyalty is to the law and the law requires that no man should be punished without adequate evidence. The cynic may counter that it is fortunate that people are born whose moral standards are sufficiently flexible to enable them to practise the calling of law!

Section 126 of the Indian Evidence Act provides that except with the client’s consent a lawyer cannot disclose any communication made to him by the client or to reveal the contents of any document to which he has become privy in the course of his professional employment or disclose the advice tendered by him to his client. Contrary to this specific provision of law the activist, who champions the lawyers so called duty to Society, would urge that the lawyer must not keep secret his knowledge about an illegality committed by his client. In my view there is no such duty and the importance of complete and free communication between a lawyer and his client is itself for the welfare of Society at large.

An interesting issue arises when a client wants to know the consequences of his acting in a manner which is contrary to the law. It would appear that it is the lawyer’s duty to explain what would be the decision in law if the misdeed is discovered but he should in no way be a party to facilitate on such misdeed. A fine issue arises – is it the duty of the lawyer to tell the client that what he proposes to do is contrary to the law and he ought not to embark on the act. It would appear (though there may certainly be two views on the issue) that it is not for the lawyer to be a moralist but leave it to the client to decide whether knowing the consequences ethical and otherwise, of what he proposes to do, he should still go through with his earlier scheme. Here also the protagonist of “duty to Society” may take a contrary view.

An arguing Counsel owes a duty to his client and to the Court for attending the hearing of an appeal from the beginning to the end. It is not enough that the lawyer attends Court only at the time his turn comes to argue the case for his client and thereafter on completing the argument leaves the Court with some excuse or the other proffered to the judge. The lawyer’s defence is that he owes a duty to other clients for whom also he is to appear on the very day. I feel that unless the lawyer is present throughout the hearing of the appeal and has heard the arguments of the opposing Counsel he would not be able to give off his best to the client or to render full assistance to the Court. He should choose which case he will attend to and return the other briefs in good time or have the other hearing adjourned. In a witness action the position may be different.

Sometimes a possible conflict arises when a judge seeks Counsel’s opinion on a particular matter which is in issue between the contesting parties. If the lawyer was to express his opinion or what he believes to be the right position in law he may be acting adversely to his client’s interest. He would therefore be justified in politely declining the judge’s request to give his opinion. Some purist may contend that in taking this stand the lawyer is not discharging his duty to the Court. Though the lawyer’s duty to the client is certainly not more important than his duty to the Court, nevertheless the “inquisitive” judge should have realised that the duty of the lawyer is to argue his case and not to express his opinion on the issue involved. Undoubtedly, tact of a high degree is required in meeting such a situation. People must realise that what a lawyer believes and what he argues are not the same.

A related issue is to what extent the duty of a lawyer to the Court compels him to cite all possible decisions which he is aware of even though some of them may be contrary to what he is briefed to argue. Whilst the lawyer must bring to the notice of the Judge any judgement which is binding on the judge like that of the Supreme Court of India or of the Federal Court or the Privy Council (when the opinion of the Privy Council is as of a point of time when the same was binding on the Indian Courts). He will also have to disclose to the Court any judgement of the High Court of the state where he is arguing the matter as the same may be binding or if the judge wants to take a contrary view he may have to refer the matter to a larger Bench. It is not the duty of the lawyer to cite decisions rendered by other Courts which are not binding. It is for the opposing lawyer, if he so thinks fit, to bring such decisions to the notice of the Court. This shows that the lawyer can honour his duty both to the Court and to the client in respect of a particular matter without infringing either.

Sometimes a very piquant situation arises. A judge recuses himself from a case on the ground that one of the parties has “approached” him. Should the lawyer of the alleged defaulter also opt out of the case? In my opinion, he should first of all satisfy himself that indeed a representative on behalf of his client had approached the judge, with the client’s authority to do so. Unfortunately, there are today people who without being instructed by the client to do so approach a judge in a pending matter of which they are aware and then approach the client with the offer of procuring a favourable judgement. Once he is satisfied that the judge was indeed approached under his client’s instructions he should return the brief though it is possible that this may prejudice the client adversely if the brief is returned in the midst of a hearing. It would also show his client in poor light. This sort of situation really calls for a fine balance being drawn between the lawyer’s duty to the client and to the Court.

When discharging his duties to his client the lawyer often is faced with matching the same to his duty to the profession and to his co-professional. Though it may be in the interest of his client for the lawyer to interrupt the other side’s Counsel so as to distract him from his trend of thought or interfere with the flow of his arguments, it would be a breach of his duty to a co-professional and he must not indulge in it. I must say that I have found that in the southern states of India the respect for the right of the opposing professional to have full uninterrupted opportunity to express his views is far more evident than in the northern and, may I add, western states?

It is undoubtedly the duty of the lawyer to the Court always to be courteous and deferential to the judge but that does not mean he has to be obsequious. If for any reason it appears that the judge is acting un-reasonably and making comments which are wholly uncalled for either against the litigant or the lawyer or the legal profession it is his duty to stand up to the judge and, as politely as possible, to correct him. It is not the lawyer’s duty to the Court to submit to insults to himself or his profession or to fawn for petty favours. I remember an occasion when a judge was unreasonably giving a junior lawyer a tough time. As the Court rose for lunch a senior lawyer, who was wait-ing for his case to be called out got up and suggested that perhaps the junior lawyer deserved a more patient hearing. The judge – full marks to him – saw reason and his attitude changed post lunch. It is remarkable that the senior lawyer really did not know the junior at all but the incident shows the importance of stand-ing up to a judge even when it does not affect the lawyer personally.

It sometimes happens that a “succeeding” lawyer in the course of his argument takes a stand different from what his predecessor, who was then representing the client, had taken. If it is in the client’s interest for him to take a contrary stand he should do so but without in any way decrying or condemning the stand previously taken by the predecessor lawyer. In this manner he fulfills his duty both to the client and to the profession.

Sometimes a lawyer may feel that it would be advis-able for a client to consult another lawyer or even to brief another lawyer rather than himself. He should frankly advise the client to do what is in client’s interest though it may conflict with his own pecuniary interest. A lawyer is sometimes asked to recommend the name of a junior to assist him. The lawyer should either leave it to the client to choose the junior lawyer or suggest 3 or 4 names preferably not only from his chamber and leave it to the client to decide who should be briefed. This would fulfill the duty of the lawyer to his co-professional by not depriving a junior outside his chamber from being briefed.

In the practice of the profession sometimes peculiar situations arise which have a bearing on conflict of duties. It may happen that after a case is heard and decided the advocate reliably learns that the judgement was improperly procured. This would mean that even though the client may not himself be guilty of any improper conduct there was a miscarriage of justice. Is it the duty of the advocate in these circumstances to bring these facts to the notice of the Court for considering whether to order a retrial? The purist would undoubtedly say that it is advocate’s duty to do so but there may be practical difficulties.

An interesting instance of conflict of duties may arise when a lawyer accepts a directorship. It may happen in this way: the company of which he is a director may be confronted with a particular problem and looking to the facts of the case the company may have to adopt a particular stand in law and the director would have voted in favour of taking such a stand. In the light of this peculiar position his view of what is the correct position may get warped and he may not be able to render independent advice to another company facing a similar problem. For a similar reason, a lawyer who is a director of a company must not appear in Court for the company as he may not be able to maintain the sense of independence and detachment required of him. In similar vein a firm of solicitors, a partner of which is a director on the Board of a company, is not allowed to represent the company in Court. This is sometimes overcome by the solicitors firm interposing a dummy lawyer. But that is really a case of failure of duty to one’s conscience!

A common source of conflict is where each of two partners of a firm represents persons arraigned against each other. They build some sort of a Chinese wall to urge that they both function independently. However, there is no gainsaying the fact that there is bound to be at some stage a conflict of duties and the firm may tilt in favour of the client who is more important to it; namely, from whom it hopes to earn a larger fee in the long run.

It goes without saying that an advocate cannot be a party to procuring evidence by inducement. By procur-ing evidence the advocate may further the cause of justice but may he be guilty of breach of his duty to the Court or the profession and perhaps even to society. For example, a suit is filed by A claiming damages from B who had assaulted him. X was the only witness to the incident. When the matter is to be heard in Court X suggests to A’s lawyer that he may not come to give evidence and if he is summoned he may plead that he did not remember what exactly happened. He may slyly add that he could be induced to state the truth. If the lawyer spurns X’s suggestion it may mean that his client who was entitled in law to succeed may not be able to prove his case. On a strict view of the matter it would appear that the advocate is in breach of his duty to the Court and the profession if he suc-cumbs to the suggestion made by the witness. If he does not succumb to X’s demand is he in breach of his duty to the client because the client may fail in a cause where he deserved to succeed? The puritan will undoubtedly opine that upholding the process of law and justice is more important than an individual client’s obtaining of damages for the wrong done to him. On the other hand, one may think that it is reasonable to do a little wrong to achieve a higher good in the form of a person justly succeeding in the litigation launched by him. It appears that whichever way he acts the lawyer may later have pangs of conscience. A self saving action on the part of the lawyer may be to tell his client to contact X if he so deemed fit. Of course this would mean that the lawyer would have to live with the disconcerting fact that he, at least passively, was a party to “procuring” evidence.

An advocate undoubtedly owes a duty to his fellow professional: not to run him down or attempt to take over his brief. Does it mean that he should not appear in a matter in which his fellow professional is sued? The answer obviously is that his duty to his client, who claims relief against a professional brother, is higher than his duty to a fellow professional or to the profession. If a lawyer declines to appear against a brother lawyer it would mean that the affected party may not be able to find a lawyer to represent him.

Sometimes a client realises that he is bound to fail in his plea before the Court but he would like to postpone the evil day. It would appear that the advocate’s duty to the client permits him to obtain an adjournment on whatever grounds are available but without putting forward a false excuse. The fact that thereby there is a delay which is adverse to the interest of the other side does not mean that the advocate is in breach of his duty to the profession or to the Court.

The lawyer’s duty to the client does not extend to car-rying out all his instructions. For example it is not his duty to oppose the grant of an adjournment sought by the other side because his client says so or to urge an argument the client insists on even though the lawyer feels it would be counter productive or not ethical to do so, then, the advocate’s duty to himself, to the Court and to the profession must prevail. However, he should communicate his decision to the client in good time and he should give the client the option to brief another Counsel. In similar light is the case where the opposing side’s Counsel has slipped up. Should the advocate take advantage of that position? The classical view would be he should not. I do not know how far that is practical because surely it is not Counsel’s duty to say that his co-professional has made a slip in not pressing a particular point or not pressing it forcefully enough and the judge should consider the same.

I have referred above to a lawyer’s duty to Society. It would be apt to mention Society’s duty to “law.” Nowadays the media pronounces upon a case and lawyers comment on a case in progress. This may prejudice the interest of one of the litigants in the case. Society and all of us owe a duty to law and its fair administration and to desist from action which can conflict with a litigant’s right to a fair and free trial. I am conscious that if it were not for the interest taken by the media several matters of grave concern which involve prominent politicians and other personalities may have gone unattended to. Even so one should try to reconcile duties of the media to law and to Society.

Finally, does the advocate-writer of an article owe a duty to his reader not to bore him even though his personal vanity tempts him to continue? I should think so and so in deference thereto and to fulfill a higher duty I shall wind up this piece!