We hold a constitution with a socialist preamble. But the litigation industry had sabotaged the very foundational logic of the fundamental law. In a legal market that is globalised, privatised and liberalised, law has become a big business. Justice becomes an expensive commodity; the privilege of the few.
The republic lost its public component and the law courts eventually became places where the “aam aadmi” is afraid to enter. Two major reasons for this “litigation phobia” seem to be judicial delay and lawyer fee.
The Supreme Court in Salem Bar Association Case (2005) held that access to justice is citizen’s privilege. Access, in essence, does not mean more number of courts or lawyers. The surest test for the “right to access” is the people’s faith in the system. If the mass is distanced from institutions of justice, on account of the cost factor, it is time the country thought about radical reforms.
Lawyers work as the connecting link between the court and the public. Therefore, legitimacy of their fee also is liable to public scrutiny. When excessive or unreasonable fee become perpetuated and institutionalised, the very judiciary is “failed by the lawyer”, to use Nick Robinson’s phrase.
Fair advocacy is not alien to Indian legal tradition. It has been the nation’s legacy. Gandhi who himself was a lawyer demonstrated it in his own characteristic way. Even rich lawyers like Motilal Nehru and C R Das converted their elitist legal practice into one dedicated to the common man.
In the post independence era, doyens of the bar like M C Setalvad were keen to levy only the minimum standard fees, irrespective of the client’s capacity or their own “star value”. Star value, in those days, was a moral concept. It was not money value.
Legal profession, though seemingly individualistic, is essentially institutional. It cannot sustain with canon and court alone. Ultimately, it depends upon its consumers. Lawyers are essentially officers of the court. The American Bar Association Code reminds that the lawyer’s primary job is administration of justice. The relevant Indian rule says that “an Advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices… which the advocate ought not to do”.
Unjustifiable fee runs counter to this stipulation which in turn creates a new brand of capitalism within the judiciary. Crores of rupees are charged by senior lawyers for cases which have no nexus with the labour or time involved. But more expensive lawyers are often mistaken for more capable lawyers. This is an irrational concept, which has been unfortunately perpetuated though decades. This superstition is instigated by the persons at the helm of affairs.
The high courts also followed suit. When practice of collecting excessive fees by the senior lawyers was challenged in M P Vashi’s case, the High Court of Bombay simply dismissed it. Wesly Romine points out that even in jurisdictions in the West, “Courts encounter great difficulty in determining what constitutes so gross an overcharge by an attorney”.
Making the fee reasonable means making the profession fair. In O P Sharma v High Court of Punjab and Haryana (2011), the Supreme Court eloquently underlined the need for proper professional conduct. A proper advice and correct disclosure regarding the litigation risks are qualities attached to professional fairness. Money alone does not and should not make a lawyer. It is only a byproduct of the profession.
Levy of contingency fee is prohibited by Indian law. Contingency fee is determined on the basis of the future outcome of litigation. The fixation and levy of fees on the basis of the amount of compensation in accident claims would, therefore, be illegal. This, in turn, creates pecuniary interest for the lawyers in the subject matter of litigation which in itself would negate objectivity and professionalism.
Law Commission fails
The Law Commission of India has failed to address the issue of excessive litigation cost in the country which is predominantly the result of unfair levy of fees by lawyers. In its 240th report (May 2012), the commission examined several state rules on fees and strangely, pleaded for enhancement of fees! According to the report, fee prescribed in the rules is ‘so meagre’.
Rules do not cover all types of cases or courts and, therefore, the major varieties of fee are outside their ambit. Levying of fee by lawyers in India is not by and large governed by any rules at all, and even in areas covered by the rules, as in civil litigation, they are honoured only in their breach. The commission has thus shown an unrealistic and undemocratic gesture without re``alising the gravity of the issue.
The public view of eminence in advocacy also needs to be changed.
The artificial and luxurious misconceptions about professional greatness need to be exposed and fairness in fixation of remuneration recaptured. While recognising the labour behind research, travel and homework, the litigant also should be guaranteed fairness in dealings. We are yet to realise the significance of proper guidance and genuine legal consultation. It is reasonable to charge for a fair advice after due consultation than charging exorbitantly for a fruitless litigation based on an erroneous or casual advice.
The country should change its litigation habits. More egalitarian and sophisticated methods of dispute resolution like arbitration and conciliation are to be encouraged in areas ranging from business to matrimonial disputes. The iron wall between legal profession and society is only to be smashed and the profession demystified. There is a real need to evolve a national movement for fair advocacy which should take in lawmen as well as laymen from all the states.
(The writer is a lawyer practising in the Supreme Court and High Court of Kerala)
