Pricing out justice

Any serious attempt to tackle the problem of high fees will have to begin at the Supreme Court, since the biggest grossers are there. Let us, therefore, look at the fee structure of the 20-odd senior advocates who are in greatest demand at the apex court. These black-robed stars charge anywhere between Rs 40,000 and Rs 1 lakh per appearance at the stage of admission of the petitions. After admission, the seniors are engaged for regular hearings at the equally exorbitant rate of Rs 50,000 to Rs 1 lakh per hearing. In criminal cases, the accused seeking bail from the court of last resort will have to cough up as much as Rs 50,000 to Rs 1 lakh. As if that was not hard enough for the litigants, the seniors also charge them Rs 15,000 to Rs 75,000 just for conference (that is, for being briefed about the case). The bills they slap on the litigants contain charges under a wide range of heads, including about 10 per cent for clerkage. If these figures are confusing, here’s another way of looking at the fee structureof this select club which is estimated to handle a majority of the admission matters. In a single day of admission matters, each of these senior advocates may make more money than what the judge, whom he or she addresses reverentially as "My Lord," earns in a whole year.

The purpose of describing the fee structure of the leaders of the bar is not to grudge them the price they command for their intellectual capital. Neither is it to highlight that the commercialisation of the bar detracts from its traditionally-held status of being a noble profession. Rather, the attempt is to show that when there is an unbridled reign of the free market forces at the bar, there is bound to be an adverse effect on the system of justice and, ultimately, on the public interest.

Take, for example, the plight of a cash-strapped government undertaking which had the misfortune of engaging a senior advocate who carries a price tag of Rs 1 lakh per appearance. Since he charges on a "per appearance" basis, he manoeuvres more hearings than are necessary. There is no built-in check to stop him from squeezing his client dry or from enriching himself unjustly at the expense of public money. But thanks to his badge of seniority, he gets precedence over junior lawyers under the Supreme Court rules. And yet his services are being allowed to become more and more unaffordable to individual litigants with limited economic means. Not surprisingly, the only ones who can really afford his "appearances" — irrespective of how many he manoeuvres — are the corporate clients with deep pockets.

It was against this background that last month the Supreme Court Bar Association passed a resolution urging the government to amend the law and do away with the class of "senior advocates." The reason for the resolution is only to "protect the independence, dignity and solidarity" of the lawyers. The Bar Association is aggrieved by the fact that there are no prescribed criteria for being designated as senior advocates and that the courts confer that badge purely at their own discretion. But if the legal profession is actually made egalitarian, it may have the unintended effect of weakening the current "star" system which feeds on the official recognition of seniority.

Jaitley will, therefore, do well to consider this proposal of abolishing the tag of senior advocates. Another aspect of the Advocates Act crying to be revised is the schedule prescribing the fee that the lawyers can charge. Since those rates are hopelessly outdated, they are observed only in the breach. In fact, the reforms to reduce the time of litigation stand a better chance of working if Jaitley also brings down the cost of litigation.