Justice in India is unaffordable. Recently, while speaking at a Constitution Day event, President of India Droupadi Murmu stated that the onus of making the process of seeking justice affordable is on all of us. In saying so, she echoed the idea behind the famous lines from Justice V R Krishna Iyer’s judgment in Moti Ram v. State of M P (1978) that “our constitution, enacted by ‘We the People of India’ is meant for the butcher, the baker and the candle-stick maker — shall we add, the bonded labour and pavement dweller.” Similarly, while speaking at a different event earlier this year, Former CJI U U Lalit stated that “litigation is like a bleeding wound — the more you let it bleed, the more the man will suffer.”
In a country where nearly 21.2 per cent of the population lives below WHO’s international poverty line of US$ 1.90 (approximately Rs 165) per day, the cost of justice is nothing short of astronomical. As per the Access to Justice Survey (2017) by Daksh, nearly 37 per cent of litigants spent anywhere between Rs 10,000 and Rs 50,000 and another 24.2 per cent spent between Rs. 50,000 and Rs. 1,00,000 on individual cases. In this context, it is trite to say that the best legal representation commands prohibitive charges. As per some reports, the fee for an appearance by a top lawyer in the Supreme Court can range anywhere from Rs 10 lakh to Rs 20 lakh. Similarly, the fee for appearance in high court ranges from anything between Rs 3 lakh to Rs 6 lakh. Affordable legal representation being key to affordable justice, it is imperative that the fees charged by practitioners must be standardised and regulated through a reasonable mechanism.
There are several initiatives which can be cited in order to deflect the concern regarding the unaffordability of justice. The first such initiative comes in the form of the Legal Services Authorities Act, 1987 (Act) which puts into place a three-tier legal aid structure. The legislation was enacted with a view to give effect to Article 39A of the Indian Constitution which mandates the promotion of justice through equal opportunity by the provision of legal aid. Section 12 of the Act provides a person who earns less than Rs 9,000, or any higher amount prescribed by a state government, with entitlement to legal services.
The intent of the Act is clear — it seeks to ensure that no person shall go unrepresented on the ground that he cannot afford justice. The translation of this intent into practice, however, is a different matter. Firstly, the lack of awareness of the Act is a major challenge to its success. The India Justice Report, 2020, found that while nearly 80 per cent of India’s total population of 1.3 billion was eligible for free legal aid under the Act, only 12 lakh persons benefitted from the same in 2019. The report also highlighted issues pertaining to deficiency of manpower, negligibility of budgets, lack of last-mile connectivity etc. Secondly, the Act does not take into consideration the costs incurred by litigants in addition to the court fees. Bengaluru-based NGO Daksh’s ‘State of the Indian Judiciary Report’ found that litigants with an annual family income of less than 1 lakh rupees had to spend nearly 25 per cent of the same on court hearings in addition to the legal fees charged by the practitioners.
Another scheme which seeks to make justice affordable is the Middle Income Group Scheme of the Supreme Court which provides for legal services to middle-income group citizens whose income does not exceed Rs 60,000 per month or Rs 7,50,000 per annum. The scheme rationalises and standardises the fees payable to Advocates or Senior Advocates who are empanelled under the scheme. The intending litigant can file an application indicating an Advocate on Record (AoR) of their choice who shall determine if the same is a fit case for leave to appeal to the Supreme Court. The litigant can provide a choice of three names in relation to AoR, arguing counsel or senior advocate. The scheme was launched in 2017 and has since been adopted by some high courts such as Delhi and Punjab and Haryana. While this is welcome, such schemes are yet to permeate down to the district level where the need for them is felt the most.
The idea of rationalising and standardising fees charged by legal service providers merits consideration in the context of making justice affordable. This idea isn’t novel and was considered by the Law Commission of India (LCI) in its 131st Report on the Role of the Legal Profession in the Administration of Justice. The LCI found that the respondents to its questionnaire (mostly State Bar Councils) were not in favour of the standardisation of fees on the ground that the paying capacity differs from client to client and from place to place. The NGOs which provided legal aid services were, however, in favour of such standardisation.
The LCI observed that the charging of astronomical fees by some senior advocates and their retention by corporate clients devolves into a culture that trickles down to the roots of the profession. The Commission recommended that the legal profession must make its services affordable. It goes without saying, however, that any attempt at standardisation and regulation must stand constitutional scrutiny in as much as it would impact the Right to Freedom of Trade and Profession guaranteed under Article 19(1)(g). Such a right is not absolute but is subject to reasonable restrictions which may be imposed in the interest of the general public.
It is also pertinent to note that the cab-rank rule requires advocates to rationalise their fees in the interest of making justice affordable. The cab-rank rule as adopted by the Bar Council of India imposes a duty on an advocate towards a client by binding them to accept any brief they receive with respect to a case in the Court where they practise, at a fee consistent with their standing at the bar and the nature of the case. Any fair and transparent determination of the consistency of the advocate’s fee with their “standing at the bar” and “nature of the case” requires the setting of objective and rationalised standards.
Affordable justice, much like affordable healthcare and affordable housing, is a bedrock of modern democracies which place a premium on the welfare of their citizens. It is a travesty of justice that the poor and marginalised sections of society are the worst sufferers in terms of access to formal legal processes and quality legal representation. While not the only solution, professional fee standardisation and regulation can be a potent tool in the realisation of the ideal of making justice affordable. We must explore all constitutional ways and means through which such an ideal can be realised.
(Bajpai is the Vice-Chancellor and Kaushik is an Assistant Professor at Rajiv Gandhi National University of Law, Punjab)
