Contrary to public opinion, lawyers have no financial security after they attain 60 years of age because there is no provident fund, no pension, no gratuity and no home loans specially for lawyers from the banks. Despite being called a noble profession, it is ignoble to be forced into penury because there is no mediclaim policy for lawyers which is why the Constitution has miserably failed those who fought to uphold it in the courts.
This is why the Bar Council of India (BCI) called for a nationwide strike on Tuesday because young lawyers cannot afford to purchase or rent chambers near the courts where they practice unless they are the sons, daughters or nephews of senior lawyers or judges.
The Supreme Court declared in Captain Harish Uppal versus Union of India in 2002 that lawyers had no right to strike or boycott courts which paralyzed the courts. This may explain why with exceptions, the courts continued to function smoothly throughout parts of western India despite the call for a strike by the BCI.
The National Lawyers Campaign for Judicial Transparency and Reforms will file a petition on Friday in the Supreme Court demanding better facilities for lawyers throughout India. The president Mathews Nedumpara said first generation lawyers find it difficult to survive which is why the profession needs to be reformed. Not all lawyers can emulate Fali Nariman or a Ram Jethmalani who charged several lakhs of rupees for a single appearance. They form an exclusive club in a few high courts and the Supreme Court.
The idea that law was a noble profession originated in ancient Rome where citizens could appoint a friend to plead their cases but these friends were not allowed to charge fees. In the USA, there was no special training required to be a lawyer until 1761 when lawyers formed an association made seven years training mandatory before setting up practice.
The bar in the USA also laid down professional ethics that all lawyers were required to follow. In England, the upper class gentry charged each person according to his means. The gowns these barristers wore had a flap at the back where a client was supposed to slip in what he could afford without the barrister asking for it. Today, senior counsels still wear identical gowns.
Today senior lawyers exploit their juniors who repeat the process when they become seniors, finally fading into the night when their memories and eyesight dim with age so their clients abandon them. Unless, of course, they have sons, daughters or nephews who will take over their practice—which is the norm.
The Supreme Court will hear a petition today filed by Manikandan Chettiar, an advocate from Chennai, against the life ban imposed on him by the Bar Council of India for allegedly exposing malpractices among lawyers, one of whom was P V Prasad, now a sitting judge of the Madras high court. Chettiar is the first advocate in independent India to be banned for life and the third person in the 395 years in Indian judicial history to face such ignominy.
Mahatma Gandhi was banned for life ban against practising law by the British in 1922 and freedom fighter Shyamaji Krishna Varma was the second person to be banned from law practice in 1909. The first two decisions of life ban were imposed by London’s Inner Temple, the then regulator of the Bar. But both were reinstated posthumously in 1988 and 2015 respectively, 66 years and 106 years after being banned.
It is to maintain their dignity that lawyers have demanded better infrastructural facilities for courts across the country and a budgetary allocation of Rs 5,000 crore for financial protection, stipend and insurance cover for lawyers and their families. Lawyers are also demanding amendments to the Legal Services Authority Act to allow them to head these authorities. Puducherry was the first government in India to announce a stipend of Rs 3,000/- per month for three years to fresh law graduates from the chief minister’s relief fund.
Tragically, not even one of the bigger states have emulated tiny Puducherry which is a union territory. Till today, the only routes available for those who graduate in law are private practice or preparing for the judicial services examination of their respective state. If they clear the written test and interview, they have to surrender their sanad in exchange for financial security from the state. Some lawyers may opt to become assistant public prosecutors where they are paid by the state.
Even arbitration matters are monopolized by retired judges who charge huge sums as reading fees while senior lawyers with special skills may head some arbitral tribunals. Some lawyers drift into academics but there too, they are paid on a clock hour basis unless they agree to surrender their sanads and join full-time as assistant professors. Junior lawyers have to literally fight for clients which is no easy task. On the criminal side, lawyers are known to offer a percentage or “cut” to the police inspectors heading various police stations in exchange for clients.
These policemen then refer those whom they arrest for petty offences to lawyers of their choice. Like doctors and chartered accountants, lawyers are not allowed to advertise for clients. This means they rely on word-of-mouth to obtain clients and if they dare to antagonize their seniors or solicitor firms, they will be blacklisted so no counsel (lawyer who argues) can earn enough to survive. In the 1960s, 70s and 80s, these solicitor firms monopolised the original side of the Bombay high court because port trusts, banks, airlines and the railways preferred to approach reputed solicitor firms rather than individual lawyers.
This led to a situation where these solicitor firms chose counsel to appear in certain cases depending on the credibility of that counsel with certain judges. This led to the joke that face law overrode case law because seniors of repute were given a patient hearing whereas unknown juniors were sometimes rudely cut short despite preparing their briefs thoroughly.
The fiction that law is a noble profession is exposed by a motley mob of black coats soliciting clients outside courts such as the Esplanade court in Mumbai and Tiz Hazari in Delhi. Young law graduates have to spend not less than Rs 1.4 lakh to pass out from reputed law colleges which is impossible to recover immediately because seniors allow them to only “ask for dates” while not allowing them to argue “heavy” matters.
It is only after a young lawyer is confident of attracting sufficient clients that he may choose to leave his senior or drift into the corporate world where they may have to surrender their sanads in exchange for financial security.
Olav Albuquerque holds a PhD in law and is an advocate-cum-journalist of the Bombay high court.