Since economic liberalisation in 1991, the cost of litigation has spiralled. Lawyers’ fees form the major component of it. In an adjournment-friendly judicial system, litigations linger. Lawyers’ fees keep multiplying. The financial drain, loss of time, and emotional and physical exhaustion caused by the labyrinthine queue for justice dissuades many from accessing courts.
In a judgment last week, the Supreme Court hoped that the Centre would heed Law Commission‘s recommendations and introduce legislative changes for an effective regulatory mechanism to check violations of professional ethics by lawyers and also ensure access to legal services by regulating the “astronomical” fees charged by them. In a free economy, it is impractical to fix ‘floor and ceiling’ of fees charged by professionals. A minuscule number of lawyers charge fees running into lakhs for very brief hearings on Mondays and Fridays in the SC. They cater to the super rich clients and corporate houses. Daily earning of this small band of lawyers in the SC on Mondays and Fridays probably exceeds the average annual salary of successful professionals in other fields.
Their strike rate-based reputation, coupled with high fees, probably exerts immense pressure on them to settle for nothing less than a favourable outcome for their clients. Most of them get riled on hearing a no from the judges. When judges are not inclined to grant relief, they use every tactic under their belt, ethical or unethical, to make the judge accede to their demand.
There is another small band of lawyers, who are advocates in court, activists on Twitter and semi-politicians outside the court. Most successful lawyers as well as activist-advocates have a well-defined political lineage or conviction. When they file public interest litigations, the court must entertain these and dare not reject them. The judges who make the ‘cardinal mistake’ of disagreeing with them are quickly branded ‘corrupt’, ‘inefficient’ or ‘government lackey’.
To overcome ‘difficult’ judges, these two categories of lawyers raise their voices and often make the judge feel deficient in legal knowledge. Some judges stand up to this affront and run the risk of getting branded. And if browbeating a judge does not bring the desired result, they seek the judge’s recusal.
This brand of advocacy by this small group of lawyers is fast gaining ground. High-fee litigation and socio-political standing of lawyers have transformed advocates to employ an adamant ‘I am right’ argument. They have the licence to dissent. But if anyone else dissents with their views, then they set social networks afire by incessantly insinuating about the dissenter’s character and integrity.
In this process, the courts, which were once the granaries of knowledge, have become veritable battle fields. The lines are constantly drawn. The ‘if you don’t agree with me then you are my enemy’ line has gained currency. Respect for each other and judges has diminished. The institution’s reputation has suffered.
We saw this in the Subrata Roy Sahara case. On May 6, 2014, a bench of Justices K S Radhakrishnan and J S Khehar, exasperated by the hounding arguments of renowned lawyers, vented their angst by approvingly referring to Delhi High Court‘s response to advocate R K Anand’s plea for recusal of Justice Manmohan Sarin in a case where the counsel was facing criminal proceedings related to the BMW hit and run case.
Justice Sarin had said, “The path of recusal is very often a convenient and soft option. This is especially so since a judge really has no vested interest in doing a particular matter.” Referring to a judge’s oath of office, he had said, “In a case where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting/bench preference or brow-beating the court, then succumbing to such pressure would tantamount to not fulfilling the oath of office.”
Instances of browbeating of judges by advocates are not of recent origin. But it has increased in recent times. In ‘Re: Ajay Kumar Pandey’ [ AIR 1998 SC 3299], the SC had said, “No one can be permitted to intimidate or terrorise judges by making scandalous, unwarranted and baseless imputations against them in the discharge of their judicial functions so as to secure orders which the litigant wants… The liberty of expression cannot be treated as a licence to scandalise the court.”
In M/s Chetak Construction Ltd vs Om Prakash [AIR 1998 SC 1855], the SC had deprecated the practice of making allegations against judges. It had said, “Lawyers and litigants cannot be allowed to terrorise or intimidate judges with a view to secure orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it.”
In 1937, the American Bar Association adopted the following canon of professional ethics, “The lawyer should not purchase any interest in the subject-matter of the litigation which he is conducting.” This is also part of the ethics code applicable to Indian lawyers.
These days, many lawyers file PILs in which stakes are socially and politically very high, even if one discounts monetary benefits. These lawyers, being author, mentor and force behind these PILs, have an intrinsic interest in sustaining the litigation to keep their position intact in social and political amphitheatres. Some of the high-fees lawyers too suffer this syndrome.
It is time for the legal fraternity – judges and lawyers – to work together to devise means and ways to infuse values and a self-correcting mechanism to protect public faith in the institution. Courts cannot shy away from inquiring into allegations with reasonable proof against judges. But insinuations based on suspicions must not punch holes in the ship delivering justice, for the judicial sea is witnessing rough weather.