Grey areas for black robes

- April 19, 2019
| By : Patriot Bureau |

After working as a chartered accountant for five years, I switched to the field of law. For the last three years, I have been working as a lawyer. There is a code of ethics called ‘Rules on Professional Standards’ framed by Bar Council of India – applicable to every advocate who is registered with the […]

Petitioner Satish Deshpande (L) and Indian lawyer, activist and politician Prashant Bhushan (2L) walk ahead of the hearing outside the Supreme Court in New Delhi on August 29, 2018. - India's Supreme Court on August 28 said that five left-wing activists arrested yesterday cannot be jailed immediately and asked the government to keep them under house arrest till its hearing next on August 29. The top court was hearing a petition challenging the five arrests after countrywide raids which drew condemnation from opposition parties and rights watchdogs who said it was a crackdown on critics of the government. (Photo by CHANDAN KHANNA / AFP)

After working as a chartered accountant for five years, I switched to the field of law. For the last three years, I have been working as a lawyer. There is a code of ethics called ‘Rules on Professional Standards’ framed by Bar Council of India – applicable to every advocate who is registered with the concerned Bar Council. According to that, a lawyer is bound to accept briefs and represent a client before the required authority or court unless special circumstances justify his refusal.

We are obliged to cater to the demands of the clients and uphold their rights and contentions. Now, there is a catch in this when the client himself misleads or plays fraud upon the advocate engaged and prejudices his image in the court. For instance, I was handling a case related to a group of students admitted to graduate studies in a college. There, I found that out of 16 students, four were involved in malpractices and irregularities as allegedly claimed by the college authorities.  I detected it later upon filing of several applications, appeals and complaints under RTI Act, 2005 and when the client got to know, the professional fees of around Rs. X (not to be disclosed) was denied to be paid, for which the professional services were already rendered.

There are cases where our clients don’t pay the fee and many a times, they want us to fight the case for them whether they are right or wrong. But it is the duty of a lawyer to put all the facts before the public. So, this is a big problem for us – should we support a person who has gone against the law only because they are our client? It depends upon the moral choice of the advocate whether they wish to take up certain matters or types of clients.

Another problem that has marred the legal system is the poor infrastructure of the courts. The courts remain overcrowded. Also, the lawyers exceed the number of chambers that are available, which leaves most of us without separate chambers. Even if you file an application for a chamber allotment in any district court or High Court of Delhi, you may get it after a long leap of years or may not get it even if estimated from today.

Several new courts have come up, but the number of chambers is still not enough. For example, the Rouse Avenue District Court near ITO does not have any chambers. Also, there is a lack of ancillary services like workstations, computers, coloured printouts, scanning, seating availability and proper sanitation in courts.

Our profession similar to that of doctors. So, initially one will have to struggle a lot and experience the broad three categories of a litigating lawyer’s life i.e. Phase I (No Work, No Money), Phase II (Work, No Money) and Phase III (Work and Money). They are not paid adequately when they are under mentorship of senior advocates.

Lawyers are not paid well during the time when they are learning while work under a senior advocate. However, IAS/IPS officers are paid well when they are in the same stage, which is why majority of the students aspire to be public servants, rather than professionals. There’s no provision of stipend to law interns as a matter of policy. Skill training is also not available.

Also, many pursue law from less prestigious universities. Or rather, from ‘fake’ universities. In some remote areas, there are law colleges which provide degrees, without requiring the student to sit for the exam. Significantly, these law colleges and fake advocates are ruining the system and they ostensibly, cannot be recognised or differentiated. So, these lawyers struggle more and also end up deceiving their clients.

According to statement of the BCI published in news reports, 30-50% of lawyers in the country are fake. So, you can wear black coat and white trousers, and manage to look like an advocate. But how will one distinguish between a wrong lawyer and the right one?

Another grey area in this profession is that the advocates, especially the competent and flourishing ones, do not want to become judge and/or members of the bench. The reason is the kind of monetary benefits and independence they enjoy as an advocate – they do not get it as a judge. A judge has many restrictions since they have to scrupulously observe ‘Restatement of Values of Judicial Life (1999) – CODE OF JUDICIAL ETHICS’. Thus, ultimately, it is better to continue as an advocate, sans the restrictions that the position of a judge entails. These, among many others, are the things which are plaguing the judicial system.

Also, there are certain matters in the court, where they prefer to hear from senior advocates. Courts, in my personal experience, sometimes give due weightage to the years of experience or designation, in providing time and attention for personal hearing, denying real opportunities to young or ‘baby counsel’ (as is termed unofficially owing to systemic legacy of ‘years of practice’) at appellate and constitutional courts.

So, even if a junior is making a good statement of law, it is not taken to the court. The reason is that they do not have an experience of 15-20 years. It also depends on the subject matter. For example, if I am filing a petition against the government regarding the Triple Talaq case, the judge may not take me seriously on that issue. Even if I have done proper research.

But if an advocate having 25-30 years’ experience represents the same, the judge will hear him – as to value his years of experience – irrespective of whether that experience was gainful or not. So, experience definitely acts as a prejudice for the judge, who take this into account for giving you a proper hearing. This happens while handling matters of grave concern or matters which can challenge public accountability of the government.

Also, I hear from my colleagues, who are criminal advocates, that the chances of the witnesses being threatened or intimidated are really high. A disinterested witness or complainant, who wishes to seek justice has never been safe in the present judicial set-up. Although victim compensation and witness protection scheme are coming up and are in their nascent stages. However, the gullible witnesses are being made voiceless through show of money and muscle power. This had been really prejudicial in the long and dreaded chain of seeking justice.

Mohit Kumar Gupta is a Delhi-based advocate and mediator

As told to Shruti Das