Supreme Court expresses displeasure over systemic discrimination of law graduates coming from marginalised sections
The Supreme Court has expressed its disappointment over the systemic discrimination faced by law graduates belonging to the marginalised sections of society in the legal fraternity.
The Bench of Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra recently observed that the exorbitant enrolment fee charged by State Bar Councils (SCBs) across the country created additional obstacles for underprivileged law graduates to start a sound practising set-up.
The Bench observed that in India, on the face of it, the enrollment fees applied equally to all applicants may seem fair, but at a deeper level this ‘fair approach’ actually created barriers for students from poorer families or marginalized communities, while also promoting ‘systemic exclusion and discrimination’.
It said the burden of payment of enrolment fees and other miscellaneous fees imposed by the SBCs fell equally on all persons seeking enrolment. While the burden was facially neutral, it perpetuated structural discrimination against persons from marginalized and economically weaker sections of society.
The process of enrolment perpetuated a culture of systemic exclusion and discrimination, which impacted the entry of law graduates into the legal profession and even beyond, noted the Apex Court.
It underlined that the path to becoming a lawyer in India was not as easy as it may seem.
Right from the expenses incurred for entrance exams to law schools and preparatory classes to the high fees charged as tuition in the institutions (either paid out-of-pocket or through loans) along with internships and extra activities, piled up the financial burden of each aspiring lawyer.
The Bench noted that for any law graduate to make it big in the legal profession, she/he would need access to the right connections and promising opportunities.
This put the graduates from marginalized communities at a disadvantage, as they typically lacked these valuable social networks. The Apex Court stressed on the need to have greater representation of lawyers from the marginalised communities to uplift the coming generations.
It said social capital and networks played an important role in the Indian legal setup in advancing legal careers as most litigation chambers preferred to hire advocates through networks and community linkages.
The Bench noted that the structure of the Indian legal system was such that social capital and networks played an important role in getting clients. This lack of social capital and network was acutely felt by advocates from marginalized communities.
The marginalized sections of Indian society faced insurmountable obstacles in navigating the Indian legal system. This was further compounded by their lack of representation in the legal profession, it added.
The Apex Court emphasised on greater representation of the marginalized communities in the legal profession to increase the diversity within the profession, enable the marginalized sections to trust the legal system, and facilitate the delivery of legal aid and services to unrepresented communities.
The Bench said that in 1993, Parliament had increased the enrollment fee for general candidates from Rs 250 to Rs 750. At that time, the fees for SC and ST candidates were left unchanged, showing the Parliament’s awareness of the socio-economic challenges faced by these communities. However, the current fee structure actually reinforced the marginalization of SC and ST candidates.
The Apex Court noted that the Bar Council of Maharashtra and Goa charged general candidates a total fee of Rs 15,000, while the SC and ST candidates were charged Rs 14,500. Similarly in Manipur, the general category candidates have to pay Rs 16,650, while SC and ST candidates have to pay Rs 16,050. This minimal difference in fees went against the intent and legislative policy of the Advocates Act, it added.
The Apex Court ruled that the excessive fees policy of SCBs was contrary to the prescribed limit under Section 24 (1)(f) of the Advocates Act and in violation of the principles of ‘substantive equality’ under Article 14.
The Bench referred to the verdict in the Joseph Shine v. Union of India, stating that substantive equality was directed at eliminating individual, institutional and systemic discrimination against disadvantaged groups, which effectively undermined their full and equal participation in society at the social, economic, political and cultural levels
It said Article 14 had a substantive content that mirrored the quest for ensuring fair treatment of an individual in every aspect of human endeavour and existence.
The top court of the country noted that the Advocates Act of 1961 under Section 24(1)(f) prescribed the enrollment fee payable to the State Bar Council as Rs 600 and Rs 150 towards the Bar Council of India for advocates belonging to the general category. For advocates belonging to SC/ST categories, the amounts came to Rs 100 and Rs 25 respectively. In some States, the enrolment fee would go to the extent of Rs 40,000.
It observed that young graduates in general had a slow start in securing financial independence when undertaking work at a meager stipend between Rs 10,000 to Rs 50,000 per month, depending on their location and the chambers they joined.
However, the climb to success was steeper for those from marginalized sections, first-generation advocates, or graduates from non-National Law Universities to gain acceptance in chambers & law firms and kick-start at an advantage, it said.
The bench noted that this struggle was further compounded by language barriers that underprivileged law students such as those from the Dalit community faced in a largely English-dominated profession.
The requirement of paying high enrolment fees created an additional obstacle for these aspiring lawyers. This financial burden disproportionately affected those from marginalized backgrounds, further limiting their access to the legal profession.
the Apex Court mentioned a recent report, which said that many law students from the Dalit community faced English language barriers, reducing their opportunities to practice before the High Courts and the Supreme Court where the court proceedings were in English.
In a legal system predisposed against the marginalized, the pre-condition of paying exorbitant fees in the name of enrolment fee created a further barrier, added the Bench.0