By Dr Swati Jindal Garg
Empathy is a quality of character that can change the world. These words said by Barack Obama could aptly describe today’s scenario regarding the payment of stipend to newly-enrolled advocates.
This issue once again came to the fore when a public interest litigation (PIL) seeking a minimum stipend of Rs 5,000 for newly-enrolled advocates was filed before the Delhi High Court. The Court has appealed to the senior advocates to be more empathetic and provide a sufficient stipend to junior advocates.
The matter was taken up by Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, who passed certain observations while hearing a 29-year-old advocate’s PIL seeking a direction to the Bar Council of India and the Bar Council of Delhi to pay the stipend. The judges observed that young professionals in medicine, chartered accountancy, architecture, engineering, etc also faced problems similar to the ones faced by young advocates. The Court held that while exercising its writ jurisdiction, it could not single out the legal profession alone and hold that only young advocates have the right to claim a stipend.
Even though the right to a decent life has been given the status of a fundamental right under Article 21 of the Constitution, yet it cannot be stretched to encompass in itself a right of an advocate to claim a monthly stipend from the bar association, the judges said.
Looking at the larger picture, it cannot be ignored that the practice of law is not a business where the main motto is profit earning. It is rather a profession in which duty to public service, not money, is the primary consideration. Time and again, it has been held by the courts that the making of livelihood should be a secondary consideration of advocates who must think of the society first and subordinate their own interests.
The courts have also held that “members of bar are not a guild of candle makers or butcher’s association. They are a class separate.”
The great Soli Sorabjee, however, had very candidly put forward the flip side of a lawyer’s life by saying that “at present, the public image of lawyers is far from flattering. They are seen as fortune seekers rather than seeking to serve, a selfish class, who, on account of the special knowledge and expertise, provide services on such terms as they please.”
The sad reality is that lawyers as well as other professionals like doctors have forgotten what is entailed in a profession and their proper role in society. According to the Webster Dictionary, profession has been defined as: “calling requiring specialised knowledge and often long and intensive preparations including instructions in skills and methods… and committing its members, to continue studies and to a kind of a work which has for its prime purpose the rendering of public service.” In laymen’s terms, the requirements of a profession can be broadly categorised under three heads namely:
(i) organisation,
(ii) learning, and,
(iii) a spirit of public service.
These three are said to be the essentials while the remaining idea that is earning of a livelihood is only incidental.
The main difference between a business and a professional practice is also that. While the chief end of business is personal gain, the main goal of profession is professional service.
The recent trend that is being observed, however, is that the new entrants in the legal practice have started operating on the law of demand and supply, taking up their areas of practice based not on their interests, but on the amount of money that can be earned in each area, and it is due to this reason, that the legal practice has taken on the hues of commercialism.
Today, the fees charged by some seniors in the Supreme Court are enormous. Lawyers charge fee even when they have not put in an appearance and it is a disgusting sight to see some lawyers plead with the judge to record their appearance to enable them to collect fees from their absent clients. The same lawyers, on the other hand, also shy away when it comes to paying a decent stipend to their juniors. Their stance is that the juniors need to learn to earn their way in the profession and also that they are only following orders, and sometimes not even doing that properly while the main work is done by the senior himself. They also say that most of the times, it takes even more effort for a senior to set right, what has been wrongly done by a junior that it discourages them from sending the juniors for any kind of small arguments, let alone the main ones.
The crux of the matter is that no one wants the lawyers to stop charging anything at all, as we all know that free wares are never appreciated and merit always demands credit—and what better way to give credit than to give it in the form of a good fee—but they need to remember that their main purpose and desire should be of rendering service to those who seek their aid and also to the community of which they are a necessary part rather than amassing huge wealth for their future generations ( a successful lawyer hardly has any time to ever enjoy his own wealth anyways!).
Time and again, courts have passed orders suggesting that senior lawyers should make endeavours to train a certain number of juniors and give them due opportunities and stipend, but till date, no one seems to be following the same. The right approach would be for every lawyer to give some time to pro bono work and set aside a portion of his earnings for adequate and due payment for the work done by his juniors—something akin to the CSR responsibilities taken up by corporate companies.
Another way is that the bar councils of various states should take active steps towards fixing an amount for advocates who have less than, say, five years of standing and are in need of financial help. It has also been seen that instead of aiding the new entrants, the bar councils are further increasing the load on the freshly inducted advocates by demanding a very steep fee for enrolment from them—an act that is hugely unfair considering that these professionals have not even started earning till that time.
A survey conducted by the Vidhi Centre for Legal Policy showed that more than “79% of the advocates across seven High Courts with less than two years of legal practice at the Bar are earning less than Rs 10,000 per month”. These are statistics that clearly depict that in order to improve the quality of the advocates in the field, it is imperative that they are not forced to get into activities bordering on misconduct just so that they can survive. All possible help should and must be given to them so that they can engage their minds for what they have been trained for, rather than on the issues related to survival.
Justice KV Krishnaswamy Iyer calls the legal profession as “the most brilliant and attractive of peaceful professions, with responsibilities both inside and outside it, which no person carrying on any other profession has to shoulder”. While addressing the question of practice of legal profession, he also goes on to say that an “advocate has to deal with the greatest possible variety of human relations and has his mettle constantly tried from every direction. For the same reason, an advocate earns great social distinction, which ought not to be misused at any cost.”
The underlying ethos of the legal profession is the service to society, akin to that of a doctor. The aim is to protect citizens from social diseases. The purpose of law in society is to preserve the moral sanctity that binds the society. Therefore, the legal profession is considered a noble profession as it is the upholder and protector of law. It is a service-oriented profession which aims to serve society.
This is the reason why every law school curriculum has an important paper on professional ethics, where young minds are taught the importance of upholding the ideals and ethics of this profession. This is very important because good ethical practices need to be inculcated so that young professionals perform their duty in justice dispensation. It can never be forgotten that the legal profession has a social dimension and every lawyer has a social role to play in the society; care needs to be taken by all those who have already been a part of it for some time to make sure that the incumbents are not made to leave due to despair and destitution.
—The writer is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi