Lawyer Abhishek Manu Singhvi’s ‘termite tales’ brought much needed attention on the volumes of money involved in legal representation. His failure to produce proof of expenses in the filing of his income tax (IT) returns, he claimed, was down to a termite attack on the premises of his chartered accountant in December 2012, which destroyed documents and vouchers.

Singhvi also declared that he had bought computer laptops worth '5 crore for 14 advocates and professionals working with him. At an average cost of '40,000 per laptop, the lawyer can be estimated to have purchased 1,250 laptops.

The department was not impressed. It levied a penalty of about '57 crore on him for assessment years 2010-11, 2011-12 and 2012-13. Though the Rajasthan high court later stayed the penalty, another matter had crawled out of the woodwork. The Jodhpur income tax commissioner discovered cash withdrawals from Singhvi’s accounts during the period, ranging from '7 crore to '32 crore.

The noted lawyer and Congress spokesman said the money went into paying the fees to his legal assistants. When such large sums of money are explained in unaccountable ways by one of the country’s best rated lawyers with a keen eye for detail, it raises eyebrows. Particularly, because legal representation is directly linked to purchasing power.

“Introduce free legal help”

There are so many corporate cases in the courts and the outcome of a case substantially depends on the calibre of the lawyer. Sometimes it depends on the lawyer’s relationship with the judges. They have, therefore, started charging very high fees, uniform for everybody. Most of them are, thus, accessible only to corporate tycoons. Then there are a large number of lawyers who are not so much sought after by the corporates and yet their fees are so high that they too remain inaccessible to the common man.

The legal and judicial system should be able to function without the help of lawyers. So people can approach courts directly and the state can support them with paralegal help. We need to simplify court procedures. Also we need to have judges who are capable of and willing to listen to litigants directly and provide them paralegal help.

Putting a cap on lawyers’ fees will not help. Even if the limit is '1,000, many people cannot afford that. The better solution would be legal aid committees. We need paralegal staff to help litigants in every court and we also need simplified procedures so that even illiterate people can handle the case directly. There is no reason why a court should not accept oral applications, since these can be recorded.

There is a code of conduct by the bar council but, like the medical council, it is non-functional. This is an elected body of lawyers but they play politics like politicians. Those lawyers who are not professionally sound can afford to spend so much time campaigning for bar council elections. These organisations are not dominated by professional lawyers or doctors barring few exceptions.

Majority of people in jails are undertrials. They have either not been able to get bail or they have not been able to find sureties. In either case, it is a failure of the system. It is the job of the court to ensure that people are not arrested unnecessarily. But arrest has become a weapon to extort money. Those who are arrested are entitled to bail – denied in only three cases: if there is good reason to believe that the accused will flee, or the accused can repeat the crime, or influence the case. By and large, these factors do not apply in most cases. Then, the bail is not granted to a large number of undertrials? Courts ask for sureties that the poor cannot afford, leaving many to languish in jail for years.

Prashant Bhushan, lawyer, supreme court of India

India’s constitution, the longest of its kind in the world, guarantees equal protection of rights for every citizen. But in India’s legal system, some are more equal than others. The common people may not have access to legal recourse because availing competent legal representation is beyond their limited financial means. Whereas justice may come readily for those with unaccountable income, which is disproportionate to their known sources of income.

Justice is tied to purchasing power
If you ask around about the ‘cost of justice’ in legal circles, especially when it has to do with the supreme court of India (SC) and Delhi high court, you will find the litigation costs are extortionate. Three years ago, a reputed SC lawyer charged '30 lakh per hearing, and a private chartered plane to fly to Chandigarh to argue the case in question.

Even when no travel is involved, the top 20-30 lawyers in Delhi charge not less than '5 lakh for a five-minute hearing. “Such astronomical amount of lawyer fee cannot be afforded by all and render many helpless,” says professor Upendra Baxi, a former vice-chancellor of Delhi University and a veteran legal expert.

“Not just the poor, even the middle and the upper middle class, with not-so-deep pockets, have financial limitations while hiring a senior lawyer in higher courts,” he underlines. Several big corporations have made critical investments in the free Indian market and are willing to pay exorbitant fees to expert lawyers to represent them, he adds.

Prashant Bhushan is a top SC lawyer who fights several cases pro bono, many of which arise out of his own public interest litigation (PIL) on complaints against large corporates and the government. He echoes Baxi. “There are so many corporate cases in courts and the outcome of a case depends substantially on the lawyer’s calibre. Good lawyers are very costly to hire. We need to consider the capacity of the common men and women to cope with such usurious fee,” he says.

“A man with means can secure his liberty and a man without means cannot,” says RS Sodhi, a former judge of Delhi high court.

“Take the cases of convicted people and undertrails. Most of them are people who could not afford a lawyer or could not go to higher courts.”  A majority of them cannot afford to hire a lawyer, and the free legal aid services given by the state either don’t reach them or the quality of legal aid is poor. The constitution mentions equality before justice, as also the state’s responsibility to provide free legal aid to those who cannot afford it.

“Different laws for the poor and the rich”

About 80 percent of prisoners, who are undertrials, belong to the lower strata of society. Why don’t they get bail? Justice is not accessible to them. Some people get bail easily in the same situation.

As for those convicted, most are people who could not afford a lawyer and could not go to higher courts. Evaluation of evidence is very subjective, depending upon how the judge looks at a particular evidence. He may act with bias in hearing cases of persons with means and persons without means.

The situation is even worse in higher courts. Some judges come with preconceived ideas and ideologies. This will reflect in the number of people convicted. The supreme court’s condition is even worse.

Let us take judgments about bail. There are at least 1,000 judgments granting bail and 2,000 judgments denying it. Why so, if it is the same court?

It’s a very complex system. You are dealing with variables. A human being is a variable, and everybody is different. You are trying to rationalise it by having a single law. Laws should be different for the poor and for the rich. Take the case of Sanjay Dutt who was treated with kid gloves. Poor people know that they have to suffer even if we have a good judiciary.

Justice RS Sodhi, Former Judge, Delhi High Court

In limbo in perpetuity
The Commonwealth Human Rights Initiative (CHRI), an NGO, set up a legal aid clinic in Jodhpur central jail in Rajasthan. What they found was telling: out of 473 undertrials interviewed inside the jail between August 2012 and December 2013, 227 – that is, almost half – did not have lawyers to represent them or did not know whether they had one or not.

“We find that though there is provision of free legal aid to those who cannot afford a lawyer, the aid reaches very few. Also, even if the legal aid kicks in, it comes late, definitely not as the early safeguard that it was intended to be. By then the undertrials would have spent unnecessary and longer periods in detention,” says Sana Das, coordinator, prisons reforms programme at CHRI.”

According to a February 2014 report of the parliamentary standing committee on law and personnel, prolonged and costly litigation is a major reason for over two crore pending cases in India’s subordinate courts. The National Crime Records Bureau’s (NCRB) latest data shows 2.8 lakh undertrials languish in Indian jails, about two-thirds of all prison inmates in the country.  Over 3,000 of the 2.8 lakh under trails have been behind bars for more than five years.

And on the other end of this spectrum is former Tamil Nadu chief minister J Jayalalithaa, convicted and sentenced earlier this year on charges of corruption. She is out of jail even after her conviction, because Ram Jethmalani, one of India’s highest paid legal minds, argued her case in the supreme court and got her a two-month bail as well as a suspension of her sentence.
Current estimates put the overall pendency at about three crore cases, including more than 40 lakh cases pending in the high courts and close to 70,000 in the supreme court.

To get a closer look at the consequences of pendency, let us wind the clock back to the year 1993, when Gurgaon in Haryana was just an upcoming suburb of Delhi. A slew of upcoming residential and commercial spaces were being announced by private developers who pitched Gurgaon as an affordable alternative to the space crunched Delhi and its spiralling real estate costs.

20 years of nothing
Brigadier Madanjeet Singh had retired recently after serving in the army’s medical corps for 35 years. He wanted to invest his life’s savings to secure a good living space for himself and his family. He invested in a DLF residential project in Gurgaon with a promise that he would get possession of his flat in three years.

That was 1993 and Singh was 60 years old. Two decades later, at the age of 80, he is still fighting a legal case with DLF in the supreme court. He lives with his son in Delhi, where he told Governance Now that he refused to pay escalation charges of '4.5 lakh that DLF raised at the time of possession (which was already delayed). He thought he deserved better; he sought justice from the courts.

“Other allottees joined me. In 2006, the Monopolies and Restrictive Trade Practices Commission ordered in our favour, but DLF challenged the order. Several allottees buckled under the pressure and paid up; I decided to fight on. The matter is now in the apex court,” he says. But probe him for a little bit and the former soldier confesses that he has lost the battle deep down inside of him. Not because he has run out of patience; because he can’t afford the litigation cost any more.

“I have made countless visits to SC. Not a single court argument has taken place so far in my case. I cannot hire an expensive top lawyer who could bring any difference to the fate of my case. I cannot afford the litigation cost. I couldn’t have afforded to come so far but for the financial support from some NGOs and well-wishers. But the strategy seems to be clear. They have been probably waiting for me to run out of money or die of old age,” Singh says.

From the plight of an old soldier to another vulnerable section: labourers. In July, 2012, about 150 workers of Maruti Suzuki India Limited’s Manesar-based plant in Haryana were arrested for violence during a labour unrest that led to the death of a manager from the company’s human resources department. Rajendra Pathak was one of the first lawyers to volunteer legal representation to the casual workers. Pathak tells Governance Now how the state government hired hotshot lawyers like KTS Tulsi to represent the prosecution. On the other hand, he says, several workers cannot afford to even pay sureties on their own for getting bail.

A questionable genesis
The law commission of India’s 230th report, titled ‘Reforms in the Judiciary’, states that India draws its legal system from the erstwhile British colonial rule. After the revolt of 1857, when the British rulers began building India’s legal set-up, they moulded it on the lines of practices in the UK. The law panel said that since the laws were drafted in English and the proceedings of the court were highly complicated, confusing and expensive, the “English illiterate Indian” public found it difficult to get access to the justice delivery system. Hence the need for a mediator to bridge the legal world and the common person.

This mediator – the lawyer – has a social responsibility to help the ignorant and the underprivileged, the commission notes. To expect such nobility from lawyers is a problem, says Prashant Bhushan: “We need to grow a legal and judicial system that can function without the help of lawyers so that people can go directly to the courts. States should help them with paralegal support, if necessary. We need to simplify legal procedures.”

Meanwhile, the SC has asked the centre to respond to a petition for establishing a National Court of Appeal (NCA) with benches in state capitals and other cities. This court, it is understood, can take all appeals of high court orders, ensuring better access for litigants without having to travel to Delhi. This is expected to reduce the cost of accessing justice. 

The story appeared in December 1-15, 2014, issue