Cost of Justice

by October 22, 2018 0 comments

Cost of JusticeThe apex court’s request to make a law to control the legal situation may stay inactive as legislators themselves are polished lawyers who charged excessive fees for their services.

A lawyer, like an engineer, constant upgrades and builds the society. A lawyer, like a medical practitioner, chronically rehabilitates and heals the impairment caused to the society. They ease the pavement of justice to the citizens and are trusted with fate to uphold their rights and claims. In recent times it’s their paychecks which demand the respect attached to their profession and not their integrity and valor. Should they as justice laborer be paid an exorbitant fee of seven figures? The ongoing struggle of this country has been to make justice accessible to all its citizens. For six decades, the state has been following the fundamental duty to ensure justice for all. The biggest barrier between a claim and its settlement is the fee of the lawyer in this country. And the biggest attraction for admission in this industry is also the same fee.

AK Goel and UU Lalit in B Sunita V/S State of Telangana proposed the legislature to opt for flooring and ceiling of a fee of advocates. The respondent alleged that the fee charged by her attorney was exorbitant and in violation of the ethics propounded by the Bar. Any claim upon the damages awarded by the court is also in violation of the Advocates Fee Rules.  The judgment further throws light on the 131st report dated August 31, 1988, by the Law Commission, which suggested for regulation and standardization of fees by the member of the legal profession towards the monopolistic characterizer of the profession. It was further interpreted by the court that there is a dire need to strengthen the mechanism to deal with professional misconduct by members of this profession. It was concluded that the success of the administration of justice to a great extent depends on the successful regulation of legal profession confined to the mandate under Article 39A, which promises equal operation of justice to all. As a result to such interpretation, the court urged the Parliament to form a legislative framework for flooring and ceiling the fee charged by lawyers.

Many countries, such as Germany, Australia, Costa Rica, Finland etc, have adopted a model of remuneration fee for the advocates. This implies that the parties engaging the services of a lawyer have an already printed fee structure as per the demands of their legal dispute. Such a framework allows a person to stipulate what is the cost of litigation for their dispute, which is an effective determinant of to-sue-or-not-to-sue.  Given the competitive attitude prevailing in Indian markets which exploit the competition, such a framework can drastically help cultivate basic sanity and merit of this profession. It is provided that an advocate is not to charge below a certain fee for a certain work by their clients.

Although the Indian market can also welcome price ceiling in such a framework, the professionals practicing law charge an exorbitant cost for their services. A legislation ceiling their fees will not make just make justice reasonable but more approachable. Article 19 (1)(g) gives the right to every citizen to carry any profession, practice or trade. It is an understated fundamental right because 60 years ago, not every citizen had such a right. However, if constraints are to be put on the rewards of any profession, do we as citizen truly have the freedom to practice it? Is ceiling and flooring of remuneration awarded to the advocates a reasonable restriction?  According to Article 19 (6), the state has the power to put a reasonable restriction on any profession in the interest of the general public. The term reasonable is defined by many jurists, which primarily suggests that restrictions imposed mustn’t be arbitrary, should be proportional to the object sought to be fulfilled by the law and justifiable. To combat the need for this restriction, an analysis of the framework is drawn below:

Arbitrariness: A legislative framework embodying the spirit of regulations of other countries is far from being arbitrary. Law of remuneration of Attorney, 2004 of Germany, Legal Profession Uniform Law Applicable Act, 2014 of Australia, Advocates Remuneration Order, 2015 of Kenya, Advocates (remuneration and taxation costs) rules of Uganda etc, can form the outline to design the remuneration code for a fee of an Attorney in India. These regulations not only give a precise monetization of every service provided by an advocate but also allows the parties to the contract to negotiations a higher remuneration by consent.

Proportional to the object sought to be fulfilled? Price ceiling and flooring has to be done on the basis of current trends and demands of the industry. It shall be done by respective states as the cost of litigation varies inter-state. It would also need regular revision in accordance with the inflation rate. A rationale fee structure needs to be created after a thorough analysis of the pay scale of this group and the purchasing power of its consumers which is not discriminatory to either.

Justifiability: The profession of law provides a mechanism to shape the norms of society. It ought to be outrageously rewarding. With legal aid programs and pro bono schemes, there should be no need to restrict the remittances. Nevertheless, for a person of socio-economic class, the services of a lawyer are considered luxury for its costs and schemes. This regulatory framework shall be seen as an approach to make justice more accessible for every strategy of the society and not just the needy. A profession of such sanity shall not remain within the fancies of the wealthy.

A suggestion by the apex court might remain dormant as the lawmakers present in the Parliament are themselves decorated lawyers who have charged to the sky for their skill and association. It would rather be surprizing if they can fathom the plight of the citizens they work for and make changes to make litigation inexpensive. Regardless, it’s a commendable insight pioneered by the apex court in pursuance of its function of promoting justice.

(The writer is a fourth-year law student of Vivekananda Institute of Professional Studies, New Delhi)

Writer: Pranav Wahi

Courtesy: The Pioneer

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