Are ‘Senior Advocates’ out of reach of a common man?

Can an ordinary citizen take the professional services of a Senior Advocate in the High Court/ Supreme Court? Are the Senior Advocates only to engaged by Corporates, Business Houses and the Government as they alone can pay the HEFTY fee charged by the ‘Seniors’? These questions spring up in the mind of every citizen/ common man who dares of taking the professional service of the Senior Advocates.

It is common knowledge that the State is the biggest litigant. The Central/State and it’s functionaries do not accept logical and covered judgements and file SLPs/ appeals/revisions/ writs in higher forums. They engage  senior advocates and pay hefty fee to them which in some cases surpass the disputed amount involved. It is perhaps a spate of obstinacy or passion for victory or an effort to contain/humiliate the opponent.

The Bar Council of India, the governing body of the advocates, the State Bar Councils and the Advocates Act do not provide for any practical rules or standards for charging fee for appearance on behalf of their clients and whatever scanty rules and guidelines exist are never followed. It is not in dispute that Senior Advocates command respect from the Bench and they are indeed magical in cases for admission & grant of stay and it is undisputable that they necessarily have more say in the Courts as the Bench patiently hear them as a mark of respect to the ‘Seniors’.

It is true that in an open economy, there cannot be any control over the fee charged by professionals – advocates, architects, consulting engineers & doctors but there should be reasonability in the quantum of fee payable to a Senior Advocate. But the fee ranging from 10 lacs to 25 lacs per hearing usually demanded by the established Seniors is unimaginable for the middle class or the ‘lower’ rich as neither the stakes are that high nor it is financially possible for them.  Moreover, the Seniors are overburdened and sometimes fail to appear in the Court when the matter is called out leaving the litigant at the mercy of the junior advocates.

It is relevant to refer to a recent Writ Petition filed in the Bombay High Court challenging & questioning the payment of  “hefty fee” paid to a Senior Advocate for representing BMC in actress Kangana Ranaut’s case wherein she challenged the demolition carried out at her bungalow and sought damages. It was pleaded that payment of hefty fee of 82.5 lakhs to the Senior Advocate by BMC was unwarranted and unjustified.

The Division Bench dismissed the petition by activist Sharad Yadav and observed that  it wasn’t within the court’s purview to adjudicate the appointment of advocates and the fees payable to them. The Bench observed that  they were not sitting in advisory jurisdiction but the petitioner could always approach the BMC seeking a cap on the payment made to its counsels.

The fee charged by the advocates from their  clients remain largely unregulated in India although there are rules in this regard but they are only on papers and there is no bar to professional fee claimed beyond what is fixed under the rules. The Supreme Court Rules 2013 permit an advocate to charge a maximum of Rs 8,000 per hearing which is never practically followed.

The Supreme Court is also in favour of  a law to check growing commercialisation of the legal profession and to “prescribe floor and ceiling in fees” to ensure the poor were not forcibly pushed out of the justice delivery system. The Apex Court had time and again expressed grave concern over the “astronomical” fees charged from litigants and have directed  the government to ensure that the poor could get requisite legal assistance from the best lawyers so that their right to equal justice is not violated. It is pertinent that the 131st law commission report had suggested that  like public hospitals for medical services, the public sector should have a role in providing legal services for those who cannot afford high fee. The Court felt pressing need for providing professional legal services to the poor and the needy at standardized/concessional fee. The Apex Court also deprecated  commercialisation to the extent of exploiting the litigant to the extent of affecting the right of a person to speedy and inexpensive justice.

The legal community is  divided on the issue of regulation of fees. Some  advocates are in favour of a cap on advocate fees as they do not wish to become commodities that go to the highest bidder. This faction call for self regulation rather than statutory control.

Advocates are in a noble profession and benevolence is expected from them when a common man wishes to engage them in their cases. It is high time that their quantum of fee and obligations towards their clients should be addressed by the Ministry of Law & Justice, Supreme Court and the Bar Council of India to make them both affordable and answerable.

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