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Saturday, 09 December 2017 00:00
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Sarthak edit

Focus on delivering judgments quickly, not lower lawyer fees

 

Given the huge costs of the justice-delivery system in the country, it is not surprising the highest judiciary, the Supreme Court (SC), wants to find way to reduce that. Yet, instead of focusing on the real costs, the Supreme Court wants to ensure the legal costs are kept to a minimum—meanwhile, under-trials often spend more time in jail than their sentences would have been had they been convicted, and dispute-resolution becomes meaningless if this takes decades. So, SC has called for a law that institutes caps for lawyers’ fees on grounds that the high fees deter the economically weak from seeking legal redress. The Law Commission seems to be of the same view, and in its 266th report, on the Advocates Act 1961 (Regulation of the Legal Profession), notes that “problems regarding the charging of exorbitant fees … resulted in responses urging the need for structuring fee payments as well as capping and incidence of fee payments.” How this will help is not clear since, were such a cap to be enforced—it will, first, be challenged in court—most lawyers will find a way around it.

What is more problematic, though, is the thinking that goes behind such arguments. For one, there are always lawyers who charge lower fees—so people are free to choose those lawyers if fees are the primary concern. To the extent the courts are concerned the truly poor will not get good representation, the government can provide free representation of a better quality. And an appeal to other lawyers to do a certain share of pro bono work is a more sensible approach—an appeal coming from the Chief Justice of India is more likely to find traction among the bigger lawyers.

While lawyers’ fees often look as if they are the biggest component of a legal defence, if the courts did a meaningful analysis, they would find the biggest component is really due to delays running into decades on many occasion. This, and not lawyers’ fees, is what the courts should be concerning themselves with. Fixing this could involves rules about not granting more than a certain number of adjournments in each case, it could involve asking for written submissions that are examined by legal officers that form part of a judge’s team, it could mean hiring more judges … tomes have been written on the subject. Putting caps on lawyers’ fees, on the other hand, looks more appealing since this is visible to everyone. While it is all right for politicians to want to play to the gallery, the Supreme Court shouldn’t fall into this trap and, instead, should focus on the real issue.

 

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