Justice not blind, can spot the rich!
5 Dec 2014 10:44 PM GMT
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 Rs 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. This is particularly because legal representation is directly linked to purchasing power.
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. However, 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 under trails. 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.
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 under-trials 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 under-trials 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 under-trials 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.
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, there is the need for a mediator to bridge the legal world and the common man. 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. Governance Now
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. This is particularly because legal representation is directly linked to purchasing power.
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. However, 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 under trails. 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.
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 under-trials 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 under-trials 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 under-trials 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.
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, there is the need for a mediator to bridge the legal world and the common man. 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. Governance Now
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