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| @ | April 28,2019

A few months back I invited the ire of corporate lawyers and law firms when I ranted on the coveted  “awards” they seem to get ‘honoured’ with and the A lists that conveniently made their social media presence even more ‘client worthy’!!  Now even sitting judges are being ‘awarded’!  Well, I guess that death wish continues, as a little patience on your part and further reading of this piece shall reveal.

I have often written about the quaint and medieval traditions generously introduced by the civilizing English which we have continued and even strictly enforced in our legal system.  The Calcutta High Court Chief Justice still has to wear that ancient, perhaps pest infected, wig on ceremonial occasions and we have to be in black, still mourning Queen Mary’s passing (1694) as the Inns of Court had forgotten to rescind the resolution mourning her demise.  Some attribute this to Queen Ann (1714) while others to Charles II (1685).

The celebrated legal accessory maker of London “Ede and Ravenscroft”, (incidentally made more famous in the non-legal fraternity when Barrister Amal, married to Hollywood’s George Clooney, patronized its stuff) has come out with a delightful research paper on the history of the wig and the gown.

While wigs can be traced to 300 BC, they became popular in the Royal Court with Henry III of France.  Elizabeth, the ‘virgin queen’, across the channel also sported a red wig.  During Lord Protector Cromwell’s reign, when Prince Charles took refuge in France after his father’s head went at the chopping block, he took to wigs with great enthusiasm and brought this to the English Court on his return as Charles II.  By the nineteenth century, only three classes in England still sported wigs – doctors, clergy and of course, lawyers.  On June 4, 1635, rules were framed by English judges permanently incorporating wigs as part of the judicial uniform.

Then there is the “band” and the “gown”.  The former looks eerily similar to a “forked bib” and the latter like a superhero’s most famous accompaniment.  I remember once when I was passionately trying to appeal to the court of last resort that workmen who had been kept as temps by a PSU for 35 years deserved some justice, the judge pointed out to me “your gown is falling from your shoulders”.

By the later part of the 14th Century, Judges and ‘Serjents at law’ (equivalent to today’s barristers) wore a wide-sleeved knee length costume called “collobium”.   In the Tudor Period, the closed front of the robe was replaced with an open front.  By the 16th Century, all Inns of Court mandated the wearing of gowns. Sir Henry Chauncy (1632-1719) was perhaps the first to notice that barristers wore a “noble robe” with long sleeves.  This metamorphosed with a back flap as the Queen’s Counsel’s gown which British India’s legal system gifted to India as the costume was worn even today by those lawyers who have been designated as “senior advocates” by the Supreme Court or the high courts.

Incidentally, this “noble robe”, which could be stylized velvet for only Law Officers of the Crown (our equivalent being Attorney and Solicitors General) or King’s Counsel (our equivalent being Senior Advocates), became merely an “ignominious habit” when they acquired a funereal colour on the death of Charles II.

 

The institution of senior advocates

 

Before I get carried away any further and this starts taking the form of a boring write up on legal sartorial history I better straight away come to my point.  I examine the institution of “senior advocates” and the plight of “juniors” in our bar.

The Advocates Act, 1961, which attempts to regulate the legal profession in India, “classifies” advocates as “senior advocates” and “other advocates” (s.16).   I am an “other advocate” and so I must caveat that what I say may have a tinge of sour grapes and you might want to keep your pinch of salt nearby.

The Act says that “an advocate may, with his consent, be designated as a senior advocate”, if the Court was of the “opinion” that he was “deserving of such distinction” on account of his “ability”, “standing at the Bar” or “Special Knowledge or experience”.  Senior Advocates are supposed to not interact with clients or directly file cases for the clients and not draft pleadings.  They bring a detachment and a high level of calibre to the case at hand and courts instinctively accord respect and trust on such a class of lawyers.

In Indira Jaising’sCase (my respected senior whose name now adorns more than one landmark case, another being on the right of a senior lawyer to access a report into an investigation of judicial impropriety), the Supreme Court attempted to sunlight the system.  It gave the blueprint for a “transparent” marking system where candidates are graded on several aspects including pro bono work and publications.  In the months that followed, the literary burst of talent amongst our legal fraternity was not coincidental! The judgement also provided for a collegiate body having stakeholders such as the law officer as well as the bar representative, to vet the applications for designations.   It mandated that names of applicants be published for all to see and perhaps, like the doctrine of marriage banns to “forever hold your peace”.

The greatest challenge for the court was to rescue and actually insulate a process which, if court corridor whispers were to be believed, had become synonymous with patronage, favour-doling and quid pro quo.  Would the solution of a public spectacle bring in transparency or accountability without actually robbing the process of whatever little dignity that was left in it?

Perhaps even the top court had not anticipated the deluge that would follow when the dyke gates would be opened.  More than 100 applications followed.   The case-specific consideration on set parameters would be impossible as the Judges were already overburdened with several judicial and administrative responsibilities.   What followed was a set of communal interactions which also came into hushed criticism in court corridors.   The rest is history.   The Jaisingcase had a notable commission.  While it meticulously set out criteria and weightage, it was eloquently silent on “pass marks”!   The top court passed many an applicant and there were celebrations all over overlooking the occasional raised eyebrow!  Sadly, corridor gossip and conspiracy theories are immortal and even such an exercise could not vanquish them.

 

“Bedevilling” and the hapless junior

 

System insiders, and now increasingly the non–legally literate general public, have come to accept that the distinction between senior and junior is not simply one of extra clothing – a back flap or longer sleeves.   In matters of court time as well as fees there can be no match even between these two.  Today, the asking rate of established seniors even for a

few minutes court time is mind-boggling. Workers, women in abusive situations, Dalits, farmers or tribals or even regular middle-class people cannot even think of engaging such lawyers.

The concept of a senior counsel was born with the idea that legal experience of a ‘senior’ lawyer would render that quality assistance to the court in its effort to evolve the law at the macro level and to render justice at the individual plane.

Time has come for introspection by the entire bar and the bench on how intact this edifice is or will it be said that this institution of classification is a testimony to the fact that justice even today has not completely lost its eye-sight.

Many courts are now making rules to mirror the change at the top court.  Undertakings shall be required from prospective seniors to commit themselves pro-bono work.  While this is welcome, shouldn’t it be retrospective?   What is pro bono work?  If one appears for a labourer or a woman facing domestic violence and charges a pittance of a fee to give the client a sense of dignity and a voice – is that not pro-bono?

While crores are spent on bar council and bar association elections, not a moment will be spent on even discussing a ceiling on seniors’ fees or minimum fees for the struggling junior bar.

In fact, while the courts happily fall back on British traditions to uphold costumes which set apart senior lawyers, the same Isles also inspires another horrific practice when it comes to juniors.  This is called “bedevilling”.  When I quit a corporate assignment and “jumped into litigation”, my middle-class parents were in shock as I had chucked the campus’ highest paying job to opt for a senior who agreed to pay Rs 5000.  Truth be told, this manifold reduction in pay was a major improvement from my attempts to first secure a job in Calcutta!   What was on offer was Rs 400 as ‘tea allowance”.   As you may have guessed from the drift, “bedevilling” was the English custom of “learning on the job” for free.  The young lawyer at the Inns of Court was like the apprentice who could not expect to be paid.  In fact, he was getting an education with his “boss” for free.

 

A time for introspection

 

Sadly, the situation remains the same.  Even though big law firms with attractive opening offers have tried to spike the market, the starting pay in a litigator’s office continues to remain at an abysmally low level.  The standing joke is that the beginner lawyer with an LLB degree earns even less than the 12th pass clerk at her chamber.  While seniors in the Supreme Court are now heard to even charge 30 lakhs for a single appearance, a crore for the outstation high court, a beginner lawyer would consider herself lucky if she even makes Rs 15,000 in an entire month.

Without a powerful benefactor or a top law school tag, making ends meet is a challenge for many a young lawyer.  Also, while under the Advocates Act, now slowly the “Welfare Fund” is taking shape, however, we are decades away from a system which would have group insurance, minimum stipends or placement cells for young members of the bar.

The Wig and the Gown have come to be symbols of what makes the modern day justice system so anachronistic.  As it is, India is a merit-averse society, the judiciary seems to be no exception. From the fact that we are yet to get over the death of Mary or Charles, centuries and continents apart, you can gauge how inert the justice delivery edifice is to any agent of change.

While the Cornelia Sorabji’s of today may not be sent away from the gates of the court,  we are still a long way from when each would be able to aspire to reach the heights of the legal profession without sacrificing one’s conscience, without having to network and seek out connections and godfathers.

While change may elude us in our lifetime, we need not wait for a systemic overhaul.  Let each of us start with our own chambers.  Let us pledge that we will never discriminate – that in our office, the young and the old alike would be respected, the outsider/ insider both encouraged.

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