The Indian Legal Profession Has Degenerated Beyond Repair

A new book inadvertently reveals the extent of the rot in India’s judicial system.

On its own merits Indu Bhan’s ‘Legal Eagles’ does not deserve much attention: billed as offering the “stories of the top seven Indian lawyers”, it follows the worst traditions of syrupy hagiography. It is written in highly clichéd language and in that breathless tone of fawning vacuity which characterises so much of popular writing these days.

But the book accidentally serves a useful purpose: it reminds us of the extent to which the noble profession of law has, in contemporary India, become a “conspiracy against the laity”, to borrow the words of Bernard Shaw’s famous jibe. It also, depressingly, has the potential to feed the endless credulity of those who are most likely to buy it.

The book profiles seven successful members of the Indian Bar, all born between 1955 and 1959. Even if not household names, those featured are likely to be recognized by anyone who relies on newspapers – and, increasingly, television – for his or her daily diet of news and information: Harish Salve, Mukul Rohatgi, Abhishek Singhvi, Arvind Datar, Aryama Sundaram, Prashant Bhushan and Rohinton Nariman (the last of whom is now a Supreme Court judge). Why only seven, and why these seven? Attempting to answer those questions would be a mug’s game.

To be fair, some of the lucky seven have impressive credentials. One or two of them have come up the hard way, and they have not forgotten the lessons they have learnt as they climbed the greasy pole of professional success. It has to be conceded as well that all of them are, albeit to varying degrees, capable of spinning more than a passable yarn to win their clients the results they often so desperately seek in India’s sclerotic courts.

That still, however, leaves many important – and uncomfortable – questions to be asked: and those questions concern the realm of ethics and professionalism.

That the Indian legal system is but a shadow of its former glorious self cannot be seriously doubted. The causes for this are too numerous and too complex to be gone into in an article such as the present one. What is, however, noteworthy is the precipitous decline in standards of conduct among lawyers.

For at least four decades now, the Indian legal profession has drifted away so markedly – and so alarmingly – from global norms of quality assurance and best practice that at least two generations of lawyers have grown up without any exposure to meaningful professional regulation.

Consider the following facts. Any country that prides itself as operating an efficient, effective and trusted system for the delivery of justice would require those wanting to become legal practitioners to go through a rigorous process of academic and vocational training.

This includes, at the very least: a challenging course of university-level study that is highly selective at the point of entry and which is subject to a number of quality assurance processes administered by independent, incorruptible and competent external agencies; a robust professional examination in which core competences and skills are assessed on objective criteria; and a period of practical training which exposes the aspiring lawyer to the rough and tumble of life in the profession, as well as to those nuances of legal practice which cannot be learnt in any classroom environment.

Shockingly, India is one of a minuscule minority of countries where a law graduate – often with a third class degree from a dubious law college (and scores of these have sprung up in recent years with political patronage) – is able to start practising without going through any of these filters. Recent attempts to introduce a Common Law Admission Test and an All India Bar Examination have proven to be cosmetic exercises as even a cursory glance at their respective syllabi would indicate.

For all practical purposes, therefore, all that a candidate needs to do to start appearing in the Indian courts, including at the highest levels of the hierarchy, is to enrol himself with one of many State Bar Councils – a mere formality involving the completion of a form and payment of a nominal fee. The consequences of this lax approach for the litigating public – and for the administration of justice – can easily be imagined.

As if that were not bad enough, the Indian legal profession has exposed itself to ridicule for another, more egregious, reason: it has to do with the fact that once a candidate enrols himself as an advocate, he gets an open-ended licence to practise law for life.

There is no requirement of periodic renewal of registration, as is the norm in all respectable jurisdictions including those with legal systems that are far less developed than India’s. Not only does this present serious dangers for litigants, but it also has the curious effect of preventing even the Bar Council of India – the ostensible regulator – from having an accurate tally of lawyers who are actually in practice at any given time (among other things, the regulator would not officially know if a member has discontinued his practice, or has even died!).

There is also, of course, no requirement for continuing professional development for lawyers, whether on a voluntary or a mandatory basis: another area where India has set its face against global good practice.

The combined effect of these travesties is that an entire army of barely literate, untrained, half-baked and ethically challenged men and women have been let loose on the nation’s courts, there to play havoc with momentous issues touching the life, liberty and property of millions of their fellow countrymen.

Nor do the inequities end there, because the same murky pool also serves as the catchment area for the nation’s judges. Is it any wonder, then, that the Indian judiciary finds itself in the almighty mess that has made it the laughing stock of the civilised world?

Against this backdrop, it would be tempting to look up to ‘star’ lawyers such as those represented in the present book as knights in shining armour who can be relied upon to tidy up the mess. But that would be a mistake. For a start, and cruel though this may sound, many of these stars are not what they are cranked up to be.

Stories abound of fashionable counsel accepting briefs and not turning up at hearings – or when they do deign to turn up, of coming unprepared; billing for work that is not carried out; treating their clients with utter disdain; and generally showing scant regard for even the basic norms of professionalism.

What passes for courtcraft is also depressing: gone are the days of reasoned, erudite arguments presented in a civilised manner; they have been replaced by shouting matches, flailing arms and constant interruptions which make courtrooms a far cry from the temples of justice they were envisaged to be.

The rapacity of some star lawyers is another indication of the extent of the rot that has set in. Even the most ardent supporters of the free market would blanch at the sums that are being charged by way of professional fees in recent years, usually on the spurious justification that, if the market can bear such fees, it would be unfair to blame the lawyer as being grasping. Among the many fallacies of this argument is that the market in which Indian lawyers operate is a rigged one: even the slightest attempt at introducing competition – e.g. through the entry of foreign lawyers – is resisted with a ferocity that is as disquieting as it is scandalous.

In a country which has about a third of the world’s poorest people, can there ever be any justification for a lawyer, however competent, to charge a daily fee that exceeds the annual salary of the country’s chief justice? A particularly shameful irony of the situation is that many of the usurious lawyers wear their earnings as a badge of honour rather than something to be embarrassed about. One of them was brazen enough to boast in an article which appeared in an American academic journal a few years ago:

Lawyers like me charge the sky. It is a way of filtering clients.

The concept of customer service (or ‘client care’ as it is called these days) is furthest from the minds of these lawyers. The consequences of such behaviour, alas, go well beyond personal self-aggrandizement: they contribute, directly and substantially, to the growing decrepitude of the Indian legal system.

In the face of this reality, can there be any justification for books such as the one under review? The mindless fawning, the misguided deification, and the complete lack of balance are, at one level, nauseating; at another level, they are a sad testament to the depths to which Indian society has sunk over the years.

It is a safe bet that copies of this dubious volume will soon find their way to many a lawyer’s waiting room in Delhi or Bombay; they are also likely to feature prominently in the Diwali hampers sent out by a few ‘eminent jurists’ this year!

Legal Eagles: Stories of the Top Seven Indian Lawyers, Indu Bhan, Random House India, 2015