While the government may consider such aid by advocates in order to elevate them as judges, its implementation is tough
~By Justice Narendra Chapalgaonkar
The legal profession is one of the most noble. Nobility is not a narrow concept. There are limitless possibilities for noble behaviour by a lawyer. Truthfulness, honesty and correct guidance to the court about a legal position are well-known.
A good lawyer is not expected to refuse a brief merely on account of the inability of a client to pay him adequate fees. Even some busy, senior lawyers do accept briefs without any professional remuneration. The reasons may be varied—he may be convinced about the merit of the case, the inability of the client to pay or have some other convincing reason. Some doctors also give services free.
However, this charity is not advertised and there would be no record of it. Right to life under Article 21 was given an expanded meaning by the Supreme Court in various pronouncements. In Unnikrishnan’s case (AIR 1993 SC2178), the apex court listed such rights and this includes the right to legal aid, a fundamental right. This recognition was followed by various acts, which constituted authorities and committees for complying with the State’s “obligation” to provide legal aid. This institutional aid makes a record of those providing legal aid. Legal aid schemes were doubtless started with good intentions, but it is also undeniable that the best possible advice and assistance from experienced lawyers cannot be made available in many cases.
Another occasion when an advocate has the opportunity to do pro bono work is when he is asked by the court to assist in a matter. If the case at hand is such that further research is necessary and any of the parties are unable to do it or it is felt that expertise is required, the court requests a senior or suitable advocate to do so. The person so appointed is unconnected with the parties who are in dispute. He does not expect any remuneration. Assisting the court at its request is a matter of honour.
There are reports that the government is considering looking into the pro bono work done by an advocate as a criterion for becoming a judge of a high court or the Supreme Court. Law Minister Ravi Shankar Prasad reportedly said: “Our government is keenly promoting pro bono lawyering. Exposure to pro bono lends its own weight.” However, implementation of such a proposal may face practical difficulties. For example, legal assistance in a trial court cannot be put on the same footing as it involves basic legal work such as drafting, making lists and so forth.
In support of this proposal, government sources are relying on a recent order of the Supreme Court.
Designating a senior advocate is at present a matter of discretion of the full house of the judges. They can be presumed to have knowledge of the merits of the applicant. In a motion challenging this procedure, the Supreme Court has indicated pro bono work as one of the factors to be taken into account for designating a senior advocate. The law ministry wants to follow this suggestion when considering a judge’s elevation too.
When a high court considers the suitability of a person for elevation, his work in that court is the main consideration. If he has assisted the court pro bono, his knowledge of law, research and approach are certainly noted. It remains to be seen as to what more the law ministry wants to bring in. If the government asks for a record of the legal aid committees and counts the number of briefs assigned and worked out by an advocate, the exercise is not likely to help in finding meritorious persons for selection. This is because their record will not be known to them that far back.
The system of legal aid itself needs reforms that would make expert advice available to the needy. This can hardly be achieved just by statutory rules. It needs the active participation of lawyers and bar associations.
While there are senior lawyers and doctors who are alive to the financial difficulties of some of their clients and serve them without charging any fees, the record of such goodness is scarcely available.
—The writer is a former judge of the Bombay High Court.