Alok Prasanna Kumar
This is the first article for a monthly column that looks at the numbers related to the law and courts to see what they can tell us beyond anecdotes and one-off incidents about the way our courts, legal institutions and the profession work.
Adam Smith, in An Inquiry into The Nature and Causes of the Wealth of Nations, had something very interesting to say about the profession of law. It bears quoting in full:
“The probability that any particular person shall ever be qualified for the employment to which he is educated is very different in different occupations. In the greater part of mechanic trades, success is almost certain; but very uncertain in the liberal professions. Put your son apprentice to a shoemaker, there is little doubt of his learning to make a pair of shoes; but send him to study the law, it is at least twenty to one if ever he makes such proficiency as will enable him to live by the business. … In a profession where twenty fail for one that succeeds, that one ought to gain all that should have been gained by the unsuccessful twenty.”
This passage seems to justify the fears of those who tried to dissuade some of us from taking up the legal profession without any “backing” in the form of family connections to it. Indeed, if anyone wishes to dissuade someone from taking up the profession of law, this would be a great passage to quote as an appeal to authority.
But the legal profession in India, as we know it today, is a far cry from what it was in 18th century Scotland and England. Lawyers perform a range of services of clients from due diligence to advocacy to lobbying to drafting complex commercial contracts. What relevance does this have to the legal profession in India in the 21st century?
If Adam Smith were, for some reason, to walk into an Indian court in 21st century India, he’d sigh at the familiarity of it all. Save for the wigs and handwritten documents, almost nothing about the average modern day Indian courtroom would feel alien to him. The practice of law too, with the black gowns, the small individual practices, the tiny chambers allotted to advocates in court complexes, among other things would not feel out of place to him. He would also note, with some familiarity, the vast number of advocates who mill around court complexes with little or no daily work.
If Adam Smith is right, of India’s approximately thirteen lakh advocates registered with the Bar Council of India (as of 2011), only a small fraction are actively working full time as advocates and only a small number making anything like a living from the profession itself.
Evidence for this comes from the data concerning Advocates on Record in the Supreme Court of India. As of June 2017, there are only 2005 active advocates on record in the Supreme Court of India – a position that requires one to have five years of practice, one year of apprenticeship and pass marks in a difficult examination. However, of 46,471 cases filed in the Supreme Court in the year 2014 (as seen from data collected by the Vidhi Centre for Legal Policy), only 131 advocates filed about 23,040 cases, i.e about 6-7% of AORs filed nearly 50% of the cases. This means that approximately the top 7% of the AORs file almost as many cases as the remaining 93% of the AORs. The overall number of AORs may have been marginally fewer in 2014 since more AORs have been added in the last few years but the fact remains that nearly half the AORs did not file single case in a whole year. Given also that 60% of the cases in the Supreme Court were dismissed in limine in 2014, individual cases are unlikely to have provided too much income to the AORs in question, after deducting expenses. The median AOR, among those who have filed at least one case in the Supreme Court, files 22 cases in a year of which 13 are dismissed in limine.
It’s not just a feature of the Supreme Court alone. The picture is pretty much the same in the district courts as well. This is seen from the data that Indiankanoon has been collecting about hearings in trial courts and Sushant Sinha, its founder, shared data of about 2,13,935 cases filed in the subordinate courts (district and magistrate courts) in Bengaluru in the years 2015 and 2016. Some 18,243 names of advocates and law firms appear in these cases and the break up is interesting. This includes both cases filed on behalf of plaintiff/petitioner/appellate and appearances entered on behalf of the defendant/respondent. Assuming an advocate’s name mentioned in the case suggests that she is “involved” in that case, we can find out how many cases an advocate has entered her vakalatnama in. There are at least 81,801 such appearances recorded in the case details providing us at least with a reasonably representative sample of the wider picture.
These numbers are almost identical that of the AORs in the Supreme Court. A little less than 7% of the advocates/law firms account for roughly 50% of the appearances. We don’t know how many advocates are in active practice (i.e. not suspended their practice under the Bar Council of India Rules), so it is not possible to say what percentage of lawyers even had a single appearance in the district courts in Bengaluru. Nonetheless, the pattern is quite clear – a disproportionate amount of work is being done by a small handful of lawyers. Shockingly, the median lawyer had only one appearance in the two years in the district courts of Bengaluru.
If we were to extrapolate this figure nationwide, of the thirteen lakh lawyers or so in India, a little less than a lakh may actually be handling about half of all the three crore cases in the system! Keep in mind that the two samples I have looked at are both from urban areas with high economic activity and therefore lots of litigation to go around. It is possible that the numbers are even more skewed in smaller urban and rural areas. I have also assumed that each case pays approximately the same to a lawyer but that is quite clearly not the case. If we were to see the earnings of lawyers in the profession, the earnings of the top 5% may outstrip the earnings of the remaining 95% by a large distance!
One way to understand this is through the Pareto principle (the proverbial 80:20 rule) applied to the legal profession – that 80% of the legal work is done by 20% of the lawyers. This is also borne out by the figures from the Supreme Court filings where approximately 80% of the filings were from 20% of the AORs. However, the effects of this are not necessarily benign. This has some serious consequences on the working of the profession itself. Few lawyers doing all the work means that they are overburdened and as a result, the system is slowed down. This is seen in the many adjournments taken in the case. As a study conducted by the Vidhi Centre for Legal Policy, which looked at the numbers from the Delhi High Court, adjournments sought by lawyers were the overwhelming cause of delay in cases. Even accounting for adjournments sought in bad faith, the large number would suggest that there are clearly too few lawyers handling too many cases, and unable to ensure timely completion of all of them.
There is another, other consequence to this. The average graduate who wishes to practice in the courts, without any family members to ease her into the profession, faces poor pay, tough working conditions and a daunting challenge to rise in the profession. With a combination of luck, hard work and opportunity, a young litigator step out of this phase. But we see that this does not happen to everyone. Faced with the inability to make an honest living from the profession, those who can leave it for greener pastures elsewhere. To do this, one would need financial and other support from family or others to make this difficult shift. Those who cannot, find other, less legal means to do so.
Herein perhaps lies the explanation for the strikes, violence and thuggery that has become associated with the legal profession in the last few years. A large number of idle men (largely), with no real prospects for making an honest living in the profession and no opportunities outside of it, are ready fodder for anyone looking to rent a mob. The vast disparity between the haves and have nots in the profession as the data presented above shows may be something that boils over into the kind of violence and thuggery seen around the courts.
Is there a solution for this situation? Adam Smith wasn’t optimistic. He noted that despite knowing the odds against them, people still entered the legal profession in the hope of building one’s reputation and in the belief that they could beat the odds. Of all the professions in India, it is probably the easiest to become an advocate than anything else when one compares the average cost of legal education and entry into the Bar, with say medicine, engineering, accountancy or dentistry. Does the solution lie therefore in making entry into the profession much harder? What of those who are already “trapped” in the profession? How to retain the aspirational quality of a law degree without making it totally exclusionary?
These are difficult questions without obvious answers but it’s time those in the legal profession, judiciary and legislature started worrying about the possible solutions.
Alok Prasanna Kumar is a Visiting Fellow at the Vidhi Centre for Legal Policy and an advocate based in Bengaluru.