Legal Notes by Arvind Datar: Mandatory fees for junior advocates

The Madras High Court has recently directed that every advocate/Senior Advocate in the three major cities of Chennai, Coimbatore and Madurai shall pay a minimum stipend of ₹20,000 per month to each junior advocate. In the rest of Tamil Nadu and Puducherry, advocates/Senior Advocates have to pay a minimum stipend of ₹15,000 per month.

This judgment seriously brings to the fore the dangers of High Courts attempting to cure social problems through judicial orders without any data or careful analysis. They fail to realise that such directions are in the nature of primary legislation and High Courts have no power to issue such directions on the basis of what they perceive to be the right course of action.

In this case (Farida Begum v. Pondicherry Government dated June 12, 2024), the Madras High Court was concerned with a simple writ petition seeking a mandamus for issuing directions to the Bar Council of Tamil Nadu and Secretaries of Tamil Nadu and Puducherry, to implement and enforce the Advocates Welfare Fund Act, 2001 in the Union Territory of Puducherry. There was a further prayer to pay ₹25 lakh to the petitioner. The judgment is completely silent on the facts of the case, the merits of this claim and whether it was to be paid or not. The High Court goes on to direct implementation of the welfare scheme under the 2001 Act cited above.

That should have been end of the matter. But the High Court then takes upon itself the need to safeguard the livelihood of junior advocates who are employed by either advocates or Senior Advocates. There was no prayer or pleading for directing payment of minimum remuneration to junior advocates. The High Court observed that under Section 6 of the Advocates Act, 1961, the Bar Council was duty bound to ensure that junior lawyers who enter the legal profession with “great ambition” are encouraged and their livelihood is protected. The Court was particularly concerned with junior lawyers who came from marginalised sections and from rural areas to the cities to practice law. It then proceeded to make sweeping statements like:

(1) Earlier, access to professional courses like law were reserved only for the people from privileged backgrounds;  

(2) Constitutional ideals played a pivotal role in creating a pathway to all young graduates to come from multi-cultural, multi-social and multi-economic and diverse backgrounds;   

(3) The noble profession of law is one of the frontrunners in reinventing itself as and when the need arises; and

(4) Post the COVID-19 pandemic, the lawyers have adapted themselves in tune with technology and we are striving forward as a community to address pertinent issues in the field of law.   

The Court noted that many youngsters are forced to quit due to economic instability in the legal profession. It also observed that history showed that lawyers, as a community, were the biggest change-makers in India. Therefore, the High Court took it upon itself to lead the change and ensure that future junior lawyers should be able to work in a safe and robust eco-system. There are then several observations which include a reference to Article 21 and the need to observe that economic instability does not come in the way of the learning of junior lawyers.

Reference is also made to young lawyers who come from marginalised sections of society and hold immense potential. On this basis, the directions to pay the minimum stipend of ₹20,000 in the three major cities and ₹15,000 in the rest of Tamil Nadu and Puducherry were made. The Bar Council of Tamil Nadu and Puducherry was directed to issue circular/instructions/guidelines within a period of four weeks.

There are serious flaws in this judgment, apart from the competence or jurisdiction of a High Court to issue directions for the payment of minimum remuneration. In the first place, the High Court has treated all advocates and Senior Advocates who have juniors, alike. An advocate who has 10 years of practice and a modest income is obliged to pay the same stipend of ₹20,000 per month in Chennai as a Senior Advocate who has a substantial practice. Similarly, a junior who has just joined the profession and another who has completed five years will get the same stipend of ₹20,000. The High Court did not make any study of the possibility on whether these directions are capable of being implemented. Outside the three major cities, every advocate who has a junior has to now pay a minimum stipend of ₹15,000. It does not matter whether the advocate is practicing in the district and sessions court or practicing in a munsif court in a much smaller town.

If Parliament had directed a flat fee to be paid to all juniors in the metros and non-metros, it would have been struck down under Article 14 without any difficulty. The direction to pay a flat fee amounts to treating unequals equally, both from the point of view of advocates and Senior Advocates, and from the point of view of the recipient junior members. What happens if an advocate has five juniors but does not have the capacity to pay the mandatory fee of ₹20,000 or ₹15,000 to each junior? Can any of his juniors file a contempt petition against his senior? Can the Bar Council take disciplinary action against such lawyers who are simply unable to pay? Do they ask the junior advocates to leave?

Before making such sweeping directions, the least that could have been done was to refer the matter to a committee and get inputs from a few bar associations. There has been serious concern amongst various lawyers and bar associations as to how these directions are going to be complied with.

It is often said that the path to hell is paved with good intentions. There is no doubt that the High Court was moved by the plight and financial difficulties that junior members have faced, indeed for decades, but the solution does not lie in issuing impractical and arbitrary directions. Indeed, the cruel irony is that these directions are likely to cause more harm to the juniors whom the High Court intended to benefit.

It must also be pointed out that there is no provision for a junior chartered accountant or a junior architect to be paid a minimum stipend, either in Madras or in the rural areas. In contrast, the Institute of Chartered Accountants of India, under Regulation 48, has stipulated a minimum stipend for articled assistants. These are on a graded scale depending on whether the assistants are in their first, second and third year of training and the cities or towns they are working in. These cities and towns are classified on the basis of their population. 

While the judgment is seriously flawed and deserves to be overruled at the earliest, it is also time for advocates and Senior Advocates to introspect and see whether the junior members are being remunerated in a fair manner. In particular, those advocates who are blessed with a successful practice have a duty to pay their juniors well, so that the profession remains attractive to young lawyers who are competent but do not get the financial support in the initial years.

Arvind P Datar is a Senior Advocate of the Supreme Court.