Social Security of Lawyers: The best defense comes from withinFebruary 21 2019
The Preamble of the Constitution of India speaks of a solemn resolution to secure to all of its citizens, amongst other things, justice. Of the entire apparatus put in place to ensure timely delivery of justice, the most crucial component is the human resource element - the advocate. The importance of the role of advocates is unquestionable and their role in shaping our society, already acknowledged. Therefore, the well-being of lawyers and a plan for their social security is a matter of grave concern and one that demands the closest attention of the Government, Bar Councils, the Bar and the legal fraternity at large.
A lawyer, from the day of his enrolment till his final days, serves as an important limb in the administration of justice. However, no concrete measures are in place to ensure his social security. This is in stark contrast to, say, the steps undertaken for the well-being of government employees, who play an equally key role in the executive administration.
With the enactment of the Advocate’s Welfare Fund Act, 2001, some steps were sought to be taken in this direction. Ineffective implementation of its provisions, however, has rendered it almost defunct, leaving lawyers, one of the critical pillars of Indian democracy, hanging in the balance. Given the state of advocates today, there is a need for innovative and comprehensive measures.
Sections 26 and 27 of Advocates’ Welfare Fund Act, 2001 deal with Advocates’ Welfare Fund Stamp. Section 27 of the Act requires every advocate to mandatorily affix a stamp on every vakalatnama filed by them. The value of the stamp to be affixed differs from State to State. The first step is to streamline the authentication and accountability of the welfare stamp itself. There is a need to introduce electronic methods to eliminate even the possibility of fudging of stamps.
This is imperative as the sale of such stamps make up the primary corpus of the Fund. The scope of such funding becomes obvious when one delves into the arithmetic. There are approximately 6 lakh cases which are filed every year in the State of Punjab (including the lower courts). Assuming a minimum of 3 parties to each case (and hence 3 stamps on such vakalatnamas), currently priced at Rs. 25 per stamp, this in itself is a (minimum) corpus addition of Rs. 4.5 crore. Every year, a nominal increase to Rs. 50 per stamp would escalate this to Rs. 9 crores. Systems need to be put in place to track such additions to the Fund so that there is an effective return sought on such corpus.
Then there are measures to augment such Fund. Every day, lakhs of rupees are (cumulatively) imposed by the Courts as costs for frivolous litigation. Although the said amount is directed towards various welfare measures, the effectiveness of such measures can be exponentially enhanced by requesting the courts to specifically direct that a fixed portion of these costs be paid into the Welfare Fund.
A concept akin to Corporate Social Responsibility would also not be out of place. Senior lawyers who bill more than Rs. 20 lakh as their monthly fees should be persuaded to donate 1 percent of their earnings to the Welfare Fund. Even law firms should be made to participate and contribute a small portion of their income to the Fund.
It is an extraordinary irony that while many a lawyer has been Finance Minister, the Government of India has not deigned to exempt donations made to the Advocates Welfare Fund from the ambit of taxation. This, in my opinion, operates as a discouragement to contributions to the Fund. An exemption would provide an impetus to donate and participate.
Next is the use of such Fund. A robustly endowed Welfare Fund and appropriately focused welfare schemes in areas such as life insurance, medi-claim, loss of professional income on account of disability, or prolonged or chronic ill health, etc. will go a long way in inculcating a sense of social security. Rather than the present practice of ex gratia payments which not only eat into the Fund, but are on a discretionary case to case basis, a comprehensive social security measure linked to insurance schemes will remove the element of uncertainty, while protecting the financial health of the Fund.
Such an environment will also attract better human resources, a very critical component in the continuation of any profession. This is especially in the case of those who possess the necessary legal acumen or jurisprudential interest but hesitate to venture into the profession because of the financial uncertainties and the long gestation period in private practice. Those with enough financial backing can still practice independently, but the landscape is somewhat forbearing for those with underprivileged backgrounds. A social security system in place would reap rather than repel talent.
This applies equally to persons who have found the grit to enter the profession. There are approximately 35,000 registered lawyers across the State (including Chandigarh). While some of these are economically well off, many are virtually fighting financial distress. While as lawyers, we defend the causes of clients, it is time we also came to the aid of our own.
All in all, I do not think the legal fraternity needs to seek subsidies or dither for doles from the government. We have the sources and the strength to take care of ourselves. After all, the best defenses often come from within.
Atul Nanda is the Advocate General for the State of Punjab.
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