The criminal justice system in India has come under scrutiny in the run-up to the Delhi gang rape trial, which opened this week in a specially designated fast-track court in the capital.
Indian courts have long been criticized for their slow delivery of justice, and trials can stretch for decades. There were more than 7.5 million criminal cases pending in courts across India at the end of 2011, or 84.6 percent of the total number of cases that were pending the year before.
India not only has one of the fewest judges per capita in the world, at 14 judges for every million people, but also a low number of lawyers per capita, with 141 lawyers for every 100,000 people, according to the Bar Council of India. The number of lawyers authorized to fight cases on behalf of the state, or public prosecutors, is even lower, experts say, though exact numbers are hard to come by. In a recent interview, Rajiv Mohan, the public prosecutor in the Delhi gang rape case, said he was juggling about 150 cases presently.
India Ink spoke to Manan Kumar Mishra, the chairman of the Bar Council of India (B.C.I.), about the challenges the legal profession faces in India. The council is the statutory body in India that exercises regulatory authority over lawyers and prescribes standards for legal education.
Are India’s lawyers overworked?
When the workload on the courts increases, naturally lawyers are overburdened. Firstly in India, the large population is the main problem, and secondly, our justice delivery system is not working. The government is always trying to push the Alternative Dispute Redressal (A.D.R.), but these institutions are not properly working. I think we have enough lawyers, but the need is for basic legal reforms in every field.
As far as the increase in the lawyers is concerned, we have about 17 lakh (1.7 million) lawyers in the country today. There are approximately 1,000 law schools, and almost 45,000 to 50,000 lawyers are added every year.
Is there an imbalance between the growth of cases and the number of lawyers?
Legal education has become more attractive today than even engineering because of the new kind of litigation in the corporate sector, for example, IT law and corporate law. These new lawyers do not all practice criminal law, and very few go on to become public prosecutors.
Public prosecutors work only in the criminal field. With the increase in the number of criminal cases, their workload is increasing. But the appointment of public prosecutors is made by the government. The sanctioned posts of public prosecutor are limited since it is mostly a political appointment. And if inefficient people are getting the job, naturally that leads to delays.
What is responsible for the huge number of pending cases?
There is a dearth of strength in the judiciary. In the lower courts, there are more than 50,000 vacancies; no state government, let alone the central government, is trying to fill up the vacancies. That is the root cause of delays. Because of the dearth of judges, cases linger for 15, 20, 30 years. Also some lawyers try to delay cases to earn more fees. But that is not a common practice.
Why is it so difficult to appoint more judges in India?
The government does not want the cases to be disposed of quickly; it does not want appointments to be made. Lots of money is being spent on the A.D.R. institutions, but no results are coming out of it. Instead of making this huge expenditure, if the government is actually keen on serving justice quickly, then more judicial appointments should be made. For example, in Patna High Court, Allahabad High Court, the sanctioned posts are the same as what they were five decades ago; the strength of judges remains the same. The same is the case with lower courts.
The government does not want to improve the standard of the judiciary, because the government does not want a strong judiciary. That is the real problem.
Why doesn’t the government want a strong judiciary?
Naturally if there is a strong judiciary, that means strong people and it is a problem for a government that is faulty and corrupt.
Are fast-track courts the way forward?
Fast-track courts are definitely required, particularly in criminal cases. But instead of appointing retired district judges and additional district judges, they should appoint experienced lawyers to chair the fast-track courts. If these people are hired after a proper interview and exam, or whatever the process might be, they will function better than these retired people.
Can lawyers refuse to represent certain clients, as the Saket Bar Association did in the Delhi gang rape case?
No, that is against professional ethics. A lawyer cannot deny any client; you are duty-bound to represent anyone who approaches you. The attempt to boycott the gang rape suspects was a call of sentiment by those lawyers. As chairman of the B.C.I., I also appealed them and they withdrew the call.
What are some problems faced by lawyers?
Lawyers do not have any form of social security; young lawyers do not have any kind of stipend. If a young lawyer dies, the family is left without a breadwinner or support.
Because of these economic pressures, sometimes some lawyers indulge in malpractice.
What sort of malpractice?
The most common malpractice is the delaying of cases by some lawyers. Cheating is another offense we look at, but these cases are rare and dealt with in a severe manner. We revoke the license completely in very serious cases.
How many such cases do you deal with in a year?
Approximately 4,000 such cases are pending with the B.C.I. People first they approach the state bar councils; B.C.I. is the appellate authority. I am not sure of the exact number, but the state bar councils receive about 50 complaints every year.
There were only 3,500 cases pending with the B.C.I. in 2010. But with the number of lawyers increasing, the number of complaints has also increased.
What are the other problems the council is dealing with?
The discrepancy in the salaries is one major problem for the Bar Council. We are trying to regulate abnormal fees charged by some lawyers. It is impossible for the clients to afford some of them. It is a private profession so we can’t really stop it, but we can only make a request.
The scope of the legal profession is good in India as compared to other countries, but because of poor economic conditions, the lawyers are not getting the remuneration they deserve. If you keep the metropolises like Delhi, Mumbai apart, the remuneration in rural areas is very low.
India Ink: A Conversation With: Bar Council of India Chairman Manan Kumar Mishra
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India Ink: A Conversation With: Bar Council of India Chairman Manan Kumar Mishra
