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Examining Congress' record on India's lawyers: Could NaMo or Kejri do better? (Spoiler: No)

RaGa: Not a lawyer (neither is NaMo, for that matter)
RaGa: Not a lawyer (neither is NaMo, for that matter)

With Lok Sabha elections now scheduled to start on 7 April and the battle for the hearts and minds of voters on full steam between the Congress, the Narendra Modi-led BJP, a possible third front and the Aam Aadmi Party (AAP) mixing it up in the wings, as a late but disruptive entrant to the political game, it is fair to ask: what has the current government done for India's legal profession?

And can any of the others do better?

Pendency

If there is one thing that's dogging the Indian legal system more than any other, it's the glacial pace of the Indian legal system, which has only kept rising and rising.

That said, some lawyers don't really mind: it means being able to bleed clients hearing by hearing, promising them a speedy resolution only to throw your hands up at the next adjournment to blame the opposing counsel (while secretly conferring with opposing counsel about who will seek the next adjournment).

Likewise, it means that corporates with deep pockets and good lawyers can make the risk of an adverse ruling in a litigation practically disappear for decades until the pesky claimant goes bankrupt or 'expires'.

However, others would rightly argue that if the pendency issue was solved it would increase the effectiveness of litigation and the instructions and importance of good lawyers who can do more than just adjourn.

The Congress party has fielded a long string of law ministers, most of whom have promised to fix the problem in the last few years (though arguably the law ministry and its officers have had most of their time taken up by trying to coordinate the defence of a government mired in a series of corruption scandals and legal challenges).

 

Veerappa Moily and his 2010 national litigation policy, which could have taken a large chunk of the government's more pointless cases out of the court system, was ambitious but has seemingly sat in bureaucracy's drawers untouched. Current law minister Kapil Sibal recently excavated it as a draft policy but it'll have to surmount government officers' inherent reluctance to stop litigating to cover their own behind, nor is the track record so far any reason to take solace.

Increasing the civil jurisdiction of the lower courts in Delhi to Rs 2 crore could take some of the work off the plate of the overworked Delhi high courts and the centre was mulling the proposal in January after ex-Delhi chief minister Sheila Dikshit gave the nod (though she was unceremoniously evicted in the Delhi elections by the AAP).

Of course, making an omelette won't be possible without breaking some eggs, and the Delhi High Court Bar Association (DHCBA) was not the first nor last bunch of lawyers to cry over increasing the limit in 2012.

The AAP, while giving away free water and cheaper electricity in only 49 days in a Delhi minority government, presumably hasn't had the chance to address the issue further and arguably the political deadlock of a Delhi controlled by an upstart opposition did not accelerate the Congress Centre's plans either.

Narendra Modi, despite recently admitting that he'd never even been to a courtroom or an advocates' chambers, basically parroted the Moily policy on pendency (“focus on a policy-driven governance, if there is good governance, pendency of cases will be reduced... Numerous litigations are filed by people against the government as there is no clear policy on many issues”).

And though that is not bringing anything new to the table, Modi's reportedly decisive / dictatorial leadership style (take your pick, depending on affiliation) could make the bar associations and vested interests in courts and government departments fall in line for much-needed reform.

In any case, that’s the message that the Modi camp pitches as a solution to most problems.

The bench

The Supreme Court has enjoyed an unprecedented renaissance in the last few years of Congress rule, emboldened to pick on government scams where it can and to deliver copious rulings flying in the face of the Centre.

And despite, for example, the Centre brushing aside the Supreme Court's decision in the Vodafone tax case with its own retroactive amendment, the party has largely tried playing along with the the courts by the rules of the bench.

Rahul Gandhi reportedly wanted to push the Judicial Accountability Bill (and several other laws) through by ordinance just before the election deadline for new laws but his plans were nixed by the cabinet.

In any case, whoever governs next probably won't have too much difficulty pushing it through, politically.

If the BJP were to come to power and Arun Jaitley is going to be anywhere near the law ministry, the bill could happen even more quickly under a new government, since it's been a hobby horse of the senior advocate for many years now.

The critics of Narendra Modi would fear that the Gujarat chief minister would happily trample on the judiciary's domain when it suits him.

The Aam Aadmi Party clearly puts a lot of faith in the courts compared to the other institutions but clearly not so much that its all-powerful Lokpal shouldn't emerge as the ultimate arbiter of corruption, even above and of the courts, which could strain relations between the bench and the government.

Liberalisation and foreign law firms

Liberalisation of the legal profession is not really going to win anybody any votes and bringing up the liberalisation hot potato would probably only likely to result in lawyers' strikes and local bar associations using the issue for political gain.

That said, most young lawyers I've spoken to seem to be in favour of the entry of foreign law firms, if they are restricted purely to corporate and transactional work, as are the majority of in-house counsel, and increasingly too some senior members in law firms and the bar [read a list of all liberalisation-related developments reported on Legally India].

Congress has had a track record of doing precisely nothing on this front for the past few years.

For a good time, between 2004 and 2009, HR Bhardwaj as Congress law minister following a BJP-led government, was the great hope for the foreign law firms who lobbied him and the Bar Council of India (BCI) hard; Bhardwaj continued making the right noises, perhaps with an intent to procrastinate on making a decision, though some observers have said that Bhardwaj may have been genuine in his intent. (The BCI, meanwhile, has been going on about reciprocity for eons and probably won't change its tune).

In 2009 Bhardwaj was ousted from the cabinet and replaced by Veerappa Moily, who said: “We will bring about reforms in the legal sector only by arriving at a national consensus and taking the entire legal fraternity into confidence. We’ll set up meetings with the Bar Council of India and state bar associations to come to a conclusion on whether or not foreign law firms should be allowed to form partnerships with the Indian legal union. Let us discuss about it.”

Moily also added later that the entry of foreign law firms was a “transitional” but not a “perennial” problem that “we should not shut our minds to”, whatever that means.

Clearly, nothing much beyond discussion happened, in part thanks to the intervention of Madras-based advocate AK Balaji, who filed a writ petition against 31 foreign law firms that is now lingering in the Supreme Court.

Ashwani Kumar was put in charged of the cursed department in October 2012 but ousted after just over half a year in the job by Salman Khursheed. Khursheed, when he was law minister for a short time, said in an interview that foreign law firm access was “inevitable” but up to the bar, and new law minister Kapil Sibal hasn't said much of import on the issue so far.

Meanwhile, the Congress Finance Ministry in its 2013 budget wrote that foreign law firm access to India should be “explored”, alongside some other cryptic statements.

Despite all the noise, none of the politicians so far has exhibited any will to address the foreign law firm issue.

And to be fair, why should they? They couldn't even push through reform of a well-intentioned new legal practitioners' super-regulator in the face of resistance, The aam aadmi certainly don't care, for the most part about the issues, and the Aam Admi Party is unlikely to be excited by the idea of foreign law firms setting up shop here either if they can't even get their head around Walmart.

And the BJP, despite Narendra Modi's apparently pro-business and foreign investment stance, has not exactly been welcoming FDI in parliamentary votes, and it's unlikely Modi or his party would look at foreign law firms more kindly than the politically firmly entrenched domestic law firm promoters.

Modi himself also self-admittedly doesn't seem to know much about the dynamics in the legal industry and has apparently already become chummy with the Bar Council of India (BCI) chairman, who has certainly not ever spoken out in favour of foreign law firms' entry.

For no party are the few thousand young lawyers and in-house counsel who might support the measure a vote bank worth courting, at the risk of upsetting lakhs of small-town advocates and local bar politicos who might seek to draw mileage from any proposal.

Conclusion

The law ministry is thoroughly unloved by politicians and incapable of being a meaningful tool to reform the legal profession, surrounded as it is by strong vested interests, powerful lobbies and delicate balances. And in terms of policies, everything that could matter to the profession is pretty unsexy from and unlikely to give any benefit in elections (despite issues such as the pendency crisis being of fundamental importance to the country's economy and constitutional well-being).

Whoever inherits the law ministry, even with a strong parliamentary majority without heavy coalition baggage, is unlikely to be able to do any less than Congress has done in its time.

But because of the nature of the beast it's as unlikely to usher in a bold new age of transformative reforms either.

Readers: What are your thoughts?

Photo via Flickr

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