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BW Businessworld

My Wages For Your Sins

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“Can’t you see”, Pink Floyd’s singer song writer Roger Waters berated us in 1984, “it all makes perfect sense, expressed in dollars and cents”. This must be why Supreme Court senior counsel aren’t taken seriously till they make Rs 10 lakh a day! I mean if you are that good, why isn’t someone putting their money where your mouth is? Which takes us to the fundamental question: why are top gun lawyers being paid so much?

Snipped off the trimmings, I would say it comes down to the cumulative impact of three reasons. At the root of it all sits a pertinacious legislature mating out (like Lord Tennyson’s Achilles) “unequal laws to a savage race”. I am not being bitter. The main purpose of many laws is a kind of perverse ‘wealth re-engineering’. As if that wasn’t bad enough, we have an enviable bouquet of ridiculous laws that the Law Commission can’t see. The internet is awash with such lists but here is a quick sampler. Section 309 of the IPC sends you to jail for a year for failing to successfully commit suicide but is perfectly happy for you to succeed. At 18 you are old enough to elect an idiot as your political representative but it is another 7 years before you are old enough to drink to your dumb choice. You can’t be a pilot if your leg isn’t 3 feet long!

On a more serious note, we have on our statute books a plethora of laws that criminalise a CEO of a company because the drinking water supply isn’t up to scratch or the walls of the worker’s canteen are not smooth enough or a women worked there at night (try the Factories Act 1948). The Industrial Disputes Act 1947 is a whole lot worse. Not only can’t you start an industry without a dozen approvals and permits, you can’t fire any but the last employee to be hired, modernise a plant without a 21 day “Change of Conditions of Service” notice or shut down the place without a babu’s approval. Here’s the bottomline: when you make impractical laws that fly in the face of the times in which we live, you are going to end up with people who can’t both follow the law and run a business that makes commercial sense. Courts then become the magic wand that cure political diseases.

That brings up Reason No. 2. Our fabled “functioning anarchy” has added immeasurably to its historic dysfunction by allowing the political classes to use the government to further their own acquisitive agendas. Since all governance yields political funding, administrators can’t take any decision at all without permission from the political classes. We have examined its impact on UP’s sand mining licences (Enter The Sandman) in the past. Simultaneously, sale of government jobs over the years has resulted in an entire class of civil servants looking for ways to recover their entry investment into bureaucracy. Naturally, a grievance rooted in the quest for fairness in governance cannot be addressed “administratively”. You have to go to court.

When you put these two factors together, what you get is a system of administration which funnels disputes relentlessly at very high volumes into the justice machine, clogging it, resulting in an irremediable logjam. That is our problem number 3. It has become so absurd now that if you take Prime Minister Manmohan Singh’s word for it (at the conference of Chief Ministers and Chief Justices in 2004), a sample survey conducted in Karnataka revealed that the Government was a litigant in 65 per cent of all civil cases, sometimes on both sides of the dispute. If you are now going to set up Lokpal type laws, how long will it be before the same is true of criminal cases? In 2008, Prime Minister Manmohan Singh informed the Lok Sabha that our courts are clogged with 30 million cases of which 4 million are pending before the High Courts and another 65,000 before the Supreme Court. In 2009, the Chief Justice of the Delhi High Court released a report stating that given present disposal rates, it will take 466 years for the courts to clear the backlog. Justice V.V.Rao of the Andhra Pradesh High Court did not agree. In his keynote address on E Governance in the Judiciary in March 2010, he calculated that it will take only 320 years!

I can believe either figure because with 15 judges per million, we have a 7th as many judges as USA (100 judges per million) in a society that is at least seven times as dysfunctional. In a world where 30 million cases are up for decision, what makes your particular cry of anguish so evocatively heartrending and why should the court care to give you priority time? Some cases will never be decided, or so it seems. My law firm is currently handling a 44 year old case in final hearing in the Supreme Court where some 3500 acres of land was acquired for the Navi Mumbai project without paying a paisa. Four decades later, we are arguing about whether the Land Acquisition Reference court had jurisdiction to decide the owner’s title or not. Meanwhile, many of the former owners –mostly poverty stricken peasants who slowly starved to death in the decades since – have lost whatever remained in sustaining the ensuing litigation costs.

In this crazy state of dysfunction, what can you possible achieve by going to court with your grievance? The truth is that most people don’t go to court if they can possibly avoid it: those that do have no choice. Those who understand how the racket works simply apply the rule of Buffalo Jurisprudence and let the other sucker go to court (see the June 20th 2008 Fineprint “Buffalo Jurisprudence”). Are we surprised then that there is no respect for the law? That apart, when the warring parties do get to court, the whole game is about getting interim orders.These interim orders last as long as the case does: if yours lasts 20 years, your lawyer really does deserve a healthy bonus. In India today, litigation is really about interim arrangement’, and that’s what people like me make a living doing.

So in this world of paralysed time and frozen turbulence, let us redefine our expectation from a lawyer. You want the guy to move the system that you know moves very little. You also want to use the system to fight a predatory state that has legislated perfectly ‘legal’ but immoral laws designed to unfairly victimise you. You are probably going to court asking them not to apply a bad law. You can take it that the court would not be super enthused about doing that for you.

That’s not the worst of it. Courts have no means to establish truth except through records and ‘Official records’ are deemed to be the most credible. Yet, the Government thinks nothing of cooking up the records to get to you, which means that when you fight the government, your goose is cooked and you go to court to uncook it. Is that a tall order or what?

As a lawyer though, what really bothers me is that I am a legal service provider, and my ability to generate business depends on my ability to provide a quality product at realistic prices with expeditious delivery schedules. How do you think English law firms have spread their wings across half the English speaking world, to say nothing of China? They are not selling service: they are selling jurisdiction. They tell you that the English legal system is superb and English courts are quick to fix problems. They ask you to write contracts under English law so that they can be adjudicated in England. How would you rate my chances of going to China and successfully selling Indian law to them on the ground that our courts can provide cheaper, faster and better service than those far away white colonizer supremacists with their high costs and their bad Sunday work ethic?

It doesn’t end there. We undeniably have a problem, but who is trying to fix it? It’s not the legal community. If a client has a problem with his lawyer, who does he go to? It’s not the Bar Council. Have you met anyone lately who successfully sued his lawyer for substandard service? How about delays in court? Who do you petition if a court is taking too long to decide your case or the judge is not up to scratch? Of course you’ve read the Contempt of Court Act! Forget about you, you are only an ordinary citizen: what about me? As a service provider, I am vitally interested in fixing the legal system. Where do I go? Where is that forum that is agitating for a better, faster, more efficient legal system? We just had our High Court bar elections. The trial court bar elections are up next. I don’t see candidates circulating sophisticated well-conceived papers promising to take concrete steps to fix the justice machine. I see a lot of promises about claiming additional ‘rights’ for lawyers: chambers, priority parking, stuff like that.Lawyersagitate like labourers in a sweatshopall the time for more privilege, never for a system that works efficiently for their customers.

In this environment, when the justice machine is being relentlessly ground into the dust till it risks being reduced to a wasteland, if you can actually get a lawyer to deliver you any kind of justice at all in terms of interim arrangements, what will you not pay him for the privilege of having him represent you?

(The author is managing partner of the Gurgaon-based corporate law firm N South. He is the author of “Winning Legal Wars” and “Bullshit Quotient: Decoding India’s corporate, social and legal Fine Print”. He can be contacted at [email protected]).