Issue I

whether the fees of the lawyer must be regulated ?

Demand of hefty fees by the lawyers lead to (1.1) inequality in access to justice, (1.2)
violation of right to life and personal liberty (1.2.1) by creating hindrance to free legal aid
(1.2.1) it violates rule of law (1.2.3) it violates rule of natural justice, (1.3) it is against the
ethics of the profession. Therefore, for protecting the rights of citizen it is necessary to
regulate the lawyer's fee.

(1.1) Hefty fees leads to inequality to justice

The preamble of the Constitution secures to its citizen, social, economic and political
justice.  Article 14 of the Constitution makes it clear that the State shall not deny to any
person equality before law or the equal protection of the laws within the territory of India.
The aim of Article 14 is to ensure equal justice which shall not be any arbitrary
discrimination between one citizen or class of citizens and another.” “All citizens shall, as
human persons held equal before law.” “All inhabitants of the republic are assured equality
before the laws.”. The guarantee of equal justice is meaningless if the poor or illiterate or
weak persons cannot enforce their rights because of their poverty or illiteracy or
weakness.1 In Stephen’s college v. university of Delhi2 court held that the expression “Equal
protection of the laws is now being read as a positive Obligation on the state to ensure equal
protection of laws by bringing in necessary social and economic changes so that everyone
may enjoy equal protection of the laws and nobody is denied such protection. If the state
leaves the existing inequalities untouched laws, it fails in its duty of providing equal
protection of its laws to all persons. The Principle of equality is not the uniformity of
treatment to all in all respects. it only means that all persons similarly circumstanced shall be
treated alike both in the privileges conferred and liabilities imposed by the laws. Equal law
should be applied to all in the same situation, and there should be no discrimination between
one person and another. P.N.Bhagwati has rightly said that "the poor and the illiterate should
be able to approach the Courts and their ignorance and poverty should not be an impediment
in the way of their obtaining Justice from the Courts." 

Charles de Montesquieu stated that "In the state of nature...all men are born equal, but they
cannot continue in this equality. Society makes them lose it, and they recover it only by the

1
https://pib.gov.in/newsite/mbErel.aspx?relid=118011
2
Stephen’s college v. university of Delhi AIR 1992
 protection of the law."3 The protection of law to poor, illiterate and weak is important to
ensure equal justice. Everyone should have a reasonable opportunity. There should be means
to ensure that the opportunities for securing justice are not denied to any person by reason of
poverty, illiteracy, etc. Article 39-A of Indian constitution directs the State to ensure that the
operation of the legal system promotes justice on a basis of equal opportunity and shall, in
particular, provide free legal aid by suitable legislation or schemes or in any other way, to
ensure that opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities.4

(1.2) Hefty fees violate the right to life and personal liberty

Right to free legal aid or free legal service is an essential fundamental right guaranteed by
the Constitution. It forms the basis of reasonable, fair and just liberty under Article 21 of the
Constitution of India, which says, “No person shall be deprived of his life or personal liberty
except according to procedure established by law”.5 Lawyers exorbitant fee must be
regulated because it violates the right to life and personal liberty (1.2.1) by creating
hindrance to free legal aid, (1.2.1) by violating rule of law and (1.2.3) by violating rule of
natural justice.

(1.2.1) Hefty Fee creates hinderance to right to free legal aid

In M.H. Hoskot v. State of Maharashtra6, the Supreme Court said while holding free legal
aid as an integral part of fair procedure the Court explained that “ the two important
ingredients of the right of appeal are; firstly, service of a copy of a judgement to the prisoner
in time to enable him to file an appeal and secondly, provision of free legal service to the
prisoner who is indigent or otherwise disabled from securing legal assistance. This right to
free legal aid is the duty of the government and is an implicit aspect of Article 21 in ensuring
fairness and reasonableness; this cannot be termed as government charity. Article 38 (1) of
the constitution of India provides that the State shall strive to promote the welfare of the
people by securing and protecting as effectively as it may a social order in which justice,
social, economic or political, shall inform all the institutions of the national life. Article 39-A
of Indian constitution directs the State to ensure that the operation of the legal system
promotes justice on a basis of equal opportunity and shall, in particular, provide free legal

3
https://pib.gov.in/newsite/mbErel.aspx?relid=118011
4
https://pib.gov.in/newsite/mbErel.aspx?relid=118011
5
Khatri and others v. state of Bihar, AIR 1981 SCR (2) 408
6
AIR 1978 SC 1548
 aid by suitable legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other disabilities. In
State of Maharashtra v. Manubhai Pragaji Vashi7, The Supreme Court has made it quite clear
that it is now well established that the failure to provide free legal aid to an accused at the
cost of the State unless refused by the accused, would vitiate the trial. In M.H Hoskot v.
State Of Maharashtra8, Justice Krishna Iyer observed that providing free legal aid is the
State's duty and not Government's charity. Failure to which will lead to violation of article
21. ( pib)

The Code of criminal Procedure and the Code of Civil Procedure also contain provisions in
relation to the free legal aid. Section 304 of the Criminal Procedure Code provides that
where in a trial before the Court of Session, the accused is not represented by a pleader and
where it appears to the Court that the accused has not sufficient means to engage a pleader;
the Court shall assign a pleader for his defence at the expense of the State. Section 304
makes it clear that the State is under an obligation to provide legal assistance to a person
charged with offence triable before the Court of Session.  It enables the State Government to
direct that these provisions shall apply in relation to any class of trials before other courts in
the State.

 A separate legislation, The Legal Services Authority Act, 1987 has been enacted to
constitute the Legal Service Authorities to provide free and competent legal services to the
weaker sections of the society to ensure that opportunities for securing justice are not denied
to any citizen by reason of economic or other disabilities. It is not violative of article 19(1)
(g) as it has certain restriction under 19(6) which states that in order of public interest state
may restrict it. Since, article 19(1)(g) is not absolute so, it is not violating it as it comes under
its restriction.

(1.2.2) violation of rule of law

According to justice Bhagwati,9 rule of law is the law, based on principles of freedom,
equality, non-discrimination, non-arbitrariness and is certain, regular and predictable, governs
all. In a democracy, where rule of law is supreme; it is essential to ensure that even the
weakest amongst the weak, poorest among the poor, in the country does not suffer injustice
arising out of any abrasive action on the part of State or private person. One of the important
7
AIR 1989 Bom 296
8
AIR 1978 SC 1548
9
Bacchan Singh v. State of Punjab AIR 1980 2 SCC 684
element of rule of law is equality before law and it can be achieved when they have equal
access to justice but if the lawyers demand exorbitant fees then the people who cannot afford
the fees will suffer injustice which is the violation of rule of law.   In state of Maharashtra v.
Manubhai Pragaji vashi10, the Supreme Court has highlighted the necessity for capacity
building and held that in order to provide the "free legal aid" it is necessary to have well-
trained lawyers in the country. This is only possible if there are adequate number of law
colleges with necessary infrastructure, good teachers and staff.

(1.2.3) violation of principles of natural justice

The rule of natural justice says that individuals should not be penalized by decisions affecting
their rights and legitimate expectation unless they have been given prior notice of the case
against them, a fair opportunity to answer them, and the opportunity to present their own
cases. It should be insured that justice cannot be denied to any citizen by the reason of
economic or other disabilities. If the lawyer asks for the hefty fee which is not affordable by
the person accused or any person it simply means he is not getting the right to be heard in
free and fair manner and lead to injustice which is the violation of the natural justice.

(1.3) It is against the professional ethics

In 1937, the American Bar Association adopted the following canon of professional ethics,
"The lawyer should not purchase any interest in the subject-matter of the litigation which he
is conducting." This is also part of the ethics code applicable to Indian lawyers.

Gopal Sankaranarayanan, says, “There should be a cap on advocate fees. Without a cap, we

lose the idea of being a profession and become commodities that go to the highest bidder. In
this case, I feel self-regulation will fail and government may have to step in.” The Court said
that fees conditional on the success of a case has been repeatedly condemned as unworthy of
the legal profession because if an advocate has interest in success of litigation, he may tend to
depart from ethics. The standards of professional conduct and etiquette which are prescribed
in the Bar Council of India Rules do not lay down any guidelines for charging of fee by
lawyers. The Rules which perfunctorily deal with fee charged by advocates are the Bar
Council of India Rules. Part VI provide for Rules Governing Advocates’. Chapter II therein
titled `Standards of

10
AIR 1989 Bom 296
Professional Conduct and Etiquette’ prescribe in Section II `Duty to Client’. Rules 11 and 20
of the said Section II read as under: “11. An advocate is bound to accept any brief in the
courts or tribunals or before any other authority in or before which he proposes to practice at
a fee consistent with his standing at the Bar and the nature of the case. Special circumstances
may justify his refusal to accept a particular brief. An advocate shall not stipulate for a fee
contingent on the results of litigation or agree to share the proceeds thereof.” 11. There is a
severe gap/lacuna in the Rules which could lead to harassment and frustration to litigants.

In order to ensure that there is some regulation of the manner of charging professional fee by
advocates and also for providing a Forum to air grievances of the litigants, there is an urgent
need to frame some guidelines/rules.

WHETHER THE COURT HAS POWER TO LAY DOWN ANY GUIDELINES IN THIS
REGARD

The court has power to lay down any guidelines in this regard. It does not violate the
separation of power as it is not followed in strict sense, when there is emergency in public
interest and the parliament is not in session then judiciary take suo moto in this regard to
make guidelines. Vishakha guidelines in Vishakha v. State of Rajasthan 12 where the Supreme
Court actually laid down the law pertaining to sexual discrimination at workplaces in the
absence of a law governing the same.  In numerous other cases, courts have laid down policy
guidelines, or have issued administrative directions to governmental departments. The CJI
unambiguously stated that: "...In many PILs, the courts freely decree rules of conduct for
government and public authorities which are akin to legislation. Such exercises have little
judicial function in them. Its justification is that the other branches of government have failed
or are indifferent to the solution of the problem. In such matters, I am of the opinion that the
courts should be circumspect in understanding the thin line between law and
governance..."13Therefore, judiciary has power to lay down the guidelines.

11
DEEPA BOGRE V.
12
AIR 1997
13
https://www.prsindia.org/theprsblog/does-judiciary-“make-laws”