Arunima Nair and Shruti Kapur

India’s Grand Advocates: A Legal Elite Flourishing in the Era of

Globalization (2013)
Marc Galanter and Nick Robinson

Introduction
● Who are the Grand Advocates (‘GAs’) - a handful of legal superstars, advocates based in
the Supreme Court and High Court, who are known for their strategic acumen, their
quirks, their impressive roster of high-profile clients, their large incomes, and their
contributions to the development of the law.
● Galanter and Robinson look into how GAs have thrived in the age of globalization -
benefiting from and resisting absorption into the law firm sector. This is because of a
series of structural features:
○ Litigation in India less about money (i.e. the size of monetary awards, no systems
of contingency fees etc.) and more about control.
○ With perpetually backlogged courts and the average pendency of cases running
into years, beneficial interim orders wrt property ownership, organization control,
or Govt. regulation become crucial.
○ GAs thrive because they have extensive social capital within the court system and
deep knowledge of formal and informal judicial procedure. “Positional goods” -
things like reputational capital among judges that can’t be transferred to juniors or
partners.
○ Reputational capital can also be used across a wide spectrum of cases, thus
lessening the need to specialize in a particular area of law.
● No close parallels to GAs in other countries outside of South Asia. GAs not associated
with academic institutions, nor do they necessarily produce books or commentaries. Not
authorities whose intellectual products are considered authoritative like British opinion of
counsel memos. Like the US, GAs name recognition is what increases the chances of
their clients’ cases being heard -but even the US Supreme Court doesn’t have as many
cases as the Indian SC, nor do the famous US SC lawyers wield the kind of influence
GAs do.
● Based on interviews with >50 legal professionals in Delhi, Mumbai, and Madras.

Background
● 19th Century Indian Bar:
○ Royal Courts in Presidency Towns of Bombay, Madras, and Calcutta, which were
ruled by the British Crown and English law administered by British judges, with
barristers briefed by solicitors.

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○ Until 1857, most of India was ruled by the East India Company, which operated
Courts staffed civil servants and which licensed Vakils to represent clients in
those Courts. Post 1857 rebellion, British Crown merged both systems.
● British Barristers practiced in India for the higher fees; elite Indians went to the Inns of
Court in London to secure qualifications. Others got on-the-job training at Courts, joined
by those who attended law schools in India.
● No single hierarchy of Courts in British India: a hierarchy in each province, culminating
in a High Court. Appeals from these Courts lay with the Privy Council in London, which
were expensive and rare.
● Post-Independence: Constitution unified everything into a single hierarchy culminating
with the Supreme Court.
● Advocates Act 1961: abolished old classifications (vakils, barristers, pleaders of different
grades, mukhtars) and consolidated into a single body of advocates who have the right to
practice in Courts across India. Only formal distinctions within this body are:
○ Lawyers designated as Senior Advocates (‘SAs’) by the SC or any of the 21 HCs.
This is equivalent to the British Queen’s Counsel. QCs are 10% of British
barristers, while SAs are less than 1% of Indian advocates. SAs enjoy priority of
audience; they can’t appear without briefing counsel/AoRs. SAs cannot draft. SAs
designated in one Court are recognized as SAs in others.
○ In Bombay and Calcutta, can still qualify as solicitor (altho requirement that
advocates on the Original Side be briefed by a solicitor was abolished in 1976).
This is via extended apprenticeship as an articled clerk and passing an
examination. 5-10% pass percentage.
○ The SC requires that all matters in the SC be filed by an AoR. AoRs can argue
matters, but frequently serve as solicitors, briefing advocates. They perform the
various formalities of registration and scheduling of the case. Can become an
AoR after passing an exam by the SC.
○ Although the lawyer population is some 1.2 million, only about half of these are
in active practice.

The “Basic Structure” of the Indian Legal Profession

● Dominant model - independent advocate who practices mainly in single Court. Model
formed in colonial times which persists.
● Three features:
○ Individualism: lawyers practice by themselves with their own clerks and juniors.
Firms are a minority in the profession, and larger corporate firms rarely focus on
litigation.
○ Orientation to Court: spend most of their time in Court, chambers very close to or
in Court complex.

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○ Performance is overwhelmingly oral rather than written. Focus on advocacy over

advice, negotiation, conciliation etc. Advocates never feel constrained over
making arguments they never included in their written submissions. Paid per
appearance - not over written pleadings.
○ Generalists. Some have developed a niche practice, but most are unspecialized.
● Lawyers have the capacity for collective action - innumerable examples of lawyers’
strikes. While GAs/SAs hold bar offices, they’re usually far removed from direct action -
yet are direct beneficiaries of the Bar’s militant opposition to reform.

Steep Hierarchy
● “The pre-eminence of Grand Advocates is a contemporary expression of a long-standing
and pervasive pattern of steep hierarchy at the Bar. At every level, the provision of legal
services was (and is) dominated by a small number of lawyers with outsized reputations,
who have the lion’s share of clients, income, prestige, standing, and influence.”
● Senior Advocate Indira Jaising filed a writ before the Supreme Court on the
discriminatory, arbitrary, and opaque system of Senior designation – see Indira Jaising v
Supreme Court of India (2017) 9 SCC 766
● Hierarchy noticeable with:
○ Number of matters scheduled per day: sometimes up to twenty-five matters
○ 10% of lawyers handling 75% of business.
● What are the consequences of this steep concentration of business in a few hands?
○ “A culture of postponement” in the judiciary. Judges give passovers/adjournments
to famous lawyers, who are all juggling way more matters than they can actually
handle, which means cases are dealt in a prolonged, fragmentary way. “There is a
cartelization of litigation by senior counsel…”
○ The leading lawyers, rather than judges, emerge as norm-setters and value-givers
in the judicial system. The meanings these GAs give in support of their clients is
more important that the meanings judges give. Judges are “almost irrelevant…
counsel have learned to treat them with kid gloves.”. GAs are almost always
cosmopolitan, well-read in English, while judges come from a diversity of
backgrounds.
● GAs are inextricable from the issues of the Indian higher courts - oral presentation valued
more than written submission, judges have no time or resources for independent research
and thus who rely on GAs for law and facts.
● The presence of GAs also contributes to, and is a result of, the “acephalous system” in
which similar/the same legal issues are decided in different ways by multiple Division
benches of the SC and the HCs.
○ When SC was established in 1950, there were just 8 judges, and they sat in five-
judge or larger benches for 13% of published decisions, and otherwise regularly
sat in three-judge benches. Now strength is 32, and some 40,000 admission

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matters heard on Admission Days (Monday and Friday) by over a dozen Division
Benches).
○ This kind of mild indeterminacy in precedent fosters the importance of GAs and
their representation in making a difference in the outcomes - at least as perceived.

The Seniority Factor

- Seniority is a recurring theme which takes different forms in the profession -
- On the bench - is relevant for promotion + rigid retirement age - makes retirement
and promotion predictable
- Some distinguished advocates decline to ascend to the bench because of
the money and compulsory early retirement.
- Seniority on the bench affords standing, influence and privilege but it also
disappears
- Following their early retirement - judges are forced to rely on political
figures for appointment to commissions, tribunals or private parties -
sometimes GAs - to engage them for arbitrations.
- It is difficult for retired judges to serve even as volunteers with their
former courts- uncertainty of their placement in the seniority ladder.
- For GAs - enhanced standing and enlarged human capital (contacts, experience
and reputation)
- Often SC judges are younger than senior advocates - may have looked up
to them.
- GA may feel more at home than the judge in the courts due to their having
practiced in the Courts longer than the Judge may have held their post.
- Enjoy a right to be heard before those who are junior to them.
- Even in situations where two advocates are being briefed for a matter, the
junior advocate is expected to go to the office of their senior for the
conference.
- This focus on seniority can result in preventing collaboration between
advocates.
Grand Advocates’ Clients
- Liberalization opened up abundant new streams for lawyers - previously seen as an
unattractive career choice for promising students.
- With an increase in foreign investment in India and subsequent creation of wealth and
billionaires/millionaires - prominence of law firms increased.
- As a result of liberalization, fees of GAs extremely high.
- Charges between 5 lakh to 6 lakh rupees per appearance at the SC.
- GAs move briskly in Court corridors followed by a flock of juniors, clerks, and
clients.
- On Admission, GAs could appear in 5-8 matters per day.

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- Most of these arguments just last a few minutes, allowing the lawyer to earn a lot
of money in just a few hours.
- Regular hearing days involve more substantive and lengthier arguments, but
lawyers charge the same for regular hearings and admission matters.
- To prepare for hearings, lawyers hold conferences with clients for which they
charge hourly fee.
- Payment here is payments for services rendered by them personally, they pay
their juniors, clerks, and staff out of their pockets for their contribution to the
services delivered to the clients.
- Wealth of GAs in the country:
- Abhishek Manu Singhvi: annual income as 50 crore in 2010-11.
- Ram Jethmalani: 8.4 crore.
- Shanti Bhushan: 18 crore.
- GAs justify skyrocketing fees as a way of filtering clients.
- A system of risk aversion: Everyone just passes on risk. “When the stakes are high you
get the best surgeon.”
- Under the Advocates Act, SAs not allowed to have their own clients, and must instead be
briefed by briefing counsel (solo practitioners who argue smaller matters themselves but
for larger cases enlist seniors).
- Most law firms don’t have huge litigation practices, possibly in part because they
anticipate senior counsel eating too much into their profit margins.
- Factors such as which region the GA is from, whether GA has a good rapport with a
particular judge, whether GA is from the same region as the judges matter.
- Top senior counsel are notoriously inaccessible. Will frequently miss hearings because
they’re arguing some other case in a different courtroom.
- This is partly because of how haphazard and poorly managed our Court system is
- and so judges allow passovers.
- System allows for this - no penalty from Court/Client for missing hearings.
- Counter is that Seniors book way too many matters and even charge for hearings
they miss.
- Since 1980s, litigants with deep pockets have used “negative retainers” to
disqualify GAs from appearing for opponents.
- For large matters, litigants often retain more than one GA not to block the other
side but because there’s no guarantee that the Counsel will actually be available
for the hearing, given the unpredictability of Court schedule. Some GAs charge
double to actually appear. Joke that Ashok Sen charged triple fee - “one for the
case, one for the promise to appear, and the third to keep the promise”.
- Top SC lawyers also often serve as Attorney General, Solicitor General, and Additional
SGs, taking a sharp cut in income. Many are associated with political parties.

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Grand Advocates’ Work

- Supreme Court advocates usually have wide-ranging practices.
- Leading lawyers focus either on the Supreme Court or one High Court, but will often
travel to another court for their client.
- Work before tribunals now make up a growing portion of these lawyers' work with the
growing importance and prominence of these forums.
- Some top advocates, interviewed for this paper, have reported that they now spend 5-15%
of their time on arbitrations.
- Importance of face value - Most GA’s work is now dominated by more procedural
aspects of law
- Office set-up:
- Delhi and Madras - operate offices in their homes or chambers near High Court or
Supreme Court
- Bombay - Offices outside their homes
- Clients and their briefing counsel come to the lawyer’s office - in an effort not to
indicate an eagerness to please the client which would be seen as denigrating the
profession, as explained by a top lawyer.
- Top advocates and their juniors:
- Can have anything from 3-20 juniors.
- Explicit specialization on kinds of matters by juniors is rare but not unheard of.
- Bombay - traditionally not paid, instead use their senior’s chambers to become
known among briefing counsels by contributing in client conferences - use the
infrastructure of senior’s chamber initially.
- Delhi and Madras - do receive a salary but also take on their own work - amount
paid ranges, could be a token amount or an amount equivalent to that of a junior
associate at a firm.
- Often multiple senior lawyers are hired by a client to argue one case - surprisingly
coordination between them is minimum.
- Lack of professionalism in litigation has resulted in a reduction of the quality of work.

Vidhi research:
Presence of Senior advocates doubles the chance of a notice being issued in SLPs.

Entry and Ascent

● Litigation as a bastion of extreme privilege.
● Entry barriers include:
○ Fluency in English.
○ Social capital. Belonging to a family of lawyers means familiarity with legal
terms, access to successful lawyers which demystifies things, clients know you
faster by association, and you have the cushion of already existing resources and

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office space instead of building it from scratch. Systems of

apprenticeship/becoming junior of a senior based on connections.
■ Sociologically, see the dominance of certain caste and ethnic groups in the
profession in different cities - Brahmins in Madras; Parsis, Gujaratis,
Bohra Muslims in Bombay; post-partition refugees and Sikhs from Lahore
HC in Delhi. Could not identify any SC, ST, or OBC lawyers from the
GAs.
○ Gender.
● Ways to cement reputation/ascending to the upper ranks:
○ Foreign LLMs.
○ Becoming panel lawyers/standing counsel - assured income and visibility.
○ Academic treatises. Full-time academics aren’t leading lawyers because of BCI
rules.
○ PILs - GAs stake their reputational capital to support some prominent consti
causes that have caught the limelight. (SAs can’t do only pro bono work though -
they’d be seen as too far outside the mainstream).
○ Media appearances/op-eds in leading dailies.
○ Leadership positions in professional associations.

The Impact of GAs

- Perception of young lawyers and briefing counsel - view GAs with resentment -
unnecessarily idealized by clients and judges.
- Lawyers at law firms and other practice settings - found it difficult to break into the field
of litigation given the social connections that were perceived as a prerequisite. Viewed
workplaces like firms as more professional and meritocratic environments.
- Top rungs of litigation - still seen as an old boys’ network where social
connections and face value with judges are put at a premium.
- Concerns raised by older lawyer - GAs causing a decline in the profession - promoting
incompetence and indiscipline. Focus on earnings as opposed to quality.
- GAs reduce quality of developing jurisprudence - large number of briefs - lack of time.
- GAs contribute to delays in the system.
- Inaccessible due to high cost of engaging GAs
- Importance of role played by GAs - independent counsel and hence can speak out.
- Their knowledge in jurisprudence and stature - beneficial for judges.

Conclusion
- Changes in the profession, as a result of Independence, liberalization and globalization -
- Change in clients
- Key provisions of law
- Office technology

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- Several elements of the culture of the justice system have remained constant -
- Hierarchical structure of the bar - seemingly as a result of more deeply entrenched
features of Indian social life/ legal institutions.
- Reputational capital of Grand Advocates
- Larger structural shifts which may impact position of GAs -
- Courts are no longer exclusive sites for litigation – more specialized Tribunals for
specific areas of law.
- Law firms increasingly looking for ways to bypass senior advocates.
- Increasing number of law students - may shift the balance of power from litigators
towards law firms and other forms of legal practice.