‘Magistrate Has No Way To Distinguish An Incompetent Lawyer From A Fraud’

Lawyers without degrees and those with questionable enrolments have infiltra­ted the system and are holding it hostage. With more than three decades of experience spanning high-profile trials and appeals to the high courts and the Supreme Court, senior advocate Rebecca John explains to Ushinor Majumdar what is at stake, elaborating that genuine lawyers also need to act in the tradition of the profession. Excerpts:

Why have fake lawyers in the system gone unchecked?

In India, we have fake degrees in other professions, such as medicine, too. I have seen cases where someone else appears at the medical examination in place of the candidate. Unfortunately, most of these disciplines have regulatory bodies—Bar Council, Medical Council and so on. Obviously the regulatory bodies have failed; else they would have weeded out the people without degrees or with fake degrees.

How far has the problem penetrated?

The debate is incomplete unless you look at two sets of people. One impersonates the role of a lawyer, and the other has assumed the role validly but does not fulfil his/her constitutional role. Not all who don the robe and the band understand the meaning of wearing them and the oath they took to become lawyers. The freedom movement was led by lawyers—Gandhi, Nehru, Jinnah, Ambedkar. Today, in the US, lawyers have questioned the Trump administration and stood in the way of absolute anarchy, ensuring the rule of law. Instead, in India, lawyers start debating if the accused in Nirbhaya rape cases should be given a defence at all. A lawyer has a constitutional obligation to defend everybody.

How easy is it to sneak into the profession?

With basic speaking skills, a black coat and a band, anyone could enter a court and try to pass off as a lawyer. A majority of the country’s unqualified lawyers are found practising in district courts, which are the courts of original jurisdiction. The appellate system of higher courts exists on these bread-and-butter lawyers. It requires years of practice to know how to deal with testimony, cross-­examinations, electronic evidence and so on.

What is the impact of a fake lawyer?

The litigant feels the impact immediately. The law graduates today are finely attuned with research skills and the academic understanding of the law, which extraordinary teachers such as Upendra Baxi and B.B. Pandey gave us. When you skip this legal education, the client is rid of its benefit first.

And on the legal system?

Often, the judges ask us to expand on relief by asking us—as officers of the court—for further options to see how far they can go. A lawyer without the education is unable to give that kind of assistance; it results in a poor judgment. The judge is as good or as bad as the arguments made before him and this is where unqualified lawyers will fail.

If fraud vitiates, what about the orders passed in cases argued by fake lawyers?

It is a very subjective issue. If a lawyer has a power of attorney, it will give the litigant some protection. A losing litigant can easily go back to the court and ask to set aside the judgement. The losing litigant can say that his representative being unqualified effected his arguments—and therefore the final judgment.

But some have managed to survive scores of cases and years of practice.

If someone enters the system through the backyard using a lie, I don’t expect them to be very credible through the rest of their practice. But they will continue to practise by diminishing the system. Their representation would become ineffective for the man or woman they are representing and diminish the litigant’s constitutional rights. Every lawyer wants to win or at least get something even out of a loss. In a recent case, the court reduced the sentence for my client only because I made an honest disclosure about the limitations of my argument.

How do they manage to hoodwink magistrates and judges?

There is no system by which a lawyer has to present one’s degree for verification bef­ore arguing the case. A judge can’t physica­lly verify the credentials of a person unless there is something extremely suspicious. Sometimes, some of these lawyers could be street-smart and have picked up a good judgement through just listening. Besides, there are also enough incompetent lawyers. So a magistrate has no way to distinguish whether the lawyer is incompetent or fake. A judge can verify the enrolment number, but these will be random checks because of the sheer number of cases they deal with. In England, the bench is very strong and if the judges feel that the lawyer is not giving the best-available defence, the judge can report the lawyer. The issue of legal malpractice remains underdeveloped in India.

Can we replicate proximity cards (as used in the Supreme Court) in lower courts?

There was a lot of resistance to proximity cards even in the apex court, but it was bulldozed. It’s time we had these at the high courts as well. But its failure of the regulatory body and they have been set up precisely to check this kind of malpractice. Its only when the Supreme Court has taken so much interest that the regulatory body has started showing some urgency. It is the bar councils that have given licences to law colleges and they have to regularly check on its courses, quality of education, faculty and whether people get degrees without even going there. Regulatory bodies have abysmally failed.

Both fake and genuine lawyers stand around outside lower courts trying to solicit clients. Is there a foolproof way of spotting a faker?

Its not just lower-court lawyers who engage in crude soliciting. Very senior and prominent lawyers engage in sophisticated soliciting by publicising their clients on their websites and social-media sites, violating the Advocates Act. A litigant can’t go up to a lawyer and ask to see their proof of enrolment. In small-town India, with poor, vulnerable clients, it is not a workable idea. In big cities, clients come to us through word-of-mouth references and reputation.

Do bar associations allow these because they don’t want to upset their vote base?

Local bar bodies have to come into the picture, but they are complicit. It is because they don’t check, that the problem has become so rampant. They don’t speak out because they are afraid that it may diminish their voter-base and apprehensive if it will affect the quality of their orders from the court. This self-interest makes them toothless. In so much that has happened in the last few years, I am yet to see any eff­ective statement from lawyers’ bodies that will show that the constitutional system is alive and kicking.

How do former law clerks easily infiltrate the system without a degree succeed at practice? Does it mean that hands-on training is enough to bypass it?

Some law schools can be dispensed with because there is no consistency in the standards of legal education is imparted. Even in perfectly legitimate chambers, we learnt our best lessons from the law clerks. So, I am not surprised that a law clerk could become a good lawyer. There are many such examples where they have got a law degree legitimately and enrolled themselves. But, they can also present the camouflage in a more effective way because they know the law. Being a lawyer is a combination of both the legal education and hands-on training with a senior or a firm. I can still recall things that I learnt while observing the senior lawyer I trained with. A lawyer without training is as bad as one who has hands-on experience but no degree.

Who has the greater responsibility to check degrees? The Bar Council or the universities?

It is the village that brings up the child. It takes everybody invested in the system to ensure that it is not subverted. I won’t attribute extra responsibility on just one party. Universities have to impart legal education in the required manner and then the regulatory bodies have to do their job—the responsibility is equal. In India, we have eased out on individual responsibility and put it on the other person. The responsibility is both of individual as well as the institution.

Why do universities give knee-jerk reaction when fake degree cases are reported?

There are a large number of universities that shouldn’t be in the business of imparting legal education. Between Delhi and Chandigarh, you will find that universities have come up in what used to be fields and brick kilns. The minute you commercialise this space, the university is suspect. I am not talking about the big private universities, but many small ones that have mushroomed under the banner of privatisation of education. This is a consequence of the state exiting two very important sectors: health and education. The systemic malaise spreads simultaneously with the state’s exit.

Should seniors also be careful who they are recommending to the Bar and also whom they are employing?

Personally, I attest an enrolment if only I know the person directly or if someone I trust has recommended him/her to me. If I am not sure, I always cross-check.

Video by Jitender Gupta; Edited by Suraj Wadhwa