I happened to come across a writ petition in the BHC by someone claiming to be an RTI activist seeking investigation of BMC paying an amount of Rs. 82 lakhs to Shri. Aspi Chenoy for his appearance on behalf of the BMC in a case instituted by Kangana Ranaut, so too seeking the withdrawal of his senior designation. Shri Aspi Chenoy is one with whom I share a warm relationship and have disagreements with him only on certain issues of public concern. I hold him in high esteem. Though it cannot be disputed that there are many well meaning RTI activists who do yeoman service sometimes even risking their very lives for a public cause, there are any number of RTI activists who are extrortionists.
I am no one to comment on the credentials of Mr. Sharad Yadav who has instituted the writ petition as aforesaid. Even assuming him be malicious and ill-motivated the payment of astronomical amounts to lawyers by the public authorities/statutory bodies like BMC in defending cases of no real public interest as in Kangana Ranaut’s case is a matter of great concern. The statistics which NLC could gather, though incomplete, would show that crores and crores of public money is wasted as fees to senior advocates which serve no public interest whatsoever, nay, often are contrary to the public interest. Many state governments have spent crores of rupees in engaging senior advocates to oppose investigation of even heinous crimes by the CBI while public interest demand that investigation should be allowed to be conducted.
Very often the senior counsels who are paid crores of rupees as fees, instead of defending the public purpose, utilize such engagements for advancement of their private interests. The NJAC case is a classic example. The Union of India and the various state governments paid crores as fees to senior advocates to defend the Constitution 99th Amendment Act. However, none of them were really concerned about defending the government. For them, it was an opportunity to appease the judges for in the NJAC case the real Petitioners were the Hon’ble judges who had used the lawyer’s body, SCAORA, as a pawn to retain their monopoly in the appointment of judges. None of the senior lawyers even raised the core issue of the very non-maintainability of SCAORA’s PIL, for it couldn’t have invoked Article 32 without pleading violation of fundamental rights.
The Indian judiciary is at crossroads. Unless we allow it to be criticized, hold the mirror towards it and are willing to cure the serious malaises it is suffering from, it has no future at all.
Today, the courts refuse to afford a fair hearing to the ordinary lawyer, holding the brief for a poor litigant. Even petitions under Article 32 involving issues of life and death are dismissed by non-speaking orders, not to speak of petitions under Article 136. Article 137 of the constitution which provides for review is a dead letter today, because almost all review petitions are dismissed in chambers without a hearing, by non-speaking orders.
With the virtual court becoming the norm today, only the Harish Salves, Rohotghis, Kapils, Singhvis are heard, no matter how grave the issues which an ordinary lawyer or a party-in-person seeks to expound.
The fact that even state governments and public authorities spend crores of rupees to engage a few lawyers even when they have a well structured establishment to conduct cases like the Advocate Generals, standing counsel, etc., is the undeniable proof of the perception that our superior courts do not extend fair hearing to all and sadly prefer a few lawyers at the expense of others. Such ex facie discriminatory practice, some people seem to justify as based on merit and competence. Nothing could be fartherer from truth than that. In many high courts young lawyers, even less than 10 years of standing, can demand a fee ten times more than that of their peers and equal to that of a lawyer of their father’s age because they can assuredly get “justice” being the sons/daughters/nephews of sitting and retired judges qua the ordinary lawyers.
Things will not change unless the system of judges designating lawyers as senior advocates and ‘judges appointing themselves’ is abolished.
Mathews J Nedumpara
- September 29, 2023