In October, I interviewed lawyers across different courts, and with different levels of experience, to understand how their work was affected by the pandemic, and if they wanted courts to open up physically. I found that many senior lawyers actually found it easier to attend multiple hearings in a day at courts across the country, while most junior lawyers were hit by an overall reduction of work and the loss of the ability to network.
The impact on lawyers also depended on the forum in which they practised. All the top lawyers in the country practise before the Supreme Court, which began functioning online in March, the same month the lockdown was announced. Many district courts, meanwhile, never got around to setting up online hearings.
As one senior lawyer put it: “The pandemic led to consolidation at the top, fragmentation of the middle and decimation of the bottom.”
In the course of writing the piece, I had many conversations that were more broadly about the profession: about the work lives of lawyers, their outlook towards the profession and the deep inequality that exists in the legal world.
In my conversations, many lawyers, especially juniors, were very hesitant to say anything on record about it. Those who were just starting out were extremely troubled by the state of affairs, which had only been exacerbated by the pandemic.
Everyone agreed that the inequality within the profession needed to be discussed more widely. But even lawyers who one would consider as being “mid-career”, having spent as long as a decade in the field, were cautious when speaking about the profession.
“Why do you want to fire the gun from my shoulder? Why do you not quote someone else on this,” one lawyer told me, laughingly, when I broached the subject of how seniors fared during the lockdown.
The divided legal system in India
In India, there are two types of litigating lawyers: senior advocates and all other advocates. This system is enshrined in law, in the Advocates Act 1961. Under the current system, senior advocates get a host of benefits, such as priority in mentioning urgent matters before courts. They are also generally given more of the court’s time by judges. Because of these privileges, these lawyers are by far the most in demand among clients and are the most expensive. They are treated with reverence in the legal world, and even judges are often cautious of not irking senior advocates.
Though on the surface this hierarchy is widely accepted and assumed to be a part of the Indian legal system, when I probed deeper in the course of my research for the piece, many lawyers said they believed that it was inherently problematic.
It isn’t as if this debate has never been made public. Senior lawyer Fali Nariman has termed the prevailing arrangement a “caste system”. Indira Jaising, also a senior lawyer, had filed a petition in the Supreme Court to abolish the system – in 2017, the court upheld the system in principle, but recognised that it leads to economic disparities, and laid out clear and objective guidelines for designating lawyers seniors. These guidelines have not yet been implemented.
On the other end of the spectrum are junior lawyers, many of whom do not yet have a voice or standing in the profession. They often rely on seniors to refer clients to them and are thus careful not to challenge them or risk getting into their bad books in any other way.
Juniors are usually paid paltry sums, not enough to sustain themselves – it is not unheard of for juniors to not get paid at all. But, as one lawyer explained to me, they cling on in the hope that after working on matters referred to them by senior lawyers initially, they – the juniors – will start getting their own clients, and eventually ascend to the position of seniors.
Over the course of the conversation, I was struck by the fact that though many lawyers said the system needed to change, most had made their peace with it and were more interested in gaining the status of seniors for themselves some years down the line.
The ability to survive struggles is seen as a virtue – one has to “deserve before you desire”, as one lawyer put it. But of course, it creates a cycle where the only lawyers who thrive are often those who can afford to remain in a low-paying profession because they are from well-to-do families.
This creates a fortress that those without privilege cannot access. Lawyers who cannot afford to work for low pay for years struggle to enter the profession or survive within it. It also means that clients who are from poorer backgrounds, who are unlikely to have access to senior lawyers, cannot easily access courts. All this in a profession that is often referred to as “noble”, by lawyers as well as judges, and that holds its traditions and mores close to itself.
“Ye bhare pet walon ka profession hai,” one young lawyer told me – this is a profession for people with full stomachs.
Most lawyers agreed that the system of designating seniors, who cornered the most privilege, power and money, needed to change. But they usually said this only when specifically asked about it, and not of their own accord.
I was reminded of a story recounted by the writer David Foster Wallace in a famous commencement speech delivered in 2005. In it, two young fish who are swimming meet an old fish, who asks them, “How’s the water?” The two fish go on swimming for a while, and then one of them asks the other, “What the hell is water?”
Similarly, with lawyers, it seemed as if they had become so used to the system that they worked in, and so invested in succeeding within it, that they had almost forgotten one of its most deep-rooted problems.