The relationship between advocates' Right to Advertise and citizens' Right to Information

The filing of a plea in Supreme Court to permit advocates to advertise for limited purposes has once again reinvigorated the long-standing debate of whether advocates should, like their contemporary professionals from competing fields, be allowed to advertise their professional services to their prospective clients.

Borrowing from the Victorian notions of British Common Law, the Bar Council of India Rules prohibit advocates from advertising, in an attempt to protect what Justice VR Krishna Iyer called the “canon of ethic and propriety for legal profession”.

The debate around allowing advertisement by advocates has historically been characterized as an issue of curtailment of their freedom of speech and expression. The discussion has been limited to scrutinizing the BCI’s decision from the lens of advocates, Article 19 rights and whether such advertisement amount to commercial speech and if so, whether such speech finds protection within the ambit of Article 19(1)(a) of the Indian Constitution.

This piece, however, argues that instead of characterizing the debate from the lens of Article 19 violation of advocates, it would be more illuminating if the focus is shifted to analyzing the issue from the perspective of the citizens’ right to information. This right to information, the Supreme Court has held, in the context of citizens requiring information about criminal antecedents of political candidates in election, emanates from Article 19 itself as the citizen must be informationally empowered to accurately exercise their freedom of expression. Therefore, it will be argued that the advocates’ right to advertise flows directly from the right to information of the common citizen and any curtailment on the advocates' right, is by extension, a violation of Article 19 rights of not the advocates, but that of the common citizenry.

The Supreme Court in Union of India v. Association for Democratic Reforms conclusively held that the citizens’ right to know is derived from the freedom of speech and expression that is bestowed upon them by our Constitution. Relying on State of UP v. Raj Narian & Ors, the Court in this case held,

“The people of the country have a right to know every public act, everything that is done in a public way by the public functionaries."

On juxtaposition of the above argument with the present bone of contention, it can be argued that if advocates and advocacy come under the garb of “public” functionaries and functions, the same protection of citizens’ right to know can even be extended to advocates through which the citizens could be empowered to know the previous professional antecedents of the advocates.

To argue that advocacy forms a part of “public function” (see CD Sekkizhar v. Secretary Bar Council), three propositions are submitted:

First, Dr BR Ambedkar interpreted that Article 32 is the most important fundamental right in the entire Chapter III of the Constitution because it is used to enforce all the other enshrined rights. Without writs, there would be no value in conferring any amount of right to the citizens as it would be rendered unenforceable. An advocate, in this context, is the person through which the enforcing of the most important right is executed. Therefore, of what importance would this most important fundamental right be, if the citizens are not adequately equipped with relevant information to select their best representation and secure an increased chance of enforcement of their fundamental right?

Axiomatically, fundamental rights will have no meaning without the right to file writs and this right to file a writ loses all significance if a suitable advocate cannot be hired by the aggrieved.

Second, citizens’ rights are not only affected by legislative enactments, but are also developed in close proximity to judicial doctrines. In 1970, who could have foreseen that a case filed for the protection of Edneer Mutt in Kerala by a 30-year-old priest would ultimately provide India with it most formidable constitutional weapon against the legislative tyranny of the State - The Basic Structure Doctrine? (see Kesavnanda Bharti v. State of Kerala).

Tailored advocacy and judicial examination not only lead to decisions and doctrines of public importance, but also lay down a framework that could alter the public relationship between the State and its subjects. For instance, tomorrow, a journalist accused of sedition by the State, may, if equipped with adequate information to select his best representation, challenge Section 124A of the Indian Penal Code (offence of sedition) and usher in a new era of rights by successfully convincing the court to strike down the draconian law. In this hypothetical scenario, advocates and advocacy would have served the public in an unprecedented manner. It is perhaps such skilful and meticulous approach of the advocates itself, that a simple case of denial of passport resulted in fortifying our fundamental rights more than ever (see Maneka Gandhi v. Union of India).

Third, post the dilution of the doctrine of locus standi by Justice PN Bhagwati, a single advocate has on many occasions represented the interests of a larger public and the outcome of such cases have bound all the members of the class that he represented. In wake of such PILs, it becomes difficult to not attribute a “public functionary” element to the advocate involved and view him singularly from a commercial lens.

For instance, the Maratha Reservation policy was stuck down by the Supreme Court recently, the effect of which trickled down to a larger population. Therefore, it is seen that although the elected legislature makes the laws, it is the legal representation of the parties that leads to a change in the policy. In this backdrop, it becomes increasingly relevant to empower the citizens of India so that they can choose their best possible representation. If the citizens were allowed under the freedom of expression to choose the legislative member who makes the law, they should also be empowered to have the freedom of expression through which they can adequately and credibly choose their legal representative who may initiate a change in the drafted law.

Hence, it cannot be categorically denied that advocates often undertake tasks of public nature and may, in certain capacities, be referred to as public functionaries. Therefore, for the respect of the citizens’ right to information, the advocates must be granted the right to advertise so that the citizens of this country may make informed decisions. To quote the judges from the landmark Romesh Thappar v. State of Madras,

“The public interest in freedom of discussion stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves.”

Extending the above observation to the present factual matrix, it is argued that citizens do influence intelligently the decisions (in this case, the hiring of an advocate) that ultimately affect them, and therefore, must be provided with the right to information regarding that decision.

From a pragmatic lens, it is important to highlight that for the citizens, the mode of selection of advocates is through the intricate network of personal connections (word-of-mouth). Therefore, many a time, they are denied their best representation owing to an information asymmetry in the market and because the choices are reduced to a minute sub-set of advocates who may not even possess the requisite skillset for that particular subject matter. Consequently, it is witnessed that clients have to switch advocates multiple times during a single case and even in intra-court proceedings.

Allowing advocates the right to advertise would provide the citizens with much needed choice and would democratize the selection of advocates rather than pushing the clients in a closed circuit of not-so-capable lawyers. The spirit of this argument is aptly summed up by the Supreme Court in Secretary, Ministry of Information and Broadcasting, Government of India and Others v. Cricket Association of Bengal and Others, wherein it states:

“One-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolized either by a partisan central authority or by private individuals or oligarchic organizations.”

The Supreme Court in Union of India v. Association for Democratic Reforms (2002) used syllogistic reasoning to extend the right to information to political candidates. It reasoned,

“If right to telecast and right to view to sport games and right to impart such information is considered to be part and parcel of Article 19(1)(a), we fail to understand why the right of a citizen/voter a little man to know about the antecedents of his candidate cannot be held to be a fundamental right under Article 19(1)(a)?”

It is suggested that the Supreme Court addresses the current debate by transposing the same reasoning in this context and rules that if the right of a citizen to know criminal antecedents of his legislative representative is part and parcel of Article 19(1)(a), why should the citizens’ right to know the professional antecedents of his legal representative not be afforded the same protection?

Additionally, the Court previously held that the right to vote is constitutional right and hence for the safeguarding of this right, it extended Article 19 protection to include within it the Right to Information. It is argued that if Article 19 protection can be extended for the protection of a “constitutional right”, there exists a strong case for it to be unequivocally extended for the protection of “fundamental rights” of life, liberty and due process, that is severely prejudiced owing to the information asymmetry among the citizens.

Lastly, vociferous supporters of the limitation on advocates’ right to advertise have often based their argument on the potential abuse of the right. However, it is time that the Indian judiciary prioritizes “rights” of citizens over the hypothetical notions of misuse and registers its agreement with the Romesh Thappar case, in which it was held,

“A freedom of such amplitude might involve risks of abuse (But) "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.”

The authors are practicing advocates at the Allahabad High Court.

Disclaimer: The views and opinions expressed in this article are those of the authors' and do not necessarily reflect the views of Bar & Bench.