AG KK Venugopal bats for contingent fee, litigation funding to ease access to justice

Speaking at Monday’s Constitution Day celebrations at Vigyan Bhavan, Attorney General for India KK Venugopal mooted some interesting suggestions to ensure timely and affordable justice for the Indian litigant..Pendency of cases and methods to tackle the same formed the crux of Venugopal’s speech on the topic ‘Roadmap to truly affordable and timely Justice’. Also present on the panel were Union Finance Minister Arun Jaitley; former Supreme Court judge Justice AK Patnaik; Director of the National Judicial Academy Justice (Retd.) G Raghuram; and Supreme Court Bar Association Vice-President Sukumar Pattjoshi..Quoting from his research on pendency figures, Venugopal said,.“You would be surprised to know that in 1950, there were only about 5,000 cases which were pending. Today, there are 30 million cases; the numbers vary from time to time…There is the enormous problem of cases being delayed at every level in the hierarchy of courts…it takes an average of six years at each stage.”.He went on to note that the courts have read the right to access to justice as part of the right to life and liberty under Article 21 of the Constitution. Noting that the same was merely a “mirage”, the AG was critical of the government for having neglected the ideal..“I think that has been ignored to quite some extent, Mr. Jaitley may not agree with me. Far more needs to be done by the government of India and the governments of the states…to bring about affordable, and the same time, timely justice, is a very formidable task.”.Venugopal attributed the lack of judges as the primary reason behind the burgeoning pendency of cases. He compared the judge-to-population ratio of India with those of developed countries..“In 1998, the number of judges to population of this country was 10.5 (judges per million people). Today, with the efforts of the courts and the government, the number has increased to 19…one would think it is wonderful, but it is not, because in Australia, it is 41.6. In Canada, it is 75.2; in England, it is 50.9; and in the United States, it is a whopping 107 judges to a million….…The real problem is that we do not have sufficient number of judges. The total increase in population is exponential, but so far as the number of judges is concerned, it is practically stagnating.”.He suggested that the total amount of funds allocated to the Judiciary is used towards appointing more judges and providing the existing ones with infrastructure, staff, electronics, facilities etc..“Otherwise, you won’t find persons wanting to become judges”, he warned..He referred to Justice Patnaik’s observation that in Madhya Pradesh, the total number of filings are practically the same as the number of disposals, noting that this was not a problem unique to the state. To combat this, he suggested,.“If you are able to dispose of all the arrears in one stroke, the cases filed today will be disposed of within the end of the year. Therefore, to tackle this problem on a war footing, give a five-year period for the purpose of completely wiping out the arrears…you have to devise methods to do so.”.Another important aspect that comes in the way of access justice, in the AG’s opinion, was the amount of fees charged by lawyers. He stated this was not a problem in 70% of the country, but only in big cities. On a lighter note, he said,.“Many of the senior lawyers in the Supreme Court charge very high fees. Of course, I was one of the culprits at one time, not to compete with some of my friends, who charged far higher fees. Today, I don’t have that problem, because while appearing for the government, one can never be charged with quoting high fees!”.Noting that very few lawyers were willing to do pro bono work, Venugopal floated the idea of a contingent fee for lawyers..“There is something known as a contingent fee, where you as a lawyer take complete responsibility from beginning to end, in which event the client does not pay anything except the court fees. 30% would be the maximum that a lawyer gets if he gets a money decree… It is for the judge to see that the rest of the amount (70%) is distributed directly to the client….…This is something that has to be explored. There is a large number of lawyers who are very competent, who will be prepared to take up cases because they do not have enough work…it will be very good if it [contingent fee] becomes a rule.”.The AG stated that this concept would be “abhorrent” to the Bar Council of India, as it would fly in the face of Rule 20 of the Standards of Professional Conduct and Etiquette of the Bar Council Rules, which states that an advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof..“This was an old British idea which was there because they believed that the legal profession is a noble profession.”.Venugopal went on to lament the state of the legal profession, citing instances of violence and unruly behavior by lawyers in Tamil Nadu and other parts of the country in the recent past..“We will find it difficult to call it a noble profession unless we rapidly change. But these are only a minority of lawyers. Don’t get a wrong impression, the majority of the lawyers are respectable.”.Coming back to the topic, Venugopal proposed an alternative to the contingent fee idea – that of litigation funding..“…has been tried successfully in the United States. Again, people will say that it can’t be done, but we should look into litigation funding. It is where a commercial enterprise evaluates a case and decides as to whether there is a good chance of success, in which case, they take up the case on the 30%-70% basis and conduct the entire case through power of attorney on behalf of the client… Companies should as part of CSR think of litigation funding…”.Towards the end of his speech, Venugopal suggested other ideas to stem the flow of pendency and consequently ease access to justice, including using retired judges to decide cases, and Alternate Dispute Resolution (ADR), among others..“We have to try something; we cannot allow this state of affairs to go on.”.Watch the video: