Seniors Extracting Work From Junior Lawyers Without Pay Violates Fundamental Rights: Madras HC

While taking a high moral stand for the betterment of junior lawyers, it is interesting to note that the Madras High Court in a most learned, laudable, landmark, logical and latest judgment titled Farida Begam vs The Puducherry Government in W.P. No. 17976 of 2019 and cited in 2024 LiveLaw (Mad) 235 that was pronounced as recently as on 03.06.2024 has minced just no words to state in no uncertain terms that senior lawyers not paying even a minimum stipend amount to the junior lawyers who work with them amounts to exploitation and breaches the junior lawyers fundamental rights. We thus see that the Madras High Court has been most explicit in suggesting to the Bar Council of Tamil Nadu and Puducherry (BCTNP) to fix a minimum stipend for engaging a junior lawyer to ensure his livelihood is protected. To put it differently, the Madras High Court has been most vocal in asserting that, “It is the duty of the Bar Council of Tamil Nadu and Puducherry (BCTNP) to ensure that no young lawyer in the State as well as the Union Territory gets exploited by their seniors by extracting work without even paying minimum stipend.”

It must be noted that a Division Bench comprising of Hon’ble Mr Justice SM Subramaniam and Hon’ble Mr Justice C Kumarappan while taking potshots at the exploitation of junior lawyers stated unequivocally that, “Exploitation, at no circumstance, can be permitted or appreciated. Therefore, it is the function of the Bar Council to ensure that the livelihood of these lawyers are protected by fixing minimum stipend.” It is worth mentioning here that the Court was hearing a plea that sought implementation and enforcement of The Advocates Welfare Fund Act, 2001 to Puducherry Union. It is worth paying attention that the interim direction was issued on a writ petition that had been filed by Farida Begam complaining about the Advocates Welfare Fund scheme not being implemented effectively in Puducherry.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice SM Subramaniam for a Division Bench of the Madras High Court comprising of himself and Hon’ble Mr Justice C Kumarappan sets the ball in motion by first and foremost putting forth in para 1 that, “It is brought to the notice of this Court that about 200 applications were submitted seeking benefits under The Tamil Nadu Advocate’s Welfare Fund are pending.”

As we see, the Division Bench then points out in para 2 of this robust judgment that, “Mr. C.K. Chanrdasekar, learned counsel appearing on behalf of the Bar Council of Tamil Nadu would submit that the Government has to sanction and release the funds for the purpose of payment of fund to the eligible members under the Welfare Fund Scheme.”

Simply put, the Division Bench then specifies in para 3 of this notable judgment that, “As far as the Government of Puducherry is concerned, the benefits are yet to be paid to the lawyers under the scheme and the Government has to take a decision. In this context, the learned Additional Government Pleader appearing on behalf of Puducherry seeks one week time to get instructions.”

While taking a very strong and principled stand, the Division Bench very rightly observes in para 4 of this noteworthy judgment that, “It is needless to state that the lawyers practicing in Puducherry is also the Advocates enrolled in the Bar Council of Tamil Nadu and Puducherry and the legal practitioners in Puducherry Courts, are therefore eligible to avail the benefits under the welfare Scheme. There cannot be any discrimination amongst the members in Tamil Nadu and Puducherry. Uniformity is to be maintained in this regard in order to redress the grievances of lawyers, who all are practicing in Puducherry also.”

Needless to say, the Division Bench then states in para 5 of this concise judgment that, “Thus, the learned Additional Government Pleader has to place all the facts before the Government and secure necessary instructions to extend financial contribution enabling the Bar Council to conduct the Welfare Scheme in accordance with the terms of the scheme.”

Most commendably, the Division Bench then deems it fit to postulate in para 6 of this refreshing judgment that, “Since, large number of applications are pending as far as of the State of Tamil Nadu is concerned, we are inclined to suo-motu implead the Principal Secretary to Government, Government of Tamil Nadu, Finance Department, Fort St. George, Chennai – 600 009 and Secretary to Government, Government of Tamil Nadu, Law Department, Fort St. George, Chennai – 600 009 as respondents.”

Do note, the Division Bench notes in para 7 of this brief judgment that, “The learned Additional Government Pleader takes notice on behalf of the suo-motu impleaded respondents and seeks time to secure instructions, why the funds are not released for the applications pending for long time.”

To be sure, the Division Bench then specifies in para 8 of this remarkable judgment that, “The petitioner has to serve the copy of the papers to the learned Additional Government Pleader for Government of Tamil Nadu.”

Most lamentably, the Division Bench then laments in para 9 of this sagacious judgment lamenting that, “Further, it is brought to our notice that young brilliant lawyers after enrolling themselves as Advocates in Bar council of Tamil Nadu is unable to survive on account of the fact that the senior lawyers/lawyers engaging the services of the these junior lawyers, are not paying even the minimum stipend to meet out their livelihood.”

Quite forthrightly, the Division Bench propounds in para 10 of this realistic judgment holding that, “Extracting work without payment is an exploitation and directly in violation of the fundamental rights enshrined under the Constitution. The livelihood of these young brilliant lawyers, who have started their practice with a fond hope must be encouraged by the senior lawyers, legal fraternity and the Courts.”

Be it noted, the Division Bench notes in para 11 of this commendable judgment that, “In this context, Section 6 of the Advocates Act, 1961 denotes “Functions of the State Bar Councils”. Section 6(1)(d) stipulates “to safeguard the rights, privileges and interests of advocates on its roll”. Sub Clause (e) states that “to promote and support law reform”.”

Most significantly, the Division Bench mandates in para 12 what constitutes the cornerstone of this enriching judgment expounding that, “Safeguarding the rights, privilege and interest of the advocates is one of the function of the State Bar Council and therefore, the livelihood of these young lawyers, who have enrolled with great ambitions are also to be protected. In order to protect the livelihood of these young lawyers, Bar Council should ensure that minimum stipend is paid by the lawyers, who all are engaging the services of the young lawyers.”

Most forthrightly, the Division Bench then hastens to add in para 13 of this cogent judgment underscoring that, “Exploitation at no circumstances can be permitted nor be appreciated. Therefore, it is the function of the Bar Council to ensure that the livelihood of these lawyers are protected by fixing minimum stipend to be paid in the event of engaging the services of the junior lawyers, who have enrolled.”

It is worth noting here that the Division Bench then notes in para 14 of this rational judgment noting that, “In this regard, the learned counsel appearing on behalf of the Bar Council has to secure necessary instructions for framing guidelines/instructions for the advocates, who have enrolled in the Bar Council of Tamil Nadu and Puducherry.”

Finally, we see that the Division Bench then concludes by directing in para 15 of this creditworthy judgment that, “Post the matter on 12.06.2024.”

All said and done, it must be underscored yet again that what the Madras High Court has held so very commendably in this leading case deserves to be implemented not just in Tamil Nadu and Puducherry but also in each and every State of India by framing the necessary guidelines in this direction. Those who are in the legal profession know it fully well that what the Madras High Court has dared to say so openly is an unpalatable truth from which we cannot run away. There are very few senior lawyers who ever pay their juniors and here too the amount is very less as has been articulated so very forcefully by the Madras High Court from which we cannot turn away our face and must be forthright to face it willingly.

Above all, it is the Bar Council of India which I have noticed is making stricter and stricter the entry of young persons into the sacred legal profession by introducing All India test before becoming a lawyer and strict checking after every five years of lawyers by ensuring that they are practicing regularly and are not in any other full time profession which is definitely a good thing but one has to concede that on financial support to young lawyers in most of the States we see that it has not done anything worthwhile on this till now and this leaves a lot to be desired to be done even though it directly affects the young lawyer himself/herself and so also his/her family who are hugely dependent on him/her. It is high time and what the Madras High Court has pointed out must be seriously taken note by the Bar Council of India and adequate steps must be taken most promptly to ensure that young lawyers are not exploited mercilessly, endlessly and shamelessly! It thus merits no reiteration that the earlier this is done, the better it shall be in the long term interests of the lawyers and of the judiciary of which they are an integral part! There can be just no denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.