This article is penned down by Ojasvi Gupta, from the Faculty of Law, Banaras Hindu University. It begins with a comprehensive take on pro bono public interest cases and focuses on the recently contested rule that prevents advocates members of an organization from appearing in the court on its behalf.
Table of Contents
The principle of rule of law and declarations of a just and dignified life does not amount to anything if justice is not accessible to all. Access to justice means being treated only according to the law, and if you are not treated fairly, then being able to get appropriate redress through mechanisms devised by the state for the purpose. Access to justice being a fundamental human right, restrictions on its path like financial and social constraints must be dealt with diligently by the legal fraternity to ensure that this right is not violated. One way it is dealt with is pro bono.
Pro bono, shortened Latin phrase of ‘pro bono publico’ translates to ‘for the public good’. It refers to the professional legal work undertaken without any consideration in return by legal professionals. These legal services are provided free of cost to those who require them, and as its name emphasizes, it is for the good and welfare of the general public. At times, pro bono services may also be rendered at low cost, if not entirely free.
Pro bono, in aspects other than legal, may also refer to corporate pro bono. Corporate pro bono refers to activities that focus on building the capacity of local nonprofits or mentoring local businesses.
In the arena of law, legal professionals who serve the public by providing free legal services to those in need do so on a pro bono basis. Such a person is considered to be bringing about a benefit for the greater good, instead of working for profit. It could be mandatory (according to the rules of a firm or organization) or voluntary.
People in genuine need of legal help or even advice are, thus, represented by lawyers for free or at a minimal cost – presenting them with an opportunity to meaningfully address their legal problems.
The concept of pro bono also helps lawyers to recognize their duty to utilize their resources for societal interests and work, albeit sometimes, in favour of the needy. It also provides lawyers with an enriching platform for professional and personal development, by building credentials and networks in diverse fields of work. Those who are looking for recognition among peers may also utilize pro bono practice for publicity and acknowledgment.
Public interest cases
Public interest cases encompass the practice area of law that focuses on the public good. It often intersects with other subject areas that address social changes and their causes or focus on specific populations or underrepresented groups such as disabled persons, elderly persons, children, inmates, minority groups, those with economic hardships, etc. The revolving question may be related to terrorism, environment contamination, road safety, exploitation, etc.
History and Evolution
Article 39A of the Indian Constitution provides the right to free legal aid. This provision of the Directive Principles of State Policy obligates the State to keep a check that the legal system provides equal justice to all its citizens. The State must offer free legal assistance to individuals who cannot access justice due to financial or social constraints.
The Supreme Court, in the Manubhai Pragji Vashi and Ors. v. State of Maharashtra (1995), held that unless the accused refuses, the state shall provide free legal help at its expense, otherwise the whole trial is jeopardized. Furthering the same idea, Justice Krishna Iyer pronounced in the M.H Hoskot v. State Of Maharashtra (1978) case that providing free legal assistance is the responsibility of the State and not the government’s charity.
Similar rules on free legal assistance can be found in procedural laws also. According to Section 304 of the Criminal Procedure Code, the State has an obligation to offer legal aid to anybody accused of an offence that is to be tried in the Court of Sessions. Moreover, Order 33 of the Civil Procedure Code discharges a person from paying court fees if he/she does not have the required means to seek justice.
The enactment of the Legal Services Authority Act (LSA), in 1987 has brought to light the fact that India has an expansive history of legal aid, backed by several decades of legislation, jurisprudential interpretation, and numerous state-funded programs. The Act states the scope of legal assistance available for the economically weak, backward section, and disabled people. The Act strives to educate and make people aware of the law, provide free legal assistance and ensure professional legal advice. The Legal Service Committees were also established at the Supreme Court and the High Courts with the Legal Services Authorities (Amendment) Act of 2002.
Over the previous decades, legislative as well as jurisprudential reforms in India have provided the groundwork for the underprivileged to get free legal services. However, its pro bono culture is a work in progress at present with many developments still awaited. While certain pro bono services are provided by several individual advocates, law firms, Non-Governmental Organizations (NGOs), law schools, and bar associations across the country, the demand for such services far exceeds the availability. In practice, only a few organizations are able to efficiently provide these services, relying, to a major extent on India’s unique Public Interest Litigation (PIL) process for legal assistance.
Pro Bono work at the international level
Access to justice is recognized globally, a vital human right, and violation of that right is a common subject for pro bono lawyers. The Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948, highlights the importance of access to justice through these articles:
- Article 8 of the Declaration provides the right to an effective remedy by the competent judicial institutions at the national level for act(s) violating the fundamental rights granted by the Constitution or by law to each individual.
- Article 10 of the Declaration entitles everyone to equality to a fair and public hearing by an independent and impartial tribunal, in the determination of their rights and obligations and any criminal charges against them.
The United Nations Development Program has recognized several international agreements or declarations as components of a normative framework for access to justice. In addition to these agreements and declarations, there are also various regional human rights systems, like NGOs, that have a history of recognizing the right to access justice.
Despite all of these developments, this right provided through government legal aid is not recognized in all jurisdictions, and substantial progress still needs to be made before it can be considered an international law norm. In places where it is recognized, a state’s universal access to justice program generally takes the form of the provision of legal aid that assists with the costs associated with legal representation, advice and court costs. In reality, however, legal aid systems can suffer severe limitations.
Pro Bono opportunities
There are multiple opportunities for lawyers looking for pro bono opportunities, namely:
- Partnering with NGOs or other organizations at the regional level such as law school clinics.
- Partnering with UN agencies, or establishing a setup with registrars of courts and tribunals to let anyone in need avail legal services.
- Working on pro bono cases assigned to by firms and in-house counsel.
Organizations role in public interest cases
Organisations play a significant role in ensuring that access to justice does not leave the marginalized group of people out of its ambit. It is not possible to compose an exhaustive list of the subjects of public interest, but they range far and wide. The subject matter could be for the welfare of people at large, such as an environmental threat, or target a specific social or economic group, like Scheduled Castes, students, etc. Some of the recent matters would be:
- Bonded labor matters
- Matters of neglected children.
- The exploitation of casual laborers and non-payment of wages to them.
- Matters of harassment or torture of persons belonging to Scheduled Castes, Scheduled Tribes, and Economically Backward Classes.
- Matters relating to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forests, and wildlife.
- Petitions from riot victims.
- Tenant rights
- Service matters
- Disputes regarding reservations for admission to medical or engineering colleges.
Need for advocate members to take pro bono cases
The debate on the appearance of advocate members of an organization before a pro bono public interest case, in which the organization is involved was ignited when the Delhi High Court was hearing a petition on the matter. Advocate Prashant Bhushan filed a petition challenging Rule 8 of the Standards of Professional Conduct and Etiquette framed by the Bar Council of India under Section 49(1)(c) of the Advocates Act, 1961.
Standards of Professional Conduct and Etiquette provide the ideal conduct every advocate needs to maintain professionalism. Some of these conducts include:
- An advocate should act in a dignified manner and with self-respect.
- An advocate should refuse to act in an illegal or improper manner towards the opposing counsel or the opposing parties and attempt to prevent his/her client from doing the same.
- An advocate shall refuse to represent any client who insists on using unfair or illegal means.
- An advocate shall not use unparliamentary language during court proceedings.
- An advocate should not enter appearance, act, plead or practice before a judicial authority if the sole or any member of the bench is related to the advocate.
- An advocate should not act or plead in any matter in which there may be their financial interests.
- An advocate shall appear in the court in the dress allowed by the BCI in a presentable manner.
- An advocate shall respect the office of a judge and maintain its dignity.
The bone of contention here is clause 8, which provides that any advocate should not appear in or before any Judicial Authority, for or against any establishment, if he is a member of the management of that establishment. Such an establishment could include NGOs, not-for-profit institutions, and other such structures. This rule does not apply to a member formally appearing as Amicus Curiae or without a fee on behalf of the Bar Council, Incorporated Law Society, or a Bar Association.
Thus, it prevents any advocate which is a member of an establishment to appear as its Counsel or stand against its Counsel. No lawyer can appear before a court in representing a society, corporation or institution, in which he is a member of the executive committee
The case Prashant Bhushan vs Bar Council of Delhi & Ors (2021) originated when several complaints were lodged against a Senior Advocate named Prashant Bhushan for violation of the Rule 8 of the Standards of Professional Conduct and Etiquette under the Bar Council of India Rules. According to the complaint filed by Major SK Punia, Bhushan has appeared on behalf of organizations like Swaraj Abhiyan, Common Cause and Centre for Public Interest Litigation (CPIL) despite being a managing or executive member of these organizations.
In response to the proceedings undertaken by the BCI for the alleged violation of the rule, Senior Advocate Prashant Bhushan filed a petition requesting the Honourable High Court to:
- Quash the complaint against him as he has resigned from the executive body of all the three organizations mentioned in the complaint, i.e. Swaraj Abhiyan, Common Cause, and Centre for Public Interest Litigation. Submitting the resignation letter on record from the said NGOs, he argued that the complaint no longer survives and should be quashed.
- Consider an amendment in the mentioned clause as it is arbitrary.
In addition to this, it was submitted that the BCI itself was considering an appropriate amendment in the said Rule 8, as a result of which the Hon’ble Court had not investigated the validity of the said rule. The petitioner further alleged that the Bar Council of Delhi failed to take cognizance of his submissions during the proceedings and referred the matter to the Disciplinary Committee for ‘Clarification’. Therefore, the act of the Respondents was considered highly arbitrary, without jurisdiction, discriminatory and unconstitutional.
Bhushan also argued that there have been numerous public interest cases led by establishments such as Common Cause, Swaraj Abhiyan, and Centre for Public Interest Litigation in which Senior Advocates and even retired judges of the HC have represented establishments of which they are members or are a part of the executive body. Citing examples of Late Justice V.M. Tarkunde and Late Justice Rajender Sachhar, who while being office bearers of the PUCL, have represented PUCL as Advocates in innumerable cases. He also claims that an identical complaint was made way back in 2001 against him on the ground that he was appearing in the public interest petition led on behalf of the PUCL despite being a member of the said organization.
The Supreme Court in the case of N.G. Dastane Vs Shrikant S. Shivde & Anr., (2001) held that the State Bar Council shall refer the case for disposal to its disciplinary committee when it receives a complaint or has reason to believe that an advocate is guilty of professional misconduct. Hearing the petition, the Hon’ble Delhi HC had directed the BCI to drop the proceeding. As to the validity of the contended rule:
- There appears no valid reason to prevent an advocate from appearing before the court on a matter which involves an organization, of which the advocate is a member.
- The primary function of the legal profession is to help promote the administration of justice and this clause impugns the function without an underlying rationale.
- The interpretation of the rule is discriminatory as it exempts lawyers who appear Amicus Curiae or those who represent various Bar Councils without charging a fee.
- There’s no justification in law barring an advocate from presenting an organization in a case, especially one taken up in public interest.
The judiciary possesses the ultimate responsibility of protecting the rights of individuals. Pro bono as an idea has major potential to achieve the goal of accessible justice to each and every one. Diligent pro bono work taken up voluntarily by individuals or organizations must be encouraged and acknowledged. Any rule that encroaches in a way or another without justifiable rationale must be investigated and possibly amended to ensure the matters of public interest are brought before the judicial institutions.
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