India’s Grand Advocates: A Legal Elite Flourishing in the Era of Globalization, Marc Galanter and Nick Robinson

Colonial history has had a lasting influence on the development of the legal professions in many postcolonial societies in Asia. India is a good case in point. Under British rule, the Indian legal professions were divided into two tiers and sociolegal scholars often consider it a consequence of legal pluralism.

Pre-British India had learned specialists in law, but nothing that corresponded to the legal professions of the modern world, which are made up of qualified practitioners who earn a living by representing clients before courts and

²33 tribunals and designing transactions that are affected by legal rules. Today's Indian legal profession is a product of the complex of British-style legal insti­tutions imposed on India in the eighteenth and nineteenth centuries, but lawyers in India developed along different lines than their counterparts in England or elsewhere in the common law world.

The professional pattern as it crystallized in the late nineteenth century was a composite, drawing upon two main streams: (1) the royal courts in the Presidency towns (Bombay, Madras, and Calcutta) were ruled by the British crown and English law administered by British judges and there was a dual profession, with barristers briefed by solicitors; (2) until 1857 most of India (i.e.

Recruitment to the profession was through multiple sources: British barris­ters arrived from the UK to enjoy the higher fees that could be earned in India; elite Indians went to the Inns of Court in London to secure qualification; others acquired on-the-job training at the Indian courts; and (after the estab­lishment of universities in India starting in 1857) these were joined by those who had attended law courses in India.[...]

With the passage of the Advocates Act (1961) all the old grades of practi­tioners (vakils, barristers, pleaders of several grades, and mukhtars) were abolished and consolidated into a single body of advocates who enjoy the right to practice in courts throughout India.... Most of the old categories and grades of practitioners have been abolished, but new forms of diversity amongst lawyers have emerged. Lawyers may be found in firms, as in-house counsel, and in legal process outsourcing. All of these have proliferated in the last 20 years, but the great bulk of India's lawyers remain attached to the dominant model of professional life - the free-standing advocate who practices mainly, if not exclusively, at a single court. This model, formed in colonial times, was firmly institutionalized by the early twentieth century. In spite of the vast political and social change India has undergone, if we were to go around India in 2013 and observe lawyers, we would find a set of distinctive and characteristic features of professional life that are surprisingly similar to what we would have found in 1913.

We might think of these features as the “basic structure” of the Indian legal profession.

• Individualism: lawyers practice by themselves, usually assisted by clerks, and sometimes by juniors in a casual and temporary apprenticeship arrangement. There are few firms or other enduring units for coordin­ation and sharing among lawyers. Firms are proliferating, but still involve only a tiny fraction of practicing lawyers - perhaps 2 or 3% - and the larger firms are rarely focused on litigation.

• Lawyers are oriented to courts (and other court-like forums) to the virtual exclusion of other legal settings. The orientation to courts is displayed spatially: lawyers spend much of their working day at a particular court. They typically see clients in home offices or in chambers near or attached to the court, or simply at the verandah or a corridor of the court. The identification of the lawyer with a particular court goes back to the earliest days of British rule.

• The performance of the lawyer is overwhelmingly oral rather than written. With occasional exceptions, advocates focus on courtroom advo­cacy rather than advising, negotiating, or planning. That is, they are de facto barristers who operate in a setting in which the �?solicitor' functions of advising are far less developed. Judges frequently cite oral argument in their judgments and advocates feel little constraint in making arguments that were only partially developed in the written submissions, or that were not mentioned at all. The dominance of the barrister model is displayed in, and reinforced by, the structure of remuneration. Lawyers are typic­ally paid by the “appearance” - that is, for court work in a particular case on a given day.

• Lawyers are relatively unspecialized. Although some advocates have a special expertise in tax or criminal matters, few lawyers limit themselves to one area of law. [...]

The pre-eminence of the Grand Advocates is a contemporary expression of a long-standing and pervasive pattern of steep hierarchy at the bar.

We estimate that the number of pre-eminent seniors - those we are calling Grand Advocates - at the Supreme Court today is something on the order of 40-50. If we add those of comparable status at the High Courts, there are at most 100 that make up what one observer refers to as the “giants and legends of the litigation system”. This shape - very steep hierarchy, with a concen­tration of prestige, authority, and prosperity in a narrow group of senior lawyers - has been a constant feature of law practice in India in colonial times and after Independence, in the highest courts and in local courts, when the bar was flourishing and when it went through difficult times. [...]

Top advocates in India enjoy incomes that rival the most highly remuner­ated lawyers anywhere in the world. Abhishek Manu Singhvi, who along with being a top litigator is also a member of the Rajya Sabha, reported his annual income at 50 crore (about $10 million) in 2010-11. Ram Jethmalani, another leading lawyer who is a member of the Rajya Sabha, reported his at 8.4 crore ($1.7 million). Shanti Bhushan, a leading advocate who was on a public committee to design a new anti-corruption agency, disclosed an annual income of 18 crore ($3.6 million). Both Jethmalani and Bhushan are well over 80 and no longer litigate as much as they once did. One advocate estimated that top Supreme Court lawyers are generally earning between 10 and 50 crore a year (i.e. $2-10 million annually). Leading lawyers that appear before the Bombay and Delhi High Courts have comparable fees, while those elsewhere in the country usually charge considerably less.

Despite their high rates, client demand for these select lawyers is robust. Most of the leading advocates we interviewed conceded that their fees were exorbitant, but justified continuously raising fees as a mechanism to keep their workload manageable.

Young lawyers often complain about how difficult it is for them to break into the elite world of litigation. Some of these barriers to entry are obvious. For example, the Grand Advocates operate in an English-speaking world, where fluency is a necessity and British diction lauded. Only a minority of lawyers in India grew up in English-speaking households. Others struggled to gain the necessary command over the language to become a Grand Advocate. However, language is not the only filter restricting entry into this high- end world.

Family connections, or being part of certain social stratum, have clear benefits for a young litigator. [...] With a family member in the profession, clients and briefing advocates become aware of you more quickly and one can use the office space and library of one's family member. All of this helps in the early years of litigation when paying briefs are rare and income negligible. Indeed, being able to make it through the early bare bones years as a litigator is perhaps the most formidable screening mechanism for the profession, favoring the survival of those who come with wealth and connections.

Being part of the same social milieu also helps in arranging to junior with a leading senior. Most of today's prominent seniors had themselves juniored for a prominent senior, and older seniors we interviewed spoke proudly of their “alumni” who had gone on to become successful lawyers themselves. There is a feeling that if you don't have an actual father in the profession you at least need a “godfather” (i.e. a prominent senior that you junior with) who can help guide you in the early years and raise your profile, bringing you critical early cases. However, most seniors said they accepted juniors on the request of friends, retired justices, or colleagues - there was no formal selection process. Thus it is beneficial, if not essential, to be located in this social stratum in order to elicit the needed referral to a senior.

The powerful role of social networks in acquiring clients and setting up a practice helps perpetuate the disproportionate presence of certain ethnic and religious groups in the profession. For example, in Madras, elite Brahmins dominate the upper ranks of the bar because of their tight networks and long­standing proficiency in English. In Bombay, the Parsis, Gujratis, and Bohra Muslims were early first movers in the profession and continue to dominate its upper reaches. In the Delhi High Court, post-partition refugees, particularly Sikhs from the Lahore High Court, had an advantage, and their descendants continue to be disproportionately represented in the top ranks of the bar. The Supreme Court bar tends to be an amalgam of these privileged groups from around the country. Despite repeated inquiries we could not identify any Scheduled Caste, Scheduled Tribe, or Other Backward Class advocates who were regarded as part of the elite stratum of lawyers.

Women also have had a difficult time breaking into the small group of Grand Advocates and into the upper ranks of litigation more generally. Of the 81 senior advocates designated by the Bombay High Court in the 20-year period 1991-2010, only three were women. No women have been designated since 2006. Historically, women have faced discrimination from colleagues, judges, and clients, even if there are signs that such barriers may be lessening.... In 2012, after a woman lawyer was slapped by a male colleague in the Delhi High Court, 63 women lawyers successfully petitioned the Supreme Court to set up a committee to hear complaints of sexual harassment at the Supreme Court and in the lower courts. More women are entering litigation, but clearly discrimination and obstacles still remain. [...]

If Motilal Nehru or Muhammad Ali Jinnah visited the Supreme Court today they would find a Court not altogether different from the Allahabad or Bombay High Courts in which they argued in the early years of the twentieth century. The multiple courtrooms, buzz of lawyers and clients in the hallways, and the structure of the bar would all seem quite familiar. Independence, liberalization, and globalization may have changed some of the clients, key provisions of law, and office technology - briefs are now neatly typed on a computer - but many elements of the culture of the justice system have remained surprisingly constant. In particular, the steeply hierarchical structure of the bar has endured, suggesting that it is an expression of more deeply entrenched features of Indian social life, or at least of Indian legal institutions. The reputational capital of the Grand Advocate remains one of his primary assets in a court system marked by overwhelmed judges with little assistance, the multiplicity and blurriness of precedent, and the centrality of oral presen­tation. In such a context, being known and trusted by judges is a positional good of which there can only be so much, placing those who have it in both a potentially lucrative and commanding position in relation to the rest of the bar.

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