Pro Bono or Just Unpaid? – Balancing the Rights of Young Lawyers with the Pro Bono Mandate

**Archit K. P.

Introduction

‘Pro bono’ is derived from the Latin phrase ‘pro bono publico’, meaning ‘for the public good’. Within the legal profession, it refers to the practice of providing legal assistance free of cost by advocates. Pro bono legal services are a facet of the right to equality before the law under Article 14 of the Constitution of India. Further, the Directive Principles of State Policy beck upon the State to provide free legal aid to ensure equal access to justice. 

Recently, the Department-Related Parliamentary Standing Committee [‘Committee’] on Personnel, Public Grievances, Law and Justice proposed the implementation of a pro bono mandate. The Committee suggested that the Bar Council of India should mandate that every advocate appears in at least one pro bono work a year, in order to be eligible to apply for relief funds from the State or All India Bar Councils.

Through this piece, it is contended that the blanket imposition of a pro bono mandate on advocates, with no regard to their financial conditions, would have a disproportionate impact on young lawyers. This is especially concerning considering the fact that the Committee itself, in its report, has acknowledged that lawyers are not getting adequately compensated for their work. The piece will go over the rationale behind imposing pro bono work and conduct a stakeholder assessment before arriving at an appropriate solution to the problem.

The Case for a Pro Bono Mandate in India

In order to achieve the end of access to justice for all outlined in the United Nations Sustainable Development Goals and Articles 14 and 39A of the Constitution of India, lawyers must be incentivised to take up pro bono work. Presently, the free legal aid structure is not lucrative for experienced advocates – with the nominal compensation ranging from ₹1,500 to ₹7,500.

The Committee has also suggested including the number of pro bono works undertaken in the criteria for assessing advocates applying for judicial posts, senior advocate designation, etc. This serves to adequately incentivise advocates for undertaking pro bono work.

As per the India Justice Report, 2022, the per capita spending on legal aid was ₹4.57 for 2020-2021. At the same time, the Committee found that the majority of India’s population was eligible for legal aid. While the Committee recommends increasing the Grant-in-aid to the National Legal Services Authority [‘NALSA’], this does not solve the problem. This is because the abysmal per capita spending on legal aid cannot be wholly attributed to budgetary allocation. In 2021-2022, a majority of states left more than 20% of the funds allocated by NALSA unutilised.

As such, the introduction of a pro bono mandate is a welcome step, serving to promote free legal aid without having to resort to the coffers of the government. A mandate ensures that the aim of improving access to justice is not shackled by the bureaucracy.

Pro Bo-not by Choice: The Income Disparity among Indian Lawyers

In 2020, the Vidhi Centre for Legal Policy published a report after surveying High Court advocates across India. As per the report, a significant chunk of those surveyed opined that new lawyers earned anywhere between ₹2,000 and ₹5,000 per month. 

In Pankaj Kumar v. Bar Council of Delhi & Ors. (2022), the Delhi High Court noted that many of the younger advocates get paid a sum so meagre that they cannot bear the basic expenses of accommodation, food and travel. Per the Court, the legal profession portrayed a ‘sorry state of affairs’ wherein those less financially endowed cannot survive.

The underpayment of young legal professionals in India is a long-standing problem. The idiom ‘paid peanuts’ seems to have evolved from the plight of young Indian lawyers, given that in personal accounts, present-day senior advocates recollect days when they were paid, quite literally, in jackfruits and peanuts.

However, at the upper echelons of the legal system, Indian lawyers mint money – making approximately ₹5 lakh to ₹15 lakh per hearing. To put that into scale, it is impossible to calculate a percentage increase from juniors across the country who do not get paid at all since division by zero is undefined. Put simply, the elite earn infinitely more than juniors in the legal profession, giving rise to a gargantuan disparity in income.

This disparity in income makes it so that the pro bono mandate has a disproportionate impact on younger lawyers. Most young lawyers struggle to survive in metro cities, given their deplorable or simply non-existent pay. To add insult to injury, they are usually overworked and treated as slaves by their seniors, in the words of the Hon’ble Chief Justice of India. 

Although the young, unpaid and overworked lawyer may be rendering legal assistance free of cost, their situation is far removed from that of a lawyer taking up a pro bono case. While the former is forced into accepting work at a nominal fee, the latter’s act is a charitable affair. 

A Progressive Approach to Mandating Pro Bono Legal Services

There is an inherent inequity in a flat pro bono mandate on Indian legal professionals, irrespective of their income. The pro bono mandate unfairly blocks young lawyers’ access to relief funds from the Bar Council of India while they already struggle with little to no pay.

From the analysis in the previous section, it is understood that it would be relatively difficult for younger, underpaid lawyers to take up pro bono work. The ability of an advocate to afford to undertake a pro bono case can be expressed purely in economic terms as a function of their financial condition, as they are effectively foregoing money. Accordingly, it is argued that there is merit in juxtaposing the pro bono mandate and the tax mandate in this assessment.

In a bid to promote tax fairness, most countries have adopted a ‘progressive tax’ system. Progressive taxation is based on the concept of ‘ability to pay’, which states that people with different amounts of wealth or income should pay tax at different rates. Under a progressive tax system, high-income earners pay more tax than low-income earners, as opposed to a flat tax system.

The tax system is analogous to a pro bono mandate as they share a similar end – social welfare. The flat imposition of a pro bono mandate, as envisaged by the Committee’s report, corresponds to a flat tax system, which does not account for people’s ability to pay.

A recent study has shown that progressive taxation, i.e., taxation based on income/ ability to pay (higher taxes for those with higher incomes), leads to an increased willingness to pay tax. Conversely, the study shows that when taxes are not progressive, people are far less willing.

In this context, the concept of ‘ability to pay’ can be squarely applied to the pro bono mandate as lawyers do not share the same ability to afford to take up pro bono work. Thus, implementing the pro bono mandate on an ‘ability to afford’ basis by borrowing in kind from the system of progressive taxing may improve the overall willingness of advocates to take up pro bono cases.

Conclusion

The liability of a small fry cannot be likened to that of the Kraken. Through a progressive system of mandating pro bono work, young lawyers are not held to the same standards as their accomplished counterparts. A system by which lawyers appear in a number of pro bono cases proportional to their income ensures that the already dire situation of young legal professionals is not exacerbated.

While there is merit in the proposal for a pro bono mandate, its implementation would have to be reworked to ensure the equitable treatment of young lawyers. Keeping in mind the ultimate goal of ensuring access to justice, adopting a progressive system on an ‘ability to afford’ basis could help attract experienced lawyers.

**Archit K. P. is a student at the National University of Advanced Legal Studies, Kochi

Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.