2nd NATIONAL LEVEL ESSAY WRITING

COMPETITION

BY

PRO BONO CLUB

TAMIL NADU NATIONAL LAW UNIVERSITY

AUTHOR NAME – VARISH KANSAL

AFFILIATION – ALC/BALLB/24/280

MOBILE NUMBER – 6284589529

EMAIL ID – [email protected]

NAME OF COLLEGE – ASIAN LAW COLLEGE, GREATER NOIDA

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DOES MANDATING PRO BONO ADVOCACY IMPROVES ACCESS TO JUSTICE
OR JUST BURDEN YOUNG LAWYERS?

One such basic human right in common law is 'Access to Justice 1' but now it has found a
place as a constitutional right in the Indian Constitution, under Article 14 2. The article says
that "The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India.” Article 14 eliminates all forms of caste, race, religion,
place of birth, or sex discrimination, thus protecting the rights of people staying in India. It is
a milestone affirming citizens have adequate means of access to legal organs where they can
seek redress. Article 32 of Indian Constitution also imposes the right of a citizen to seek
jurisdiction of the Supreme Court in vindication of the infringed fundamental rights. It allows
the court to grant appropriate directions, orders, or writs to redress the infringed rights.
Likewise, Article 226 builds a channel of redress and persons who feel that his right is
deprived can approach directly the High Court of the concerned state. But just recognizing
the right of access to justice as a constitutional right is not enough. Because even after 77
years of independence, a good proportion of poor people who cannot afford litigation fees
feel deprived of this right. The country is growing fast and yet houses large percentages of
the population who are still living below the poverty line, finding it difficult even to fulfil
their very basic needs. For these people, high fees of litigations is out of reach, therefore,
rendering the right to have access to justice has become just a paper promise in the
constitution. This right means the right to access courts since one need to visit the court to
seek justice. However access to courts is not all. One needs to represent their case effectively
to ensure favourable verdicts. Richer men, therefore hire experienced law practitioners to
attend to them while the poor will have nothing to do but leave their rights undone because
they do not have enough money. Such inequality creates perceptions that legal institutions are
just made for betterment of rich people, rather than rights for everybody. The rich enjoy such
imbalances because they know the poor can't afford having legal representatives. This
imbalance was addressed through Article 39(A) in 1976 by the 42nd Amendment of the
Constitution, which also recognized the right to legal aid to ensure justice on equal
opportunities. No citizen shall be deprived of equal opportunities to secure justice on account
of economic or other disabilities. In order to realize this directive principle (article 39A),
1
R v. Lord Chancellor, ex pate Witham, 1998 (2) WLR 849; R V. Lord Chancellor Ex P Lightfoot, 2000 (2)
WLR 318;
2
A.K. Kraipak vs. Union of India, 1969 AIR 1970 Supreme Court 150

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parliament passed the Legal Services Authorities Act on 11 October 1987. The act institute/
established the National Legal Service Authority (NALSA) and State Legal Service
Authorities (SLSAs) to manage the legal aid services nation-wide. Further, section 3A of
Legal Services Authorities Act, 1987 establishes the Supreme Court Legal Services
Committee to ensure pro bono free legal services for people approaching the Apex Court. To
ensure the aim of providing the free legal aid, the SCLSC maintains a panel of advocates who
voluntarily file and argue cases on the behalf of disadvantaged person. The panel comprises
of senior advocates, Advocates on record, and Non Advocates on record. In the case of
Hussainara Khatoon vs. Home Secretary, State of Bihar (1979), the Supreme Court held that
the right to a speedy and fast trial is a fundamental right which guaranteed under Article 21 of
the Indian Constitution. Furthermore, according to Article 22(1) of the Constitution, the
accused in a case has the right to be represented by any legal practitioner of his choice. Under
this provision, every person is entitled to be represented in court by a legal practitioner and
should seek a favourable judgment from the court to get justice. The Supreme Court, in the
case of State of Maharashtra vs. Manubhai Pragaji Vashi and Ors. (1995) held that failing to
give free legal help to an accused at the cost of the state unless the accused himself/herself
refuses for the same, would menace the whole trial. Further, Justice Krishna Iyer stated in the
case of M.H. Hoskot vs. State of Maharashtra (1978) that providing free legal assistance is
the state’s responsibility and not the government’s charity. Their concentration is free
competent service to the weaker sections, so that poor and rich alike get justice without
bothering for any economic disparities to befall. These programs have increased the number
of cases for poor, litigants to appear, which is a step closer to justice for all. There are still,
however, areas that need improvement. The state often sends newly graduated advocates to
courts with little experience, which sometimes results in less effective case presentations in
front of seasoned, high-charging lawyers representing wealthy clients. Moreover, as much as
the government wants to hire more legal aid advocates, it can only do so with new lawyers,
and not all cases may be represented by advocates. Hence, although tremendous steps have
been taken, access to justice remains a challenge to this date, especially for the poor.
Continuous effort is much required so that legal aid really proves effective and that all
citizens, regardless of the economic status, can exercise their constitutional right to justice.
Many are still deprived of justice despite various successes in making access a reality. In
response, the Honourable Supreme Court has advised advocates to provide Pro Bono
Services-law services for the poor without being paid for their work. The term "Pro Bono"
originates from the Latin phrase "pro bono publico," meaning "for the public good."

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Today debate is going on in the society to mandate the pro bono services for every lawyer.
Proponents of mandatory pro bono services focuses on the difficulty many people have in
finding a way to pay for legal services they need. They believe it is a lawyer’s obligation to
perform pro bono services for people or groups with limited means derive not from altruism,
but from moral and ethical responses to demand for such services.
Mahatma Gandhi was also a strong advocate for pro bono services. We find the evidence of
the same from the incident Champaran Movement. In April 1917, during the Champaran
movement in Bihar, where Gandhi fought to protect the poor farmers suffering from the
oppressive Indigo plantation policies imposed by the British. When he addressed a group of
lawyers from Patna and found that they were charging very high fees, he reprimanded them,
demanding them to provide free legal services to the impoverished farmers. His insistence on
pro bono services shows his commitment to justice and equality, ensuring that even the poor
had the access to justice that is legal representation. The services of pro bono make sure that
proper experience-lined advocates can represent the less fortunate, and if every advocate
dedicates a small portion of his or her time to this service, there would be enough
practitioners to enable the poor to achieve justice. In fact, however, very few practitioners can
be found willing to represent the poor without any compensation. Thus, it seems that the only
possible and effective solution is to mandate pro bono services. The mandate as a solution is
complex and is contentious; there are pros and cons on both sides of the debate. The case in
favour for requiring pro bono services from young lawyers includes the fact that such work
helps lawyers develop important skills-like interviewing, research, and drafting. It provides
young and aspiring advocates with a platform from which they can gain actual exposure to
clients, interface with the judiciary, and handle real cases. Goodwill gained through pro bono
work enhances an advocate's reputation, promising a bright career both for the advocate as
well as their firm. The Supreme Court of India in judgment of Indira Jaising vs. Supreme
Court of India made pro bono work a qualifying parameter for the designation of Senior
Advocate. The judgment modified the guidelines for the designation of Senior Advocates,
which were originally laid down in 2017. Pro bono services have become one of the
qualifying parameter for the designation of senior advocate. Pro bono services provide
goodwill and experience to the lawyers which promise the better career to them. Besides, pro
bono service brings deep personal satisfaction to the ones donating time and professional
skills. Pro bono service available to an individual who cannot pay legal matters is almost a
tremendous source of purpose and fulfilment.

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However, imposing pro bono services as mandatory service may be too heavy to burden on
young lawyers who is already burdened with various pressures brought about by study loans,
family expectations, firm demands, economic struggles, and heavy workloads. Mandating
them to do pro bono work may then put a great stress on them that could badly impact their
well-being. Advocates may also have conflicts of interest because they tend to favour the fee-
paying clients who are not pro bono clients and over the other pro bono clients who seek free
services. Young lawyers for small and medium-sized firms tend to avoid doing cases with pro
bono services as a way of avoiding other activities that directly benefit the firm. Other
challenges that new lawyers are facing is in terms of time management for pro bono cases, as
it is difficult to them to handle with their other responsibilities. This would, therefore, make
pro bono services indispensable for equity but burdensome on young advocates if mandated
to do so. One major concern is rising in the society where young lawyers are paid with
minimal wages despite of doing significant work. Further, mandating pro bono services will
burden the young lawyers, who are already struggling with low income and heavy workload.
This will burden them and will have a great impact on his career. We all agree that pro bono
services are like noble and wholesome duty to be performed but not at the expense of young
lawyer well-being. Perhaps a more feasible option would be through some incentives rather
than mandates to create a balance. Pro bono services should be voluntarily performed and not
imposed.

Proponents of voluntary pro bono service believe that lawyers can be trusted to perform
voluntary service and that such efforts are demeaned by a mandatory rule. It does not make
sense to try to impose upon lawyers a mandatory pro bono service rule. Such a proposal
would be unlikely to produce more and better services for those clients with limited means.
Pro bono clients should have lawyers who believe in their case, who are willing to seek out
the training and support they need to succeed, and who will encourage, not discourage, their
clients to keep fighting for their rights. There is a fear that mandatory pro bono service will
result in a ‘watered down’ definition of pro bono to include community volunteer work,
service on the boards of non-profit associations and other similar volunteer services to satisfy
the rule.

A same debate is currently ragging among the members of the American Bar Association
(AMA) in response to recent a proposal by the ABA’s Ethics 2000 Commission to amend
r6.1 of the Model Rules of Professional Conduct to make a lawyer’s pro bono obligation

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mandatory. The commission is proposing to amend r6.1 by deleting the word should from the
sentence “A lawyer should aspire to render at least 50 hours of pro bono publico legal
services per year” And replacing it with the words “shall/should”, thereby giving states the
option of selecting mandatory or voluntary pro bono service in the adoption of the rule.
The standing committee of Pro Bono and Public Service (the pro bono committee) and the
Standing Committee on the Legal Aid and Indigent Defendants (SCLAID) strongly oppose
any changes to r6.1. In opposing the amendment of r6.1, the Pro Bono Committee and
SCLAID have taken a similar position to that taken by the Law Institute Council in
December, 1998 when contributing the issue of pro bono contribution of its members. That
is, in 1999, the Law Institute Council agreed to urge its members to dedicate at least one hour
per week to pro bono work. In considering this matter, the Council noted that its members
voluntarily accepted their responsibility to provide access to justice for the disadvantaged and
to compel them to do so would be inappropriate. The American Bar Association also came to
conclusion that the pro bono services should be provided and performed voluntarily rather
than imposing it and burdening the young lawyers. The Voluntas Pro Bono Secretariat will
continue to monitor the debate, given the recent announcement by the Victorian government
that one of the factors it will consider when selecting a firm to do its work will be the firm’s
pro bono work practises.
In conclusion, across all fields including the legal sector, the pro bono services should be
voluntarily provided rather than mandating or imposing these services. For the welfare of
deprived or marginalised group of people, pro bono services should be voluntarily provided
and they should not be binding and imposed on them. Imposing these services can create an
additional burden for the providers without necessarily benefits. True to its essence, pro bono
work should be carried out with genuine willingness, free from greed or obligations.
The true spirit of pro bono lies in the satisfaction and joy derived from the smile and thank of
those less fortunate. Mandating pro bono services will destroy its meaning. It’s about finding
fulfilment in free services and inspiring others to follow the same. Again, pro bono is shining
way to provide justice to the economically weaker section by providing free legal aid from
the trained and experienced advocates. However, it cannot be imposed nor can be compelled.
The foundation of pro bono work would be genuine desire with full –hearted actions for the
welfare and betterment of deprived people. Finally, it should bring true enjoyment and
fulfilment in itself in bringing positive change. Mandating pro bono advocacy might help
some people to access justice, but forcing everyone to participate and provide free
professional services could lead to resentment and burnout among the young lawyers.

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When they are not genuinely interested, it often translates to less effective representation,
which will at last result in benefit to no one. However, when people really want to help, it
make excellent pro bono work that brings the impactful and fulfilling reward to the lawyers
as well as to those whom they help rather than mandating it.
At last I would conclude that, pro bono services should not be mandated but should be
performed voluntarily to keep the spirit awaken and beneficial for both the provider and
gainer.

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