Need To Draw Young Lawyers To Litigation, Says Justice Chandrachud
Liberalisation in the early 1990s led to a demand for lawyers in a new regulatory environment, spawning a corporate legal sector. Over the last two decades, the number of students pursuing jobs at high-paying law firms has grown.
That’s come at the expense of public law, Justice DY Chandrachud of the Supreme Court said at the New Delhi book launch of the The Indian Legal Profession in the Age of Globalization, by the Harvard Law School Centre on the Legal Profession. There’s a need address the factors that impede young lawyers from joining litigation, he said.
Justice Chandrachud pointed out how law firms don’t look beyond the top 10 colleges, depriving meritorious students of opportunities and corporate legal structure of the talented legal minds. And the representation of women in 'position of power' in the corporate legal sector as managing or equity partners remains low.
BloombergQuint reproduces Justice Chandrachud’s full speech…
It has been 35 years since I entered the portals of Harvard Law School. And 31 years since I left. But there has been a sea change in the relationship between Harvard and India. Thirty-five years ago, when I was a struggling law student, it was typical to have questions like, India where? How do you speak English? Do you still have cows on the road? Incidentally, you still have them, as I learnt in Allahabad where I spent three years. So much for globalisation!
What was even more disconcerting was that there was a pecking order in the job market. I landed a job with Sullivan & Cromwell by sheer fluke. But there was a pecking order. The pecking was: if you belong to the European Union, then if you belong to Korea, Japan or China, you stood a chance to get a job. India? NO! But, this book (The Indian Legal Profession in the Age of Globalization) really tells us that India is a choice. It's a country of first choice for a book like this. And no wonder, therefore, that this reflects a tremendous change in the position of India in relation to the premier universities in the world. At the outset, I must congratulate all those who have been associated with this impressive collection of essays and all those contributors to the book.
There have been a few empirical studies in India on the legal profession. This book is significant because it provides the first comprehensive analysis of the impact of globalisation on the legal profession. It has relied on original empirical data collected over a period of six years. Its significance lies in exploring in great depth the emergence of the new corporate legal structure and sector in India, its impact on other parts of the Indian legal profession, including legal education, the development of pro-bono and corporate social responsibility, the regulation of legal services, and gender, communal and professional hierarchies within the legal profession.
The year 1991 was a watershed because since then we have generated a demand for lawyers who can navigate through the new legal and regulatory environment in India. While the development of this new legal sector, the corporate legal sector, has been influenced by the Anglo-American model to a large extent.
The Indian corporate legal sector is not a product of simply an adoption of western practices. But, is a hybridised corporate legal eco-system.
Most of India's influential law firms have developed their own identity, characterised by some values that are deeply connected to India's history and culture. For example, family and communal ties are very important to some of the most influential of India's law firms.
Let me begin by telling you that the most significant impact of the last 20 years or so has been on the legal education in India due to the increasing number of law graduates, particularly from the elite law schools, who chose to work in law firms.
The prospect of hyping corporate jobs at the end of the law course has changed who applies to law schools, the choice of law schools, the educational experience at law school and also how much students are willing to pay for legal education.
I must tell you a story from the Delhi University, where I was a law student. A very enterprising friend asked me, 'What are you going to do after you pass out from law school?' I said, 'I am going to be a lawyer. ‘He said, 'How are you going to earn your income? ‘I said, ‘From the practice of the law.' So, he had an important suggestion to make to me. He said, 'You belong to a legal family. Why don't you, through your contacts, get a gas agency or a petroleum outlet? I said, 'What does that have to do with all our learning as lawyers? He said, ‘That’s how you are going to make an income as a lawyer.' But that was so true of India in the 1980s.
Prior to the emergence of the corporate legal sector, jobs available to graduating lawyers like me were mostly assisting as junior advocates that paid little or nothing. But you got a great deal of inspiration from Mr. Fali Nariman, whom I had the great privilege to brief on a number of occasions. Law was, thus, not a reliable profession for students who did not have families that would support them for a long period of time. The late 1980s and 1990s saw the setting up of the National Law Schools with the objective of supplying well-trained lawyers to the bar and the bench so that access to justice is enlarged and the quality of the justice to the common man is improved and strengthened.
Yet, what we really have produced is something in the reverse. Because the 1990s were also a milestone in the Indian economy and the landscape of a liberalised Indian economy, created a demand for lawyers who could provide legal advice in a completely new terrain. This led to the growth of the corporate legal sector.
The high-pay packages that are offered at law firms, even at the entry-level, have now made law a whole more lucrative and alluring a profession leading to a dramatic increase in the number of students pursuing law as a career option.
The demand of corporate law firms for law graduates and the exceedingly high supply of law graduates has significantly altered the landscape of legal education. Since the most influential law firms offer high-paying jobs at the entry level and are known to recruit from only a handful of the top law schools. Students interested in securing these jobs scramble to gain admission into one of these select law schools in India. Prospective law students and lawyers are willing to pay much more and even take loans to attend law schools that offer highly remunerative jobs.
In 1980s, we had to pay a princely sum of Rs 200 as fee every quarter at Delhi University. The financial return from working in a law firm comes much sooner than it does in litigation making the investment in legal education a less risky investment for the young.
The quest for a high paying job at a law firm does not end with gaining admission into a law school.
Students interested in gaining a job in the corporate legal sector fashion their choice of courses, their extracurricular activities, as well as the internships they pursue, in a manner that would make them attractive candidates for recruitment—a corporatisation of education.
At this point, it is important to mention that these elite law schools in India, roughly a dozen in number, represent only a small fraction of the nearly 1,390 law colleges recognised by the bar council of India. Corporate legal sector is known to only recruit from the top most law schools, which is really a single digit number. Unfortunately, some of our law firms are also known to discriminate between graduates at the same position or level by offering lower salaries to graduates of what are considered to be tier-2 and tier-3 law colleges. Therefore, I go out of my way when I have an intern who applies to me from a law school which is not the tier-1 law school to ensure that these interns have an access to positions in the Supreme Court for interns.
This elitism and the discriminatory practice must be really condemned. Because it is antithetical to the principles of fairness and equality upon which the practice of law is founded.
Not only do these practices deprive meritorious students of opportunities but they also deprive the corporate legal structure of the talented legal minds that are found in the majority of Indian law schools and colleges.
A top Indian law firm discriminates on the basis of your grades in law school. If you were in the top-10 ranks of your batch, your salary is roughly Rs 1 lakh more per month. While this may be some way to reward academic excellence, it is time we moved away from recognising merit only through grades and university ranking given that the Indian legal education system is far from perfect.
The fact that now the legal education is now being viewed as a means to secure a job in a high-paying law firm is evident in the manner in which law schools are ranked. Recruitment by the corporate sector is the most important factor in determining law school ranking.
This approach of viewing legal education as only a means to an end and not an end in itself is really problematic and is leading to young lawyers missing out on the true value of education in their lives.
Let me now talk to you about a little bit of public law. In a developing country like India, the constitution enjoys a legal system to facilitate the eradication of discrimination, inequalities of status, and of opportunity and to ensure justice to all in social, economic and political spheres. However, an overwhelming majority of the top students in India's best legal institutions now work in the corporate sector. Members of the bar and bench frequently lament the corporatisation of legal education due to which the objectives with which national law schools were created are not being met.
Yet, there are positives. There is an increasing social and economic mobility and overcoming of some of the barriers that exist in litigation in India even today. But, there is a flip side to this trend. The impact on the growth of the bar and the bench and, therefore, on the quality of justice delivered has wavered.
Since the national law schools were set up in 1986, there has been just one National Law School graduate that has made it to the higher judiciary. A development that has taken place only this year when a 1996 alumnus of the National Law School in Bangalore, Mr Shekhar Saraf, was elevated as the judge of the Calcutta High Court. A few more are now in the pipeline. At the same time in 2014, 26 percent of the partnerships of the top six corporate law firms in India were occupied by the graduates of the same national law school. Therefore, this sense of disparity between the mainstream, the base of the pyramid, as I call it, and the tip of the pyramid, is for all of you to see.
Instead of lamenting the growth of this corporate legal structure and the potential loss of legal talent, on the litigation side of the profession, we must look at how we can address the factors that impede young lawyers from joining litigation.
Young lawyers, who were interviewed during the research that was carried out as a part of the book, have reported that at the outset of their careers, they had considered litigation but thought that the field would be too difficult to break into given the social position and connections that were perceived to be a pre-requisite for success in litigation. They believe that law firms provide a far more professional meritocratic environment.
In litigation even today, to seek access to a good chamber, is unheard of, for a person who is not connected in the law.
In litigation today, even now, there are law firms who would typically brief the young lawyers who were well connected. These are some of the hard realities which young lawyers face. There's no guarantee of income, in that sense litigation has not really changed in terms of its perception, say 20 or 30 years ago; litigation does continue today, even now as a sort of an old boy's club. Young juniors entering litigation today are paid little or nothing as compared to their corporate peers.
The unfortunate effect of this is that it makes litigation an exclusive domain, and the privilege of only a chosen few who have families with the means to support them with the difficult initial years.
What is most disheartening is that litigation as an option is closed to those who might have been truly passionate about it, and would have made great future counsel in our country, simply because it is not possible for them to continue on the meagre salaries when they have spent significant sums for their education and have families to support. So, what we really then have is instead of a potential social activist lawyer or a human rights lawyer, we are increasingly as a consequence of economic necessity we're converting them into, if I may call them, corporate geeks.
Let me now dwell very briefly on the role of women in India's law firms. The Indian legal profession has been predominantly male dominated.
A brief look at our statistics shows that there are much fewer women in positions of power, there are far fewer women in general that are practicing in the litigation sector. As of 2012, only five out of 294 lawyers who have been promoted to the position of senior advocate in the Supreme Court of India have been women, an abysmal 2 percent.
Similarly, in the 63-year-old history of the Supreme Court, out of 204 judges, only five have been women, at a poor 2.5 percent; since I'm not a member of that collegium, I can't affect that outcome.
Recent comparative research on the demographics of the international legal profession shows that Indian women have the lowest representation in the legal profession as compared to other countries, while women in most countries represent 50 percent in the case of Finland, 20 percent in the U.S. of the total lawyers; the representation in Asian countries is generally between 10-20 percent. While the percentage of women in the Indian legal profession has remained only 5 percent.
But there’s a silver lining; in stark contrast to this depressing picture, in litigation, the gender dynamics in elite corporate law firms seems to offer some hope.
Women in corporate law firms seem to be entering and succeeding at par with their male peers at all levels of advancement including partnerships. These seemingly gender-neutral trajectories in elite law firms are very encouraging, given the general inequalities of the workplace in India in particular. We must still question to what extent has the corporate legal sector been able to challenge entrenched power structures and hierarchies. How many women are truly in positions of power in the corporate legal sector as managing partners or as equity partners?
Let me briefly deal on the lack of the pro bono culture in India’s law firms. Indian law firms lack an institutionalised pro bono culture unlike western law firms, which have also been reaffirmed through the findings of this empirical study. It appears that litigation based pro bono work forms the smallest constituent of the overall pro bono work done by law firms. And corporate law firms have participated in only a handful of court cases on a pro bono basis. When asked about their preferred mode of performing pro bono work, it appears that almost all law firms chose providing their regular transactional services for not-for-profit or social entrepreneurial clients at free or reduced rates over participation in litigation matters involving those in need. Given the lack of pro bono culture in India, there is little empirical research at present to explain this choice.
One of the reasons which was given by the president of the society for Indian law firms is that the mandate to provide pro bono legal services is entrusted to the National Legal Services Authority of India.
That really begs the question, and is symptomatic of an Indian problem in governance – pass the buck to someone else.
The corporate legal sector must realise that national networks of legal service providers including NGOs, are unable to meet the needs of India’s disadvantaged population today and most organisations face significant resource constrains. The legal profession in that sense cannot live in ignorance of the reality of India – a burgeoning population and a society that is characterised by massive inequalities and injustice.
Development, in my mind, should not mask the reality and truth of India; and the truth of India is that you’re confronting discrimination, violence towards women, gender injustice – I see it every day of my life as a judge and realise how little we can do sometimes to reform the system. I personally believe that lawyers for whom the legal profession has been extraordinarily profitable have a special responsibility and commitment to address the problem of access to justice and to justice in India. As Justice Ginsberg of the U.S. Supreme Court remarked – a lawyer will gain a large satisfaction when he or she is not simply a free charging artisan, but a contributor to the public good. And there is something which contributing pro bono for lawyers in the corporate legal sector brings. There is something really in the practice of law in the courts which sharpens your skills, whether you’re a politician or whether you’re in the corporate legal sector. Zia Modi always mentions this to me that it was really the skills which you learn while brushing shoulders with opponents in a court trying to figure out the psychology of a judge that gives you that edge when you do transactional lawyering.
Last two points which I want to make before I conclude – the second last point is on technology and law. Speaking about a web-based platform brings me to the remarkable and even perhaps the unfathomable ways in which technology is going to influence the practice of law including in the corporate legal sector.
In the age that we have, which sees an expansion in the information technology landscape, the pervasive role of the internet technology cannot be ignored.
In such an information-centric world where cloud computing, information processing, machine learning, knowledge processing and speech synthesis are the mainstay, organisational boundaries are being realigned and are continuously shifting to new directions to meet these emerging realities.
Artificial intelligence systems find increasing relevance and usage in fields and industries including finance, healthcare, education, transportation and more. Despite such giant leaps in various sectors of our economy, the legal profession has generally been slow to adapt to technological changes. There is an increasing competition and focus on efficiency in the global markets which is bound to affect our corporate legal culture. As markets open to the world, specialisation is necessary for firms to gain an advantage over their competitors. On the one hand, these systems increase output by streamlining the information systems and reducing the duplication of work and on the other hand they improve quality due to specialisation and focused training.
Lastly, an important issue which the book has not dealt with and which I want to briefly deal with, which is, mental health for young lawyers. In the last segment of my speech, I want to discuss an issue that is neglected and rarely discussed in the legal profession. I am not going to talk about mental health for judges too much, but I’ll certainly talk about mental health for lawyers.
Lawyers’ jobs can often be very stressful, and thus lawyers are prone to addiction, and struggle with mental health issues like depression; both at a higher rate than the general population.
This is supported by findings of various research studies in the U.S. and Australia, which conclude that lawyers suffer from significantly lower levels of psychological and psychosomatic well-being than other professionals. Various law firms abroad have now started taking mental health issues very seriously. They are offering on-site psychologists and incorporating mental health support alongside other wellness initiatives.
The tragedy in India is that the supply always outstrips the demand (sic). There are no empirical studies in India regarding mental health of legal professionals due to the general stigma in Indian society regarding mental health issues. However, the steep increase in the number of suicides in India’s premier legal institutions is indicative of the systemic flaws in our system. Of late, efforts have been made by law colleges and their students such as the Gujarat National Law University or the National Academy of Legal Studies and Research in Hyderabad to recognise the need for addressing these concerns and provide avenues for students to reach out within the institution. In comparison to these recent initiatives by law schools, the legal profession, including corporate legal sector is doing woefully little.
It is almost presumed that if you’re a young lawyer in a corporate law firm, you should be answering the call for meeting the boss at 3 o’clock in the morning. Law firms in India definitely need to be more sensitive to their employees’ concerns about unsatisfactory work cultures and a complete lack of work-life balance.
Since many issues specific to the legal profession are responsible for the heightened level of stress that most of us have felt, general empathy and sensitivity to understand mental issues must be accompanied with a knowledge of the idiosyncrasies of our legal profession. As lawyers, we must collectively work to create a healthier work environment.
Change on an institutional level requires the creation of support structures. A massive change in our attitude and a de-stigmatisation of mental health issues among members of the legal profession. Let me conclude then, by saying that this book would be of immense interest to academics, lawyers, policy makers—in the critical role that are rapidly globalising legal profession is playing in the legal, political and economic development of important emerging economies like India, and how these countries are integrating into the institutions of global governance and the overall global market for legal services. The book provides some important insights at a time when crucial decisions are being made regarding the future of legal services sector particularly regarding further liberalisation of the legal services market to allow the entry of foreign law firms into India. Yet, it must be still remembered that the corporate legal structure still forms a minuscule fraction of the legal profession in India, in terms of the number of legal professionals.
Like almost everything in India, there is this great divide, and nowhere is this great divide reflected than the divide between those who work in corporate law firms and those who service the needs of the average Indian citizen.
While the size of this sector is going to increase in the coming years, traditional lawyers in the litigation sector will far outnumber corporate lawyers for years to come in the near future. And then, my last thought for the day, let me conclude with a hope and a suggestion, and the hope and the suggestion is that just as this wonderful research has been done as part of the corporatisation of the legal sector in India, another piece of extensive research be carried out on that part of the legal profession which forms the majority of the legal profession in India, which is untouched by economic development. I feel really honoured to be here and I would like to thank David (Wilkins; co-editor, The Indian Legal Profession in the Age of Globalization) for this great opportunity, thank you.
Watch the full speech here: