How much will this lawyer charge me?” This is the question that arises in the mind of every litigant, more than the questions about their original problem that took them to the lawyer. How many litigants got it answered before signing the ‘vakalathnama’? “None”, would be too hypothetical; a much more realistic answer is ‘to my knowledge, NONE’.
This article is an attempt to give you ‘some’ idea (I’m not a lawyer but I will try to get you as much information as possible) in this context. Act 25 of 1961 was introduced in the parliament to consolidate all the existing Acts related to judicial administration. This bill repealed Legal Practitioners Act, 1879, Bombay Pleaders Act 1920, the Indian Bar Council Act, 1926 and brought in The Advocates Act, 1961. For the purpose of the subject matter concerned, we will be interested in “Bar Council of India”, which, as per section 2(e) means, the Bar Council constituted under Section 4 for the territories to which this Act extends. The details of various bar councils are defined in the Act; precisely, there will be one Bar Council of India and under that there will be several State Bar Councils. Some of the States and union territories are clubbed together under one bar council. So if you interested in specifics, you may please check the Act itself.
As a litigant, it is nice to note that this is not just a council of members; as per section 42 of the Act, the disciplinary committee of the Bar Council shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908. All proceedings before a disciplinary committee of a Bar Council shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, 1860 (45 of 1860), and every such disciplinary committee shall be deemed to be a civil court for the purpose of sections 480, 482 and 485 of Code of Criminal Procedure, 1898 (5 of 1898).
Power to make rules– Sec.34 gives High Court the power to make rules; Sec 49 gives general power to Bar Council of India to make rules; Sec 49A gives Central government the power to make rules. We are interested in Sec 34(1A) – The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary’s advocate upon all proceedings in the High Court or in any Court subordinate thereto.
I’m quoting THE BAR COUNCIL OF KERALA, RULES 1979 here, for explanation; and only relevant points are mentioned here without going into the nitty-gritty. Readers from other parts of India may check out their own state’s rule.
RULES REGARDING FEES PAYABLE TO ADVOCATES
In exercise of the powers under Article 225 and 227 of the Constitution of India and of all other powers thereunto enabling and with the previous approval of the Governor of Kerala conveyed in G.O(MS) 60/69/Home, dated 7th February,
1969 the High Court of Kerala frames the following rules regarding the fees allowable to legal practitioners in the High court and in the Subordinate Courts, in super session of all the existing rules in the matter.
Please note that for the purposes of these rules the term ‘advocate’ includes a vakil or pleader authorized to practice before civil courts.
Scale of fees: – Section 6 says, in suits for money effect or other personal property or for land or other immovable property of any description, fees shall be payable on the following scale:-
(1) Small cause suits – at 7½% of the claim subject to a minimum of Rs.25
(2) Original suits-
(i) If the amount or value of the claim does not exceed Rs.5, 000/-
at *(12½%) subject to a minimum of Rs.50
(ii) If the amount or value exceeds Rs.5,000 but does not exceed
Rs.20,000 on Rs.5,000 as above and on the remainder at *(7 ½%).
(iii) If the amount or value exceeds Rs.20,000 but does not exceed
Rs.50,000 on Rs.20,000 as above and on the remainder at 3%
(iv) If the amount or value exceeds Rs.50,000 on Rs.50,000 as above and on the remainder at 1%
Provided that when a suit is compromised, settled or withdrawn, or is decided solely on the admission of the parties without any investigation or is decided exparte or dismissed for default before any evidence is recorded, the fee payable shall be one half of the scheduled rate or Rs.25 in the case of Small Cause Suits and *(Rs.100) in the case of Original Suits, whichever is higher.
Section 7 says,
in appeals for money, effects or other personal property, or for and or other immovable property, the fee payable shall be as calculated under Rules 6(2) subject to a minimum of Rs.50; but when such appeals are settled, withdrawn, compromised or dismissed for default, one half of the fee calculated as above, subject to a minimum of Rs.50 shall alone be payable.
All other sections talk about how much to pay at various stages, say, at the time of petition, declaration suits, inter-pleader suits, execution of decree so on and so forth which doesn’t carry a fees of over Rs.2000/- at any point. But, the last section (37) says as below…
37. Nothing in these rules shall be deemed to affect any agreement between an advocate and his client regarding fees.
Some people might go mad over this. There are already suggestions pending before the parliament asking to set a ceiling for the amount that can be charged by an advocate. I personally do not want any restrictions, per se, as long as the fees are decided by the market. What I mean is, allowing unions to decide the fees is not acceptable at all. Fees should be set by the MARKET – Demand and Supply.
I believe, as any other professionals, advocates should also have the liberty to set the fees for their labour. It is not fair to set a fixed salary for anyone who is not getting paid out of tax money. Can we fix the price of a driver, painter, doctor, engineer or software professional? Absolutely not! But, on the other hand there should definitely be some rules to let the litigants know upfront how costly the lawyer that s/he is going to hire. If there exists any such rule that I’m not aware of, please bring that up. Your comments and suggestions are most welcome. Let’s work together to get this done, for the benefit of present and future litigants.
