The Indian Legal Profession

Volume 4 • Issue 2 • January/February 2018
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The Future of the Indian Legal Profession

The Honorable Judge Dhananjaya Y. Chandrachud, Supreme Court of India

Adapted from Judge Chandrachud’s keynote address at the Harvard Law School Center on the Legal Profession’s Delhi book launch of The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (Cambridge University Press, 2017) held on December 11, 2017. Transcript edited for style and length.

Let me begin by telling you that one of the most significant impacts of the last 20 years or so has been on 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 high-paying 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 schools, and how much students are willing to pay for legal education.

I must tell you a story about Delhi University, when I was a law student. A very enterprising friend asked me, “What are you going to do after you graduate 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.” 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 your income as a lawyer.”

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.

But that was 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. Law was, thus, not always a viable 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 have really produced is something in the reverse. The 1990s were also a milestone in the Indian economy, and the landscape of a liberalized 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 more lucrative and alluring 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. The most influential law firms that offer high-paying jobs at the entry level 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 1982, we had to pay a princely sum of Rs200 in fees 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 employment 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 corporatization 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 recognized by the Bar Council of India. The corporate legal sector is known to recruit only from the top-most law schools, which are 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 schools. This elitism and the discriminatory practice itself must be 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 in salaries on the basis of your grades in law school. If you were in the top 10 ranks of your batch, your salary is roughly Rs100,000 more per month. While this may be some way to reward academic excellence, it is time we moved away from recognizing merit only through grades and university rankings given that the Indian legal education system is far from perfect.

An overwhelming majority of the top students in India’s best legal institutions now work in the corporate sector.

The fact that 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 rankings. This approach of viewing legal education as only a means to an end and not an end in itself is problematic and is leading to our young lawyers missing out on the true value of education in their lives.

Let me now say a little bit about public law. In a developing country like India, the constitution employs the legal system to facilitate the eradication of discrimination, inequalities of status, and inequalities 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 corporatization 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 an 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 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.

In the 63-year-old history of the Supreme Court, out of 204 judges, only five have been women—a poor 2.5 percent.

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 in the course of this new research, 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 prerequisite for success. They believe that law firms provide a far more professional meritocratic environment. In litigation today, to seek access to a good chamber is unheard of for a person who is not connected in the law. There’s no guarantee of income. These are some of the hard realities which young lawyers face. 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 old boys’ 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 during 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 or judges in our country—simply because it is not possible for them to continue on the meager salaries when they have spent significant sums for their education and have families to support. So instead of potential social activist lawyers or human rights lawyers, we are increasingly—as a consequence of economic necessity—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 far fewer women in positions of power, just as there are far fewer women in general who 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—a poor 2.5 percent.

We must still question the extent to which the corporate legal sector has been able to challenge entrenched power structures and hierarchies.

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. Women represent 50 percent in Finland, 30 percent in the United States, and generally between 10 percent and 20 percent in Asian countries. The percentage of women in the Indian legal profession has remained at 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 on 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 the extent to which the corporate legal sector has 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 address the lack of the pro bono culture in India’s law firms. Indian law firms lack an institutionalized pro bono culture, unlike western law firms, which has also been reaffirmed through the findings of this latest empirical research. 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 participating 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—the mindset of “pass the buck to someone else.”

There is something in the practice of law in the courts which sharpens your skills, whether you’re a politician or you’re in the corporate legal sector.

The corporate legal sector must realize that national networks of legal service providers, including NGOs, are unable to meet the needs of India’s disadvantaged population today and most organizations 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 characterized 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 realize 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 in India. As Justice Ruth Bader Ginsburg of the U.S. Supreme Court remarked, “A lawyer will gain a large satisfaction when he or she is not simply a fee-charging artisan, but a contributor to the public good.” And there is something which contributing to pro bono provides for lawyers in the corporate legal sector. There is something in the practice of law in the courts which sharpens your skills, whether you’re a politician or 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.

I want to make two last points before I conclude. The second-to-last point is on technology and law. Speaking about a web-based platform brings me to the remarkable and perhaps even 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 and 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, organizational 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, health care, education, transportation, and more.

As markets open to the world, specialization is necessary for firms to gain an advantage over their competitors.

Despite such giant leaps in various sectors of our economy, the legal profession has generally been slow to adapt to technological changes. Disruption-averse, our law firms and corporate legal sector continue to be driven by inefficient practices and dependency on manual systems—a far cry from the increasing automation and innovation in our world. However, this practice will inevitably change in the future.

Moreover, 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, specialization 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. On the other hand, they improve quality due to specialization and focused training.

Law firms in India need to be more sensitive to their employees’ concerns about unsatisfactory work cultures and a complete lack of work-life balance.

Lastly, there is an important issue that is neglected and rarely discussed in the legal profession: mental health for young 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 United States and Australia, which conclude that lawyers suffer from significantly lower levels of psychological and psychosomatic health and 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. There are no empirical studies on the Indian legal profession in this area due to the general stigma 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, such as the Gujarat National Law University or the National Academy of Legal Studies and Research in Hyderabad, and their students to recognize 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 the 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 from the boss at 3 o’clock in the morning. Law firms in India 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 destigmatization of mental health issues among members of the legal profession.

Like almost everything in India, there is this great divide, and nowhere is this great divide reflected more clearly than in the divide between those who work in corporate law firms and those who service the needs of the average Indian citizen.

Let me conclude then by saying that this new research is of immense interest to academics, lawyers, policy makers—anyone interested in or affected by the critical role that the rapidly globalizing 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 research provides some important insights at a time when crucial decisions are being made regarding the future of the legal services sector, particularly regarding further liberalization of the legal services market to allow the entry of foreign law firms into India.

Yet, it must be 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 more clearly than in 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. I’ll close with a hope and a suggestion: that, just as this wonderful research has been done as part of the corporatization 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.

 


The Honorable Judge Dhananjaya Y. Chandrachud is a sitting judge of the Supreme Court of India.

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The Indian Legal Profession Volume 4 • Issue 2 • January/February 2018

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