Issue I

WHETHER THE FEES OF THE LAWYER MUST BE REGULATED?

Legal fees depend on several factors, including the amount of time spent on your problem;
the lawyer's ability, experience, and reputation; the novelty and difficulty of the case; the
results obtained; and costs involved. There will be other factors such as the lawyer's overhead
expenses (rent, utilities, office equipment, computers, etc.) that may effect the fee charged.
Therefore, regulating lawyer’s fee is (i) violation of right to fundamental right to freedom of
profession guaranteed under Article 19(1)(g) which extends to practicing any profession, or
to carry on any occupation, trade or business.(ii) violation of right to livelihood.

(1) It violates the fundamental right to freedom of profession

guaranteed under Article 19(1)(g)

It is humbly contended before the court that A duty or a legal obligation is that which one
ought or ought not to do. “Duty” and “right” are co relative terms. When a right is invaded, a
duty is violated. State cannot fulfill one's right on the cost of another like it happened in the
present case by giving the person right to free legal aid state cannot deny lawyer's right to
freedom of practicing any profession. The advocates have a fundamental right to freedom of
profession as mandated by the Constitution. The guarantee under Article 19(1)(g) extends to
practicing any profession, or to carry on any occupation, trade or business. Any
encroachment on the freedom of the lawyer to enter into an agreement with his client in
regard to the payment of his professional fees would be inconsistent with the provisions of
the Constitution.1 It is also settled position of law that the citizens of the country cannot be
forced into any particular employment and every citizen of the country has full freedom of
entering into any profession and regulating the same.  It will be apt for me to quote some
instances from the American Jurisprudence which affirms this view that legal aid cases
should not be made compulsory for any class of advocates. The American Bar Association
proposed new Model Rules for Professional Conduct and inserted a “mandatory pro bono
service” provision. The same had to be scrapped down because of the heated opposition by
the legal profession. The Rules were then amended and the provision was thus made
voluntary urging the lawyers to on their own provide a minimum of 50 hours towards pro
bono litigation. Any attempt to compel personal conscience is seen as incompatible with, and

1
K.L. Gauba v. Unknown AIR 1954
thus destructive of the very essence of professionalism. Sec 19 of Legal Practitioner's Act,
1879, made adequate provisions for the amount payable by the client to his pleader. The
computation of pleader's fees under the provisions of this Act was made in terms of the value
of the subject-matter.It would thus be seen that law recognised the right of the lawyer to
charge as his professional fees an amount larger or smaller than the fees prescribed by the
statute. Attempts were made by Legislature from time to time to impose some limitations on
private agreements between lawyers and their clients and the policy- underlying these
limitations obviously was to protect the litigant from an unreasonable claim on the part of the
lawyer. These limitations were, however, removed and the provisions in respect of them were
repeal-ed by Act XXI of 1926. Mr. Gauba has relied very strongly on the provisions
of Section 3 of this Act. He contends that this section amounts to a Magna Carta of the
lawyers' rights in the matter of settling their fees with their clients. It removed the anomaly
which till then prohibited barristers from suing their clients for the recovery of their fees. It
removed any possible restraint on the ceiling of the fees and the requirements as to filing
these private agreements and as to getting them executed in a proper way were dispensed
with. Indira Jaisingh v. Supreme Court of India2, pro bono work has become one of the
qualifying parameters for designation as Senior Advocate. Instead of providing a mandatory
pro bono services framework which tends to have its pitfalls, there is an emergent need to
further incentivise pro bono legal services. Senior advocate and former Supreme Court Bar
Association president, Dhushyant Dave says, “The suggestion by the court is completely
unconstitutional and illegal, We are not a communist nation, where everything can be
regulated. Lawyers have a fundamental right to practice. It’s not a right order.”Senior
Advocate, Supreme Court C. Aryama Sundaram, believes the move to cap fees isn’t practical
as a lawyer as a professional can value his own services. He feels, instead, that the BAR
Council should step in and ensure that lawyers devote a percentage of their time doing pro
bono work.Member of Parliament, K.T.S Tulsi doesn’t agree with the Supreme Courts order
either, because, he says, that the independence of the BAR is as important as the
independence of the judiciary and for the it should be independent of the government  or
judges and be able to regulate its own conduct free of infringement. The Supreme Court
already has within its power the ability to fix the cost for legal intervention. According to the
law, no more than three adjournments are permitted, a law that is violated every day in all our
courts. If the top court ensured that this rule was followed, the total cost of legal intervention
would reduce drastically, says Gandhi.   
2
AIR 2017
 (ii) it violates right to livelihood

Maneka Gandhi case3, where the Supreme Court ruled that the right to livelihood would not
fall within the expression “life” in Article 21. The court said curtly: “The right to livelihood
would be included in the freedoms enumerated in Art.19, or even in Art.16, in a limited
sense. But the language of Art.21 cannot be pressed into aid of the argument that the word
‘life’ in Art. 21 includes ‘livelihood’ also.”In Board of Trustees of the Port of Bombay v.
Dilipkumar Raghavendranath Nandkarni4, came to hold that “the right to life” guaranteed by
Article 21 includes “the right to livelihood”. The Supreme Court in Olga Tellis v. Bombay
Municipal Corporation5, popularly known as the “Pavement Dwellers Case” a five-judge
bench of the Court now implied that ‘right to livelihood’ is borne out of the ‘right to life’, as
no person can live without the means of living, that is, the means of Livelihood. That the
court, in this case, observed that:“The sweep of the right to life conferred by Art.21 is wide
and far-reaching. It does not mean, merely that life cannot be extinguished or taken away as,
for example, by the imposition and execution of death sentence, except according to
procedure established by law. That is but one aspect if the right to life. An equally important
facet of the right to life is the right to livelihood because no person can live without the
means of livelihood.”If the right to livelihood is not treated as a part and parcel of the
constitutional right to life, the easiest way of depriving a person of his right to life would be
to deprive him of his means of livelihood to the point of abrogation. Deprive a person from
his right to livelihood and you shall have deprived him of his life6”

WHETHER COURT HAS POWER TO LAY DOWN ANY GUIDE LINES IN THIS
REGARD?

The court does not have power to lay down any guidelines in this regard because we follow
the doctrine of separation of power that means, there are three pillars of government
legislative, executive and judiciary. All the three pillars have their specified roles. The work
of the legislative is to make law, executive will implement the law and judiciary has to
interpret the law. According to the doctrine of separation of power , each pillar of
government has separate power and no one can interfere in each other’s work. But since, we
do not follow the separation of power in strict sense but still as independence of judiciary is

3
1978 AIR 597, 1978 SCR (2) 621
4
AIR 1983 SC 109: (1983) 1 SCC 124
5
AIR 1986 SC 180
6
http://rshrc.nic.in/07%20Human%20Right%20Article-21.pdf
important likewise the independence of litigation is important. Even if the parliament is not in
the session then also this power should be given to Confederation of bar to regulate it not the
supreme court.

Therefore the counsel will like to contend that lawyer’s fee should not be restricted as it
violates the fundamental right of freedom of practice and profession and it also leads to
infringement of the right to livelihood of the lawyer’s. It is also contended that supreme
court of Mayeechin donot have power to lay down guidelines in this regard.