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On The Margins Of Law - Lawyers' Clerks

Shreeya Sud
26 July 2019 11:49 AM GMT
On The Margins Of Law - Lawyers Clerks
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Although the legal profession and court systems include a wide range of actors and stakeholders, socio-legal research has been focusing only on judges, lawyers and litigants. The background, training, attire and method of judges and lawyers have been well researched and documented. While lawyers and judges permanently occupy the front and center stage, a wide range of actors such as Lawyers' Clerks, Law Researchers, Interns, Court Attendants, Process Servers, Ushers and other court staff are located at the periphery of the legal profession or are entirely invisible. This series - 'On the Margins of the Law'- attempts to draw focus on the margins of the legal community. This article focuses on Advocates' Clerks /Lawyers' Clerks.

Within the Indian legal community, the lawyers' clerks (also referred to as munshis) work as paraprofessionals, record keepers, typists and runners for both domestic office errands and official work such as filing, mentioning, making certain applications, requesting for pass overs in Trial Courts and other clerical assistance. While there is no official training program to become a lawyers' clerk, the job demands some level of literacy and skill. According to the Supreme Court and High Courts, a lawyers' clerk must have completed his schooling till grade ten. Most of the lawyers' clerks interviewed for this article had finished their formal schooling, were enrolled in a distance learning graduate program or were BA (pass). Some clerks are pursuing their Bachelors in Law, which is facilitated by their regular engagement with lawyers' offices and courthouses. In several offices, Lawyers' Clerks, particularly those who are pursuing the LLB program, also assist with substantial drafting tasks which include drafting entire petitions and not just affidavits and specific applications.

The position of Lawyers' Clerks is unique - they contribute to the administration of justice, yet continue to occupy a marginal status. They are exploited, mistreated, socially excluded by lawyers and paid meager salaries. Generally, clerks receive salaries that range between five thousand and twenty-five thousand rupees per month. Many clerks are also expected to sweep, mop, wash dishes and clean the office - tasks that are not part of their job description. In courthouses, lawyers' clerks are seen carrying bagfuls of files or racing behind a lawyers who are hurrying to courtrooms. By virtue of their position in society and the legal community, clerks have barely any negotiating power and are often expected to do any task asked of them by their employers. There exists an unsaid expectation that a clerk will work as long as his employer-advocate desires, without complaining and in exchange for a less than adequate salary.

Drawing attention to the issue of meager salaries, Muhammad Imran Khan, a 23-year-old Lawyers' Clerk said, "The biggest problem is traveling, it's a big expense. I spend more than I get…. These days, the metro has also become very expensive, and the condition of buses is terrible…. Bus is affordable, but we cannot rely on buses when we are going to work in court. [Travelling by bus] becomes difficult if there is a traffic jam or there are other problems like delays." According to him, the issues related to transportation are not confined to expenses alone. Many clerks are not allowed to share transport with their employer even though they are traveling to the same place. Some lawyers who allow the clerks to travel with them, however, maintain a strict space by not allowing the clerks to sit next to them in the cars.

Muhammad Imran Khan also added that he had been mistreated by his previous employer. He said, "I didn't know a lot of the work at that time. The lawyer I was working with, asked me to get two sets of photocopies of the file. I got it done and he accidentally left the file in his chamber. He screamed at me inside the court in front of everyone without realizing it was his own fault. He was extremely rude to me in the office as well. If I ever asked for guidance on how to do something, he insulted me and shamed me for not knowing.… Actually, they are upper class and think of us as insects. They don't want us to progress." Muhammad Imran Khan has recently completed his BA program from the School of Open Learning (SOL) and is now working towards enrolling into an LLB Program.

Sonu Kumar Jain, a 22-year-old Lawyers' Clerk at a law firm in Delhi stated that he worked for 10 hours on an average workday. He said, "I get an allowance for food and transport when I work for more than 10 hours.… Timings can be an issue. I get home very late. I get very tired …. Leave doesn't get approved easily. Salary is also not great.… Clerks working with senior counsels get paid reasonably well. Some of them get a ten percent clerkage from each case. Only ten percent of the Senior Counsels part with the clerkage they collect from clients. Ninety percent of the Senior Counsels don't give it." Sonu Kumar Jain is in the final year of his B. Com. and aspires to be a lawyer.

The practice of giving Clerkage (Munshiana) to clerks has been a part of the Indian legal profession from its very inception. Clerkage refers to a small percentage of the fee charged by the advocate for each case. It is given to a clerk as a token of gratitude (Shukriana) for all his work, especially when cases have a favorable outcome. Today, while most Tier I firms charge a ten percent clerkage on each bill they raise, it rarely finds its way to clerks and is often used towards miscellaneous expenses.

When asked about the difficulties they face in doing their job, several clerks who were interviewed for this article remembered their initial days and described them as "difficult and overwhelming" and marked by "a lack of help or guidance." Clerks are often blamed for the increased workload of the Registry due to mistakes made during filing. Most clerks lack any sort of formal training in the profession and learn everything on the job. However, Courts and other institutions do not provide any assistance to clerks in terms of periodic training. Several clerks also underlined the need for training programs stating that they found it difficult to adjust to the procedure of e-filing. An interviewee said, "Not all clerks knew how to use computers or how to do e-filing. This made their job more difficult and inconvenient. Some training would have helped."

Often, clerks are easily mistrusted and suspected of misdemeanors. Clerks constantly negotiate between several spaces and communities as well as between legalities and illegalities in legal practice. Clerks have been used as pawns by lawyers to bypass the law. This has become a part of their 'training on the job'. Since most junior clerks learn from senior clerks already in the system, they are essentially trained to bypass the system and not to use it. This is also the result of lack of proper training coupled with the time-consuming and arduous procedures/processes of the various courts.

Many Clerks also stated that they have to stand in long lines for hours for the filing work. They complained of overcrowded counters with over 100 clerks and barely any fan functional in the room. Even though there are twenty-five working counters, clerks are often asked to make room for advocates who are seen rather infrequently. Advocates are prioritized; their work is considered urgent and greater regard is accorded to their time and effort. As a matter of practice, as has been exemplified above, it is easy to sideline clerks.

Recently, in Delhi High Court Bar Clerks' Association v. Union of India, the then Chief Justice Rajendra Menon and Justice Brijesh Sethi passed an order stating that lawyers' clerks are "a part and parcel of the system involved in the dispensation of justice to the litigants." The order also noted that the High Court "can visualize the difficulties being faced by the petitioner association with regard to the need for medical facility and canteen facility while discharging their duties from early morning till late night in the Court Campus." The Court, therefore, observed that "[…]at least the medical facilities available in the Dispensary at Delhi High Court and the canteen facility available to the employees of the Registry should be and need to be extended to the members of the petitioner association…".

However, the same has not been effectively implemented. Lokesh Kumar, Secretary - Delhi High Court Bar Clerks' Association stated, "The Staff Canteen that has been allotted to us is located on the first floor of the Administrative Block. We are not allowed to use it during lunch hours, which is between 1:00 to 2:30 pm. Our lunchtime is the same as the lunchtime for Advocates and other staff members. Cases are listed before and after lunch. We have other work to do. We are only free during lunchtime. If we get late, we will be fired. Many of us don't end up eating lunch.… Although the order has been passed to extend medical facilities to the Clerks, we have been denied services at the dispensary at the Delhi High Court. They keep saying that they have not received an order. However, the order has been passed. We have shown them the order. They told us that they wouldn't consider the order. They will only consider the official order of the Registrar General."

The social exclusion of lawyers' clerks from the canteen and other facilities within the court campus is not based on any written guidelines, rules or order issued by any competent authority and is entirely a matter of practice. Such exclusion begs the question of who began implementing these exclusionary practices and more importantly, why? It must also be noted that the extension of medical and canteen facilities to Lawyers' Clerks by way of this order is conditional, both theoretically and in practice. In its order, the High Court added that "for providing both these facilities certain basic formalities and guidelines are required to be laid down…. to maintain discipline and certain other issues related thereto". This statement is problematic, precisely because it is based on the implicit assumption that the class of individuals who are lawyers' clerks lack discipline and are uncivilized. Also, the Committee envisaged in the order must insist on the discipline of other members of the legal profession and court staff to ensure that clerks can avail these basic facilities without constantly being excluded.

The fact remains that while the clerks are an integral part of legal practice, there is no room for them in the court complex. On May 30, 2014, the Supreme Court Bar Association issued a notification stating:

"It is noticed with concern that clerks of Advocates, also occupy the aisles, leading to huge inconvenience to the lawyers. It was unanimously decided that any clerks of Advocate-on-Record, Senior Advocate, or Junior advocate, who want to enter the court room for helping/assisting their advocates must be coached by the lawyers not to occupy the aisles in the court room and move out after keeping the briefs/files/giving appearances."

Ironically, clerks assisting lawyers are also viewed as a huge inconvenience to them. It is also strange that though lawyers' clerks spend a lot of time in the courthouse complex, there is no space accorded to them. This problem is common to all courts, including the Supreme Court. This underlines how blind the justice system is to the needs of specific sections of society. Lokesh Kumar, Secretary, Delhi High Court Bar Clerks' Association said, "In the Petition (Delhi High Court Bar Clerks' Association v. Union of India) we filed, we asked for provision for a common room for clerks with books and newspapers akin to the Bar room for advocates. The room was provided to us in the first week of April. It's extremely small and is located outside the court campus. It is where the clients make their passes to go inside the courtroom. We had demanded chairs, a television, a computer, air conditioners, and a display board - all basic requirements. It is July now, and nothing has been provided to us. We have nothing in the room. We have nothing to sit on, no air conditioners or anything. They have only handed over the key to us. This is tokenism. They have only given us something so that they can say in court that we have given them a room.… We do not have any money to furnish the room and arrange for amenities ourselves because when any clerk dies, we give their family fifty-thousand rupees.… We began giving this amount in January 2018 when I became the Secretary of the Delhi High Court Bar Clerks' Association."

Other demands included in the Writ Petition (Delhi High Court Bar Clerks' Association v. Union of India) are creation of a welfare fund for clerks, provision of group insurance policy, provident fund, pension, provision for payment of consolidated sum on death and disability of any clerk, provision of medical and educational facility for clerks and their families, financial assistance to clerks in need and provision of periodical training programs for clerks.

The matter of Delhi High Court Bar Clerks' Association v. Union of India was listed at the High Court on July 25, 2019. No one appeared on behalf of the Union of India. Senior Counsel Arvind Nigam stressed on the fact that States such as Andhra Pradesh, Tamil Nadu, Kerala, Orissa, Himachal Pradesh have sanctioned welfare funds for registered lawyers' clerks. The matter has now been listed for November 18, 2019, and the Union of India has been directed to file its reply.

An interviewee jokingly added, "Once a lawyer told his clerk to work hard till late evening. The clerk responded by telling his boss that working hard till late hours only make the lawyer rich and rich, while his salary remains the same." "What will a clerk get, not even extra money", he remarked. With a focus on the needs and aspirations of judges, lawyers and litigants alone, clerks tend to be excluded from the law's as well as the people's perception of the law, the courtroom and the courthouse. Exclusion is not just social but is also felt spatially. The unwillingness to accommodate and cater to the needs of lawyers' clerks and other marginalized stakeholders and actors in the legal profession testify to the reluctance of the legal community to work towards equality. Many lawyers and other actors in the administration of justice are class conscious and tend to be oppressors or complacent in such oppression. Tacitly, such politics and policies of exclusion enable the maintenance and reproduction of hierarchies within the legal profession. How noble then, is the legal profession?

(Note: We at Live Law, extend our gratitude to all the interviewees for sharing their experiences and aspirations with us. All interviews have been translated to English from Hindi by the author)

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