In India, the Advocate fee for Advocates practicing in High Courts and Subordinate Courts is payable as per Rules framed by concern High Courts. In the Context of Madhya Pradesh, we must refer the Madhya Pradesh Civil Court Rules, 1961 herein after called “The M.P. Rules”. These Rules are framed under Section 23 of the Madhya Pradesh Civil Court Act, 1958. As per Section 23 of the aforementioned Act, the High Court of Madhya Pradesh is delegated the powers to make Rules. Obviously, the High Court is the Rule Making Authority. In exercise of these powers, the High Court of M.P. had framed the MP Rules. Under Rule 523 in Chapter 24 of Part 6 of these Rules the table of the Advocate Fees has been prescribed. According to these Rules, in the minimum advocate fee is fixed INR 20 and maximum advocate fee is fixed INR 5000.
In 1961 when these Rules were framed, the value of Indian rupee was so high that in 1961, some of class III and class IV employees were getting salary of Rs. 20. The salary of Government Servants was so enhanced in every five years as per the recommendations of pay commissions. But advocate fee remains unchanged since 1961. It is pertinent to mention that in the exercise of the powers conferred by clause (v) of the Explanation to Section 48 of the Income Tax Act, 1961, the Central Government has issued Notification on the Cost Inflation. According to this Notification, by considering basic year of 1981-82 and determining Cost Inflation Rupees 100.00 in that year, the Cost Inflation Index in the year 2014-15 has been fixed Rupees 1024.00. This means that the rise in Cost Inflation Index is more than ten times.
Apart from these facts we must realise the ground realities that in ordinary course, no lawyer can work on the fee of rupees 20 only. It could be analysed from media reports published from time to time. On the other side, the Civil Courts follow the Rules for allowing the Costs of litigation. The Costs of litigation include Advocate Fees. This means the successful litigants cannot claim the real costs of litigations because there are lot of variations in the Advocate fee payable as per Statute and fee payable practically. This is a big threat to the Social Justice System.
Although, it is admitted that there is no comparison of Advocates and workmen employed in different fields. But it is beneficial to refer the Minimum Wages Act, 1948 which provides the wages security and time bound enhancement with Cost of Living Allowance for the employees working in scheduled employments. At present, the Advocate fee is much less then minimum wages fixed by State Government.
It is pertinent to note that the Law Commission of India has submitted its 240th Report in May 2012 which addressed the issue of “COSTS IN CIVIL LITIGATIONS”. This report says that the Costs of the Civil Suits include the Advocate fees. The Law Commission in the Para 3.14 of the report opined that it is equally urgent to revise the Advocate Fee provided in the Schedule to the Rules, as most of the said fees are outdated and have no correlation with the prevailing rate of fee.
Para 3.17 of the report, is mentioned below:
3.17 While stressing the need to provide for awarding realistic advocate’s fee by amending the relevant Rules periodically, a serious fall-out of not levying actual, realistic cost has been expressed in the following terms:
“A litigant, who starts the litigation, after some time, being unable to bear the delay and mounting costs, gives up and surrenders to the other side or agrees to settlement which is something akin to creditor who is not able to recover the debt, writing off the debt. This happens when the costs keep mounting and he realizes that even if he succeeds he will not get the actual costs. If this happens frequently, the citizens will lose confidence in the civil justice system.”
In this regard, we should also refer the Judgement of the Supreme Court passed in the case of Rameshwari Devi versus Nirmala Devi, (2011) 8 SCC 249 in which it was observed that Costs should be realistic keeping in view ever increasing litigation expenses. In the light of aforementioned Judgement the Advocate Fee structure must be fixed in the realistic pattern.
The Law Commission of India in its report referred so many Rules effective in the States and in Para 6.5 says that the Andhra Pradesh Advocate Fee Rules, 2010 are quite realistic and reasonable. In the light of aforementioned factual and legal position the Advocate Fee structure prescribed in Madhya Pradesh Civil Court Rules, 1961 must be revised.