Amicus Curious?

Broadly, there are three types of recognised legal education from BCI-endorsed universities.

• A composite, five-year double degree course comprising a bachelor’s degree (arts, science or commerce) as well as an LLB (Legum Baccalaureus in Latin).

• Passing a three-year LLB course following any other degree (minimum bachelor’s)

• Bar Council of India-accepted foreign degrees (list on BCI website).

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This one could be the shortest legal thriller ever, but with a Jeffrey Archer twist in the tale. In early February this year, a litigant was observing lawyer Ajit Kar with awe as the latter argued a brief in front of a magistrate in Delhi’s Dwarka court. It didn’t take him long to decide that, in Kar, he had found the advocate to replace the one representing his cousin. Bail had been granted to an accused in a criminal case, and they needed a lawyer who could get it cancelled. Right afterwards, he struck a deal with Kar. The alleged scene: a glib Kar said his speciality was criminal cases, and he would charge Rs 1 lakh as fees—the litigant paid up half of that as advance on the spot, the rest was to be furnished when the case was settled.

On February 4, when the litigant went to court for the hearing as scheduled, ‘lawyer’ Ajit Kar was standing ashen-faced amongst other lawyers and bar association members. The would-be prosecutor had himself turned into an accused. Kar’s cover had just been blown: he was a fake lawyer.

The police say Kar had had a good run for around seven years and had perhaps appeared in some 60 cases. He had first come to the court in 2010 for a case and realised to his dismay that legal fees were very high. Not much dope exists on the back-story, exc-ept that he had a dispute in his own family. Anyway, out of desperation, he argued his own case—and decided he had the knack for it. Realising one could make a good living from it, Kar would wear a black coat and approach litigants to entrust him with power of attorney and charged them as much fees as the others.

Other lawyers practising in Dwarka were in awe of Kar. “He could argue like a seasoned senior advocate and knew both the Indian Penal Code and the Criminal Procedure Code well,” says B.S. Jakhar, president, Dwarka Bar Association. “During elections, we would ask Kar for votes and junior lawyers used to touch his feet in reverence. Pair chhoote thhe.”

In some cases, Jakhar claims, Kar even filed a fake ‘vakalat-nama’—a kind of power of attorney through which the litigant empowers the advocate to represent him. The advocate has to file the vakalatnama in the court where he appears on behalf of his client. After that formality was taken care of, Jakhar says, there was really nothing to stand in Kar’s way: his knowledge of the law and arguing skills were mostly decent enough for him to pass off as a lawyer in front of a judge.

And yet, the self-taught always run the risk of not doing things in a schooled way—and can stand out. Another lawyer, who observed irregularities in Kar’s arguments, became curious and asked where his chambers were. Kar’s answers were evasive and, his suspicions piqued, the lawyer tipped off bar association members. They had just accosted Kar when the first litigant landed at court. The latter was persuaded to file a complaint and Kar was handed over to the cops. Booked for fraud, he is now in judicial custody. His courtroom skills should come in handy now, since the lawyers in Dwarka have decided not to represent him.

But Kar could almost count as an ama-teur compared to some other luminaries from his fraternity of fakes—and it’s a sizeable one, numerous enough to make up a whole bar association of “Munnabhai LLBs”, as Mannan Kumar Mishra, senior advocate and Bar Council of India chairman, calls them.

The Association of Fakes

Such an association could have a formally graded hierarchy too, for Munnabhai LLBs come in many shapes. Some have genuine law degrees, but earned those on the back of fake graduation degrees; some have earned their spurs at institutions that turn into deg-ree malls at exam time, a bazaar run on forged attendance and/or mass cheating; some got degrees from institutions that are themselves dubious; some have outright fake LLBs; some, like Kar, just wear the black coat and go to court.

Back in January, Mishra estimated 55-60 per cent of all enrolled lawyers—that’s over nine lakh of the country’s total 16.5 lakh enrolled lawyers—could have used fake degrees! There are many more, of course, who blissfully practise even without an enrolment—and the BCI has no estimate for the number of lawyers without degrees. Par for the course, you could say, in a country that has seen fakes posing as bureaucrats, cops, doctors, what have you.

Kar’s learned peers present fascinating stories. Take Mahendra Kawchale, in Pune. He had great rhetorical skills and seemed to know the law, except he would lean over to ask other lawyers how to file papers in court. A probe rev-ealed that he had started with smaller cons in Solapur and had duped people by promising them government jobs. After running up 21 cheating char-ges against him, he shifted to Pune and started a law practice, getting an enrol-ment number in due course, using a graduation degree from Kolhapur and a fake law degree from Lucknow.

Kawchale allegedly charged in lakhs, but became greedy and did not deposit court fees or fines that he collected from clients. By the time of his arrest in 2011, he had filed PILs in Bombay HC and argued several cases for clients—a relative touted for him—and even app-eared as defence in sensitive cases, inc-luding two rape and murder cases and some related to corruption. Reliable sources let on that Kawchale, now out, has got a proper law degree and is trying to re-enrol himself validly but the case against him remains pending.

A few months after Kawchale, Uddhav Kshetrapale was arrested in Pune for posing as a lawyer and charging up to Rs 1.5 lakh as fees for a case. He was arguing a matter before a magistrate before another lawyer pulled him up for not wearing a black coat.

There were three other arrests in Pune alone that same year. One of them was of Anil Kawle. Armed with only a high school qualification, Kawle began as a senior lawyer’s clerk and so knew every aspect of filing cases and court procedures. He picked up courtroom skills by observing the senior and studied the law on his own. By the time his run ended, Kawle had allegedly app-ea-red in over 400 cases in Pune’s Debt Rec-overy Tribunal in a 15-year ‘legal’ career. So refined and persuasive were his skills that at least three banks, including the State Bank of India’s local branch, had reportedly put him on their panels and briefed him regularly.

Kawle’s case is pending at a court in Pune. When contacted, he refused to comment citing the sub-judice nature of his case, except to allege that this report was probably motivated by his rivals since it was raking up an old case while there are 17 similar cases pending in Pune. He said he had served legal not-ices on media houses for defamation. Despite repeated attempts, Outlook could not get in touch with Kawchale or Kshetrapale for a response.

?Pseudospotting

The BCI is currently faced with the mammoth task of weeding out fake lawyers, a long overdue task that might ironically eliminate some genuine talent—for one common trait among the fakes is that they seem to have picked up enough skills to obtain favourable orders for their clients! As a first step, the BCI—the statutory body responsible (under the Advocates Act of 1961) for the formal enrolment of lawyers—intends to weed out those who ply their craft on the basis of a fake degree.

“Since 1961, there have been 16.5 lakh enrolments. The state bar councils do not verify the authenticity of the submitted documents. No state bar council has kept a simple tabulation, since 1961, on how many advocates have died, retired from practice, switched their profession or taken up employment in a corporate body. None of the state bar councils have verified how many lawyers there actually are. Despite several extensions since 2015, only about five lakh applications have come in from lawyers for verification,” says Mishra.

The BCI floated fresh rules in 2015 that now require a lawyer to apply for a fresh certificate of practice every five years. But these have not kicked in yet—after petitions and stay orders in seve-ral high courts, the Supreme Court took up the clutch of cases and directed high courts not to entertain any petitions in this regard. The apex court later direc-ted bar councils to complete the verification process and will hear the validity of the new rules separately. Those opp-osing the new Certificate of Practice Rules argue the BCI had added an extra layer of conditions on lawyers without sanction from the Advocates Act.

The BCI has decided to set 1975 as the cut-off year—enrolments after that year have to be verified along with original documents. There is also an exemption for court-designated ‘senior advocates’ who need only file a single-page affidavit in support of their enrolment. Some state bar councils Outlook contacted are mulling a process to verify deg-rees with universities at the time of enrolment.

The cost of verification is high. Universities have set charges between Rs 500 to Rs 2,500 per degree. With five lakh degrees, that’s at the least a whopping Rs 25-30 crore for the present five lakh applications. All the parties concerned wonder who would foot the bill and the BCI declared it doesn’t have the funds. On March 1, 2017, the apex court, when told about the cost involved, directed universities to verify law degrees without a fee. A bench of Justices Pinaki Ghose and Rohinton Nariman also gave them a deadline of four weeks.

Elections to the various bar councils are also central to this issue and have been pending for up to two years in some cases. There is a suspicion amongst many lawyers that these elections are ‘managed’ using the fraudulently enrolled advocates. The BCI has asked state bar councils to prepare voters list after verification certificates are received. The Supreme Court has been cautious—it has not yet allowed various state bar council elections, some pending for two years or more. A decision is likely to be pronounced soon.

“Right now, for instance, the Bar Cou-ncil of Delhi is managing with a bare committee of three persons—additio-nal solicitor general Maninder Singh, Harsh Sharma and myself,” says K.K. Manan, senior advocate and member of the capital’s bar council.

Most senior lawyers like Manan agree elections should wait till the verification drive is completed and a fresh electoral list of lawyers is drawn up. “Doing it in the present state of aff-a-irs will frustrate the whole process. Fraudulently enrolled lawyers could end up voting in people who perpetuate the fraud. We can’t put the entire legal profession at stake for a minority,” says Mishra.

But Joseph John, Kerala Bar Council chairman, warns the verification proc-ess will be too long-drawn-out thing for elections to wait. “It will take over 10 years to verify Class 10, Class 12, bachelors and law degrees. Elections can’t be held up for that long. In Kerala, some 22,000 advocates have voted and we have received almost the same number of verification forms. I don’t think there are many fake degree cases here. No bar council will be able to afford the cost of verifying the degrees,” says John.

The Pedigreed Ones

Despite John’s stance, Kerala recen-tly offered an example of distortions of another sort, specifically with Kerala Law Academy (KLA) principal Lakshmi Nair in the eye of a storm. The KLA was started half a century ago as the state’s first private law college and counts several legal luminaries among its alu-mni—including six high court judges, over a dozen judges of the subordinate and higher judiciary, film actors, MPs and MLAs, including at least 17 who have served as ministers in Kerala.

While Lakshmi Nair was pulled up for discrimination and maladministration, she was also charged with manipulating the attendance and marks of some students—allegations she denied in an interview to Outlook in February. In a preliminary probe, University of Kerala representatives found the attendance of at least four students were jacked up to meet the university’s minimum requirement of 75 per cent.

Many universities around the country have been under the scanner for manipulating attendance records ever since the fake degree racket was bus-ted. It’s believed that several colleges fabricate attendance records and allow candidates to merely appear for the final examinations. But none is as prominent as KLA. In a recent case, the BCI is probing the credentials of office-bearers of a lawyer’s body in a civil court in Patna—prima facie, enrol-ments seem suspicious.

The regular process to enrol as a lawyer requires original documents proving educational qualifications from Class 10 onwards, attendance certificates, the fees for enrolment and supporting affidavits from two enrolled advocates. And from 2010, enrolment also requires a bar examination, conducted by the BCI through the state bar councils. Finally, the enrolment is cleared by the state bar councils through a formal meeting. For all this grand routine, it’s striking how the legal profession’s yen for the “letter of the law” seems to go missing and lakhs slip past the temple gates.

Jitendra Singh Tomar allegedly outwitted none other than the Aam Admi Party with his fake degrees to become a law minister in the Delhi government. The case put a nationwide spotlight on fake degree rackets—more and more legislators from states and the Centre were pulled up for falsifying their educational documents. Tomar had allegedly used both a fake BSc degree from a college in UP and a fake law degree from a Bihar university. The Delhi Bar Council quietly got both his degrees checked while his electoral opponent, Nand Kis-hore Garg of the BJP, went to court on it. The degrees turned out to be fake.

At first, Tomar claimed a political plot to denigrate his reputation. Later, he supposedly confessed to the police that fake degree agents in Delhi and Mun-ger (Bihar) had helped him obtain the pie-ces of paper with which he travelled all the way to become a law minister! In Decem-ber 2016, the Tilka Manjhi Univ-ersity Syndicate in Bhagalpur reportedly reco-mmen-ded cancellation of Tomar’s law degree. They also called for action aga-inst 14 university employees. Delhi Pol-ice is yet to submit a charge sheet against Tomar though, despite two years having passed since the controversy began.

So even a political party and a government can be hoodwinked. But state bar councils come up short because, as Mishra points out, verification of documents almost never happened. Anyway, Tomar’s case put the guard up and many cases have since started tumbling out. “In Punjab, we found they even had a ‘tatkal’ service. If you pay a higher fee, you get enrolled within a few hours of applying! How can degrees be verified within a few hours?” asks Mishra.

Last year, amongst the many applications the Delhi Bar Council received was a request from a Diljit Singh. He had the requisite law degree, filled out the form correctly and had paid the fees. Everything was fine, except they discovered the man was a murder convict on interim bail. Singh realised the days of hoodwinking the bar councils were over and withdrew his application. In a chilling variation, the accused in the Priyadarshini Mattoo murder case, Santosh Singh, too had completed his law education before his conviction—from the same college as his future victim.

There are also many, like Kar, who don’t even bother with getting enrolled and reach the courts dir-ectly. “How do we question lawyers when they make their appearances in court?” asks an off-icial of a Madhya Pradesh lower court. Even if a fraudster files a vakalatnama, he says, it’s very difficult for the court—already burdened by heavy dockets—to verify if the enrolment number he provides is genuine or not. “Besides, he could be entering the genuine number of another advocate,” he adds.

Advocates are usually identified by their uniform, wearing their enrolment card is not mandatory. The Supreme Court, which has more resources at hand, is a lot stricter—entry there is not possible without either a court-issued ‘proximity’ card or a pass for lawyers made out in each instance. That’s the routine the BCI wants to universalise across courts, says S. Prabakaran, Chennai-based advocate and BCI co-chairman. “It requires a verified digital database. In cities and higher courts, judges and other lawyers can spot fakes, but in smaller towns and rural areas, who can tell if a lawyer is fake?” he asks.

“Once in the Patna HC, the judge caught on to a man posing as a lawyer. A case was registered, he’s absconding since then. In 2006, we had found hundreds of fake lawyers in Punjab, who were not even graduates, let alone law graduates, but were enrolled,” says Suraj Narain Prasad Sinha, Patna-based senior advocate and member, BCI.

Bihar has over a lakh lawyers but only 45,000 verification applications have come in. In Tamil Nadu, there are close to a lakh lawyers, of which 50 per cent haven’t submitted verification certifica-tes. Prabakaran estimates the number of fakes in TN at 3,000-4,000. “Sometimes the LLBs are fine but other deg-rees may be fake. Just last month, we found 90 lawyers had faked their documents, some were arrested,” he says.

The Unregulated Jungle

Setting legal education norms has been a challenge for the BCI for years. From time to time, it has framed rules—with attendance given a premium. Bar councils require law graduates to have 70 per cent attendance, certified by the principal. But it’s a teeming jungle out there.

In Bangalore, Safia Banu and Raviku-mar ran a huge racket, reportedly duping thousands of candidates by handing out fake certificates. They would cond-uct ‘exams’ at their centres with fake question papers and hand out ‘degrees’ within 30 days. Wilier candidates could opt for backdated degrees. When the police busted one centre, it found for-ged marksheets and certificates of both bonafide and suspicious universities.

Orissa has colleges where it’s absolute laissez faire for law degrees. No attendance is required. Candidates only need to show up for the exams, the staff take care of everything else. Pay the fees, and turn up with your books. The semester exams see mass cheating. Invigilators watch out for officials on inspection rounds. No prizes for guessing, it’s a big draw with candidates from neighbouring Andhra Pradesh and Telangana.

N. Ramachandra Rao, BCI co-chairman and Hyderabad-based senior advocate, demurs. He says AP and Telangana don’t have many fake lawyers. “It’s rampant in north India, we have found. They have to be weeded out. But in 20 years, I’ve known only one case in Andhra and Telangana. We generally don’t send for verification till there is a doubt. But now, every certificate has to be sent to the universities,” says Rao.

Confirming the authenticity of deg-rees can be tricky. In 1999, when a functionary of the Nagercoil Bar Association alleged that 37 lawyers in the district court had fake degrees, it became front-page news in all national dailies. With one lawyer among the 37, though, the prosecution was unable to prove its case and the trial court acquitted him; the Madras High Court confirmed it too.

Government officers who take up legal education offer a variation of the problem. They need special permis-sion to attend classes and have to prod-uce the permit slips when seeking enro-lment. A few years ago, an IPS officer enrolled himself for a law course in his city of posting. An activist filed a criminal complaint against him and the college claiming the IPS officer could not be att-ending law classes since he was in full-time employment with the police force.

The principal filed an affidavit saying the college conducted its classes bet-ween 7 and 9.30 am, Monday to Friday. After that, and because the IPS officer had been posted to Delhi before finishing his course, the HC quashed the case. The matter didn’t end there: the activist has now complained to the BCI, citing its rules that require a full-time course to hold five-hour classes per day.

One reason a section of lawyers challenges the new rules is that it creates a distinction between practising and non-practising lawyers. For example, corporate law practice involves legal advice to business firms; such lawyers do not appear in court. Ditto for lawyers who serve as notary officers, oath commissioners and those who prep-are the documentation for real estate transactions and so on.

The last lot—the dismal tribe ordinarily resident under peepul trees with their typewriters and prepared texts—naturally offers safe refuge for the desperately unemployed. Local governm-ents across India have been busting the? fakes among them too in inspection drives outside passport offices and such like. Some are in organised rackets, with faked seals and rubber stamps to notarise and attest documents; else, they are lone fraudsters who set up a table outside government buildings and courts to offer services on the cheap.

Notaries need to pass an exam and an interview, conducted under the law ministry. In 2015, the number of notaries was increased for several states in proportion to the increase in population (Delhi went up to a 1,000). Violations are punishable by up to one year imprisonment under the Notaries Act.

The regulatory dilemma, though, is this: whatever the shade of lawyer, the new rules require a renewal of all enrol-ments every five years. But perhaps these contentions can be sorted out within the fraternity. The worrying part is the number of fakes who parade through court. A bigger question: what happens to litigation that has passed through the hands of fake lawyers? Abroad, courts have ruled that this may even hamper a litigant’s right to legal representation—that’s a fundame-ntal right under the Constitution of India. And the biggest: with a genuine enrolment but a forged degree, what if a Munnabhai LLB sneaks past the guards into the judiciary? Caveat emptor….