Immoral qualms

Can the Union law minister come to the rescue where health ministers have failed? I am referring to the unending chain of deaths of infants in hospitals in West Bengal during the last few days that was followed by an acid bath to a lady still to recover from post-natal trauma. Early this year, over 16 expectant

mothers died in hospitals in and around Jodhpur — contaminated IV fluid was blamed, investigation was promised, but nothing has been heard since. And nothing will be heard in a country which, as a matter of routine, tolerates death traps to many unsuspecting children in the form of uncovered manholes or tube wells, that overlooks school buildings that are fire traps, and ill-constructed buildings and bridges that collapse periodically, burying several
residents and commuters.
All these, and many more such tragedies, have one thing in common, namely, negligence — nay, callousness. The culprits may be drug companies, professionals like doctors, contractors or public authorities, and these several problems may defy a single solution, but the incidents of the sort listed have one sure cure in the hands of the law minister.
Imagine that the B.C. Roy hospital deaths or any one of these incidents had occurred in the United States. A class of lawyers, derisively described as “ambulance chasers”, would have rushed to the victims or their families and entered into simple contracts under which the lawyer undertakes to sue the wrongdoers for damages. As part of the job, the lawyer would investigate into the probable cause of the tragedy by hiring experts and collecting evidence. All expenses are borne by the lawyer on the condition that he would be entitled to an agreed percentage, generally 30 per cent, towards his fees and expenses — from the ultimate damages recovered. This class of lawyers works in teams and is generally efficient enough to immediately get the relevant records of the hospitals or the premises of other erring parties sealed, the samples of medicines used preserved and may even get the factories that manufactured the drugs searched and, if necessary, locked up through the process of law. Thus, vital evidence is immediately protected. Since all such tragedies are the direct result of negligence of one or more, all the cases end up in award of heavy compensation, with a high component of punitive damages.
This process not only compensates the victims without risking their money and time, it also has the salutary effect of making the hospitals, drug companies, doctors and the society at large extra careful in the discharge of their duties because a predator in the form of a contingency fee lawyer is lurking around.
In India, a lawyer cannot enter into such a contract because it is opposed to “public policy”. “Champerty”, i.e. an agreement to share the spoils of litigation, is regarded as immoral. The philosophy that litigation should not be encouraged is imported from England. However, the English have changed with the times. In the 1990s, the law was relaxed to permit “conditional fee”, and in 2009, the Lord Chief Justice of England appointed a one-man committee headed by Lord Justice Rupert Jackson to suggest ways to reduce costs of civil litigation. In his 577-page report submitted in January 2010, Lord Justice Jackson recommended the introduction of “contingency fee system” that is prevailing in the US as a funding model for contentious proceedings.
His recommendations are likely to change the English legal system shortly. However, we in India feel holier than thou and unwilling even to experiment in certain areas of day-to-day life, like torts, i.e. civil injury due to the negligence of someone who has a duty to be careful. The contingency fee system is being progressively adopted in different parts of the world because with sufficient supervision by courts, it can be used both as a preventive and ameliorative measure.
Everyone in the US from hospitals and doctors to restaurant owners is extra cautious to protect themselves from accusations of negligence. Food adulteration hardly exists in that country. Even complicated cases like long-time health hazard to asbestos workers or even to tobacco users have ended up in compensating the victims and even the winding up of huge
erring corporations in some cases. A giant
corporation like British Petroleum, whose sea-floor oil gushers in the Gulf of Mexico leaked, causing damage to the American beaches, had to shell out billions — in the ultimate analysis because of the fear of
the contingency fee lawyers.
The Bhopal gas leak tragedy of 1984 resulted in death and debilitating injuries to a very large part of the city’s population — some say the number of the dead alone was more than 10,000, the number of those who suffered serious injuries went into several lakhs. Destruction of livestock was enormous. Since the wrongdoer was an American company — Union Carbide — dozens of contingency fee lawyers from that country descended in Bhopal even before the dead could be buried (buried, because there was no means of cremating that many bodies at once). Union Carbide wanted the trial to be held in India — they were aware of our slow-motion justice system that would ensure status quo for at least a century. The Government of India as a statutory guardian of the victims and the US lawyers wanted the trial to be held in the US courts — to get better compensation and quicker decision. Our legendary lawyer, late N.A. Palkhivala, filed an affidavit before the US court that the Indian judicial system was efficient enough to deal with the Bhopal case — one wishes this were true. This helped the US company to literally get away with mass murder — the US court declared that India is the proper forum, and India lost a chance of getting to know the contingency fee system from close quarters.
Legal aid programme has failed to make access to justice easier to the needy, but the need to seek justice increases by the day. Courts are notorious for huge costs and delay. Maybe the contingency lawyer will provide the solution —he can get his share only when the case ends. He will shun delay.
Several chairmen of law commissions of India have been approached to examine the advisability of introducing this system — obviously, no one found it interesting. All that is needed is to change the existing rules under the Advocate’s Act — maybe by adding new ones to permit contingency fee contracts in some areas of law. Details will follow. Can the Union law minister score where the health or railway ministers failed?

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India