Introduction
On the announcement of nationwide lockdown initially for 21 days in order to contain the COVID-19 virus spread which was extended further resulting in a complete slowdown in our day to day life. Lockdown has brought great disparity within various sections of the society across the country, so much so amongst the legal professionals who have been deprived of their day to day professional work. In the legal arena of our country, things are set to take a paradigm shift. We all are aware that some of the legal professionals in India are well established and their image in the public is that of who move around in Audis and BMWs, who have become rich on charging hefty counsel fees. However this section of rich lawyers is a small fraction and majority of lawyers, especially in the lower courts, who function on a case-to-case basis and when the courts do not function, their economic condition, becomes precarious. The noble profession of advocacy is balanced only due to the service being provided by this majority section.
Effect of COVID-19 on Legal Profession
Lawyers have been deprived of their work due to imposition of nationwide lockdown. On imposition of the lockdown with an insistence on social distancing, the Judiciary, from the Supreme Court of India to the lowest court in the pyramid, has decided that they would only attend to extremely urgent matters through video conferencing. What counts as an urgent matter has been left to the discretion of the court officials, for example, a lawyer has to file a petition online with the court officials who will look into the urgency of a matter and will decide if it should be listed before the Court or not. In this manner only limited numbers of cases are being listed in the Courts, which are approximately less than 10% of normal listing of the cases. Due to the imposition of complete lockdown and curfew etc. and on account of restricted movements, our clients are also not able to reach in order to meet or take assistance of their lawyers. Thus in present scenario it can be said that the legal profession in the country has been halted. The struggling lawyers were not fully prepared for this rough patch situation due to the Corona virus pandemic. In the lawyers’ circles, we often state that the vast majority of lawyers are almost daily wage workers particularly the junior lawyers. These young lawyers have to face such economic distress even when the courts go on for two months vacations. In many lawyer households, the preparation for such vacations starts at least a month earlier, when expenses are cut to brace for the impact of holidays. A person who has to especially carryout professional activity won’t be able to earn anything for his livelihood unless he works.
Disparity amongst the Lawyers
Legal profession features some advocates who use to charge Lakhs for one hearing of the case. This group is small minority but they corner a disproportionate number of important matters in the courts. Now due to sudden imposition of lockdown, majority of lawyers are at bay and their situation would improve only when the courts starts functioning normally. Besides this the unequal mix has also exacerbated the condition of struggling lawyers as the limited number of litigation goes only to selective senior advocates during this lockdown. Initially every first generation Lawyer has a struggling story. The field of law is a closed sphere, complete with its own esoteric rules and rituals which are completely unfamiliar to someone new to it. We all know that advocate fraternity has no social security as they are private professionals unlike salaried employees. Also we must not forget that every aspiring lawyer have crossed the struggling phase in his/her initial days of practice.
Step up first to take a call
The fraternity, especially the affluent and well-settled members of the legal profession, had to step up first to take a call at their end as to how they could support their struggling and suffering brethren. But many Bar Associations as well as well the established Senior Advocates have shown insolence and naught concern towards their struggling colleagues during this period. Though the situation has prompted some of the State Bar councils who have responded to the lockdown problem with a proposal of financial aid to the needy lawyers The Bar Council of Himachal Pradesh has also devised strategy to provide the financial help to needy lawyers during the lockdown by giving a lump sum amount of Rs. 5000/- to the needy lawyers after getting the scrutiny of their applications, which they made seeking financial help to curb them from such distress. I wonder would that be a sufficient amount for survival particularly when the lock down period has extended for almost three months.Burden to pay rent during Covid-19 crisis: Now I would like to advert to a specific problem being faced by maximum legal professionals. In Himachal Pradesh with its hilly terrain have an arriving distance of almost 10 to 24 hours from one district to another and it has inhibited the junior lawyers to rent out accommodations in order to embrace with their profession. These advocates are staying with their families in the rented houses. Most of the Advocate’s offices are in the close vicinity to the courts which also cost with heavy rent charges. Due to the close down none of the advocates were able to work or earn money during all this lock down period. To pay the rent they have to depend on their daily earnings but with no such earning the situation have become worse. Further burden of maintaining their families, to pay their livelihood and to maintain such premises without any income for months all together have become a herculean task for all these professionals.
Doctrine of Frustration of Contracts
During the present COVID-19 crisis such rent payment obligations are vigorously evaluating the ‘Force Majeure’ clause under their respective agreements or the ‘Doctrine of Frustration of the Contracts’. Of course remedy to invoke non-payment due to a Force Majeure event in the absence of a supporting clause or a specific rent waiver clause, is not possible. In case the agreement does provide for stoppage of rent or suspension of all obligations during a Force Majeure period without any qualifications or riders, then the lessee should immediately exercise its right by issuing a letter to the lessor invoking Force Majeure event and intimating cessation of its obligation to pay lease rental during the period the Force Majeure event continues. The repercussions of COVID-19 on rent contracts in India are to be seen from its contractual perspective also. COVID-19 has affected the ability of lawyer to meet their obligations due to restriction in movement and stoppage of work.
Need for formulating the policy decision or COVID-19 Stimulus package to needy Advocates
In this situation if the struggling legal professionals will be forced to vacate the rented premises or either they are forced to pay the rent at any cost during this period, it would set a defile paradigm. The non-payment of rent or any other unilateral decision may lead to termination of their rent agreements for breach of the terms and conditions. Therefore under such circumstances the respective Government should come forwards with policy decisions for protection of tenants who belong from legal profession, by relaxing payment or waiver or suspension of rentals during this period which is the only solution left. More so even after removal of the Lockdown the normal working of courts might take few more months, whereof the present distressing situation for such legal professionals may not improve. The Bar Council of Delhi has initiated on this issue and has written a letter to the Hon’ble High Court of Delhi requesting for the waiver of the rent for premises which are used for professional purpose by the advocates. I say that this would be the perfect time for the Government of India as well as different State Governments to help the vulnerable among the needy Advocates to survive from the crisis by formulating beneficial policies or by paying or by waiving off their rentals. Already some policy decisions have been taken by the Governments to benefit the other sections of society such as labourers, migrants, people in small sector trade, small scale industries, MSME’s and students etc. Similar beneficial policy decision would be helpful to facilitate and support lawyers under this distress time. Time, however is tough, though it may change but we must learn the ability of embracing the change. With these comments I, hereby conclude my words with trust and hope that the legislature will take an effective steps to give financial assistance to the all needy lawyers.
The Author is a practicing Advocate and Former Deputy Advocate General at Himachal Pradesh High Court, Shimla.