By Mayank Khera

India’s steadily growing economy continues to remain a bright spot amidst the widespread uncertainty and economic volatility that other countries are facing. India is well on its way to become the world’s third-largest economy by 2030. The booming and robust financial services sector has been a key catalyst in driving India’s economic growth. Banks and other non-banking financial services companies have catered adequately to the needs of retail customers as well as businesses over the years through advancement of credit, cash flow management, and other services.

Studies show that during 2008-2014, India witnessed a high credit growth of 16.8%. However, from 2014-2021, the credit growth slowed down to 8.3%. One of the reasons for this deceleration was the burdening of financial institutions with non-performing assets (NPAs). The NPAs were owing to the economic slowdown, over lending in certain sectors, non-traceability of borrowers, lack of data access to assess correct creditworthiness and upsurge in lending of unsecured debt. Therefore, timely recovery of debt and regularising the NPAs is critical for maintaining a profitable balance-sheet and avoiding liquidity crisis that may result in the failure of financial institutions.

From the borrower’s perspective, many who take loans are unable to repay it and have to either face the lender’s recovery cycles or be stuck in the ever-burdened system of litigation. This is where mediation can come as a big relief for these debtors. It is said that “An ounce of mediation is worth a pound of Arbitration and a ton of litigation” and this quote truly describes the essence of mediation as a process in terms of debt recovery.

To put simply, Mediation is a non-adversarial alternative dispute resolution process in which the concerned parties involve a neutral mediator to reach an amicable agreement by creating a conducive environment for the parties to discuss, understand and explore various resolution options available to them.

Through mediation, both the financial institution and borrower may get benefits such as cost-effectiveness, speedy resolution, and a win-win outcome for them.

Litigation is time consuming, expensive and leaves parties with little to no control over the outcomes. The courts have recognized this aspect and have increasingly promoted alternative dispute resolution systems between the parties.

The erstwhile Chief justice of India, NV Ramana, in his article, emphasized the importance of mediation and predicted its growth in the future as it is a quick, cost-effective, and convenient resolution method. The Supreme Court in its various judgments also held that alternative dispute resolution mechanisms can be relied upon by the parties to resolve disputes arising from business and commercial contracts.

Mediation is a voluntary process, meaning that participation requires the agreement of both the parties—the borrower and the financial institution. The statements made before the mediators are neither binding nor detrimental to the locus of the said parties.

This voluntary aspect endows the parties to actively engage in the resolution process. In the process, the neutral party or the mediator facilitates a meaningful one-on-one conversation between financially overburdened borrowers and the financial institutions.

It lowers the stress of borrowers and helps them with a manageable debt payment schedule while helping the financial institution with the inflow of the outstanding amount.

Unlike the litigation process, since mediation is not dependent on presenting evidence, it results in a friendly and flexible approach helping the parties focus more on finding solutions than following legal formalities.

In the case of Chanda Engineers (India) Ltd vs. U.C.O Bank, the Calcutta High Court held that the mediation process doesn’t have to adhere to a strict procedure, but must respect the principles of natural justice.

Mediation also prevents aggression between the parties, allowing the mediator to connect them with each other, remove any misunderstandings, and maintain future relations. It is mutually beneficial for the debtors and creditors.

As it is a one-on-one process, it is confidential and voluntary as compared to trials conducted in open courts where information presented is accessible to the public.

Further, in mediation, when there is a gap or obstacle in the process of reaching an agreement, and no offers seem to be agreed upon by the parties, the mediator will try to show the reality to them that their case may not be strong as they think and going for litigation may become expensive for the parties.

The mediator may advise the parties to trade off the less critical thing with more essential things and open the frame of options by brainstorming, thereby resulting in an efficient and effective conclusion of the matter.

With the ever-increasing demand for credit and the law regarding recovery of debt in India still being an assortment of multiple laws, there is a probability of legal proceedings being initiated in multiple already overburdened forums.

This results in unnecessary persecution of the parties instead of resolving the NPAs. In such a situation, where both lending and recovery are sensitive and challenging areas, Mediation can act as a boon for efficiently recovering the debt in the most practical manner.

It is, therefore, high time for both the financial institutions and the borrowers to welcome and explore it with open arms.

—Mayank Khera is the Co-Founder and COO of Credgenics.

By Justice Bhanwar Singh and Dr NK Bahl

In a move of far-reaching consequences for Indian lawyers, the Bar Council of India (BCI) allowed foreign lawyers and law firms to practice in India. Though they cannot appear in courts, they can advise clients on foreign law and do corporate transactions. Before discussing the pros and cons of this move, it is important to understand the legal scenario in India first.

Practicing law, no doubt, is a noble, dignified and aristocratic profession. Clearing the All India Bar Examination conducted by BCI is also essential for practicing law in India. Every advocate whose name is entered in the state roll shall be entitled to practice in all courts, including the Supreme Court. However, any court or authority may permit any person not enrolled as an advocate to appear before him in any particular case. During the British regime, even non-law graduates were authorised to work as vakils in district courts.

After registration with any state Bar Council, an advocate can start practice in that state, but he has to clear the All India Bar Examination within two years from the date of registration at the state Bar Council.

But, in a departure from all this, the Supreme Court, in BCI vs A.K. Balaji and Others, held that foreign law firms and foreign lawyers can practise in India, but cannot appear before courts, tribunals or other statutory or regulatory authorities here. They also cannot set up offices and practice in India. However, they can give advice to Indian clients on “fly in and fly out” on a casual and temporary basis. For this too, they have to observe a code of conduct. 

It was also held that “practice” of law includes litigation as well as non-litigation and practice by foreign law firms and foreign lawyers is not permissible without fulfilling the requirements of the Advocates Act, 1961, and Bar Council of India Rules. It was also held that BPO companies provide a wide range of customised and integrated services and functions to their customers like word processing, secretarial support, transcription services, proof reading services, travel desk support services, etc. If, in pith and substance, these services amount to “practice”, the provisions of the Advocates Act, 1961, will apply and foreign firms and lawyers will not be allowed to do so. This will be decided on a case to case basis.

It was also held by the Supreme Court that there was no absolute right of the foreign lawyer to conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration. If the Rules of Institutional Arbitration apply or the matter is covered by the provisions of the Arbitration Act, 1996, foreign lawyers may not be debarred from conducting arbitration proceedings arising out of international commercial arbitration in view of Sections 32 and 33 of the Advocates Act, 1961. However, they will be governed by the code of conduct applicable to the legal profession in India. The Bar Council of India or the Union of India is at liberty to frame rules in this respect.

Recently, the Bar Council of India decided to allow foreign lawyers and firms to practice in India in the field of foreign laws and international issues in non-litigious matters. Thus, the gates for overseas players will be open to practice in India. This is being done on a reciprocal basis. The registration of a foreign lawyer or firm shall be done for five years, which can be renewed within six months before expiry of the validity period of five years.

The Bar Council of India Rules for Registration and Regulation of Foreign lawyers and Foreign Law Firms in India, 2022, were notified on March 10, 2023. These rules, as a subordinate legislation, have the sanctity of law. These rules are framed under Section 49 of the Advocates Act, 1961, which is the principal legislation.

Once foreign lawyers and firms are allowed to enter, through the “power of attorney” they can plead and argue in any court in India on behalf of the person giving the power of attorney. Similarly, a “brief holder” on behalf of an advocate can argue in any court of law and foreigners will not be an exception to it. If a foreigner himself is involved in any case in India, he can plead and argue in person with the permission of the court without engaging an Indian lawyer. It is an open secret that British lawyers whose mother tongue is English will overawe most Indian lawyers working in the Supreme Court and High Courts with great aplomb.

While litigation officially starts at the doorstep of courts, it is always triggered in the office of an advocate or corporate legal firm where the foundation of the case is laid by drafting. The first stage of litigation begins when a lawyer sends advance notice to the opposite party. For example, two months’ advance notice has to be given to the central or state government or a public officer under Section 80 of the Code of Civil Procedure, 1908, or a notice has to be given to a tenant terminating his tenancy under Section 106 of the Transfer of Property Act, 1882, before filing of a suit for rent and ejection in a competent court of law. 

This preliminary work can be done by anyone, including a foreign lawyer. This is at the pre-litigation stage where appearance in the court is not immediately required. This is the preparatory stage which entails fees to be paid. Interestingly, disputes between parties are often settled in pre-litigation meetings.

The drafting of plaints, written statements, affidavits, various deeds such as sale deed, gift deed, lease deeds, acquisition deeds, intellectual property rights sharing deeds between author and publisher, arbitration agreements, amalgamation documents of companies, insolvency petitions, contracts between various contractors, banking documents for mortgage in granting loans, etc., do not require appearance in courts. They can be prepared by foreign lawyers or firms, giving direct competition to practicing lawyers in India and thereby jeopardising their interests.

Similarly, if anyone wants to file his return under RERA, GST or Income Tax Act, 1961, he can get it prepared through a foreign lawyer or firm and file it himself. This too will affect the practice of Indian lawyers.

A foreign lawyer or legal firm may engage an Indian lawyer to argue in Indian courts, while the rest of the work can be done by foreigners. It will be legal, but is it a step in the right direction vis-à-vis the decision of the Bar Council of India? Indeed, it is a loophole and foreign advocates can take advantage of it, thereby exploiting the average class of lawyers in India.

So how can this be checked when a foreign lawyer or firm is working within BCI rules? Who can stop foreign lawyers from providing legal advice to clients by charging hefty fees? In any case, this arrangement will adversely affect the income of Indian lawyers.

There are other loopholes. How is it possible to check whether foreign lawyers or firms are practicing in foreign law or local Indian law unofficially? Will their income be checked? We do not have any mechanism which can work as a cagey controller looking into the functioning of foreign lawyers and firms. In order to have a foolproof system, access to their bank accounts and time sheet, an ombudsman will be required. The power to make inquiries and surprise inspections of their offices is also to be regulated by law, which is yet to be enacted by Parliament. The Bar Council of India and government have to take steps in this direction.

The Bar Council of India has permitted the entry of foreign lawyers and law firms in a restricted, controlled and regulated manner with a rider of reciprocity. Lawyers groomed in India will be at liberty to move to the reciprocal countries for practicing in foreign lands. This will require a mutual international treaty between such countries. 

It is felt that more and more Indians will opt to go abroad for better earnings, facilities, feasibility, identity, opportunities and better law and order than foreigners coming to India. Will it give a boost to domestic internships and consequently, lead to opportunities for job placements? Will this not amount to brain drain from our country?

—Justice Bhanwar Singh is a former judge of the Allahabad High Court and is presently professor of law at DME. Professor NK Bahl is former District Judge & Sessions Judge, UP, and teaching law at JEMTEC School of Law, Greater Noida

The Tripura High Court directed that the  LGBTQIA + community (loosely defined grouping of lesbian, gay, bisexual, transgender and other queer individuals united by a common culture and social movements) for representing before the government their grievances .

The Court said that on receipt of such representation, the government shall consider and take appropriate steps following the judgments of Supreme Court  in  National Legal Services Authority versus Union of India reported in (2014) 5 SCC 438 in true letter and spirit.

The Division Bench of Chief Justice T. Amarnath Goud (Acting) and Justice S.G. Chattopadhyay closed a Public Interest Litigation (PIL) filed praying for necessary directions from the  High Court upon the respondent to act in compliance with the order passed by the Supreme Court vide judgment in National Legal Services Authority versus Union of India reported in (2014) 5 SCC 438. 

The petitioners have further prayed for directions from the  High Court to direct a judicial inquiry by the District Judge of the incident of illegal detention and harassment, mentioned hereinafter, that occurred on the fateful night on 08.01.2022 for bringing out the circumstances under which four persons were illegally detained and harassed and to fix responsibility for taking action against those who were involved in the said illegal detention and harassment and to give compensation to the four persons mentioned hereinafter for their illegal detention and harassment on the fateful night of 08.01.2022 along with further directions upon the respondents to regularly organize seminars, awareness programs, workshops and Gender sensitization programs in all Government.

Departments so as to make the workspace more acceptable towards members of the LGBTQIA + community, and to inculcate subjects and chapters in the educational curriculum of Schools (Class-XI-XII) and Colleges specially B. Ed. Colleges, dealing with the LGBTQIA + community and their equal rights as citizens of India to which they are entitled.

Roy Barman, senior counsel appearing for the petitioners has contended that the orders passed by the apex court as referred above are by framing the guidelines of the LGBTQIA and third gender cases have not been carried out by the Government of Tripura.

Further, he has contended that on 08.01.2022, the petitioner and other persons were put to harassment by the reporter and few other police officials and thus seeking relief, the petitioner has approached this court by filing this petition.   

D. Bhattacharya,Government Advocate appearing for the respondents has placed on record the instructions received from the respondents stating that in view of the public menace caused by the petitioner and other person in collecting money on the streets by changing their costumes, the police has taken them into custody and registered the cases and also gave them counseling and further showed that such type of counseling on this people will be held periodically.    

Roy Barman, denied the contentions which are given in the written instructions by the respondents and contended that this is only harassment of the police department against the petitioners.   

“Having heard the counsel for the parties prima facie this court is not satisfied that this litigation falls under Public Interest Litigation. Since the counsel for the petitioner is for the larger interest of the LGBTQIA + community, a liberty is given to the petitioner that all such kinds of people to represent before the government through their association ventilating their grievances and on receipt of such representation, the government shall    consider and take appropriate steps following the judgments of Hon’ble Supreme Court in true letter and spirit.

Further with regard to the cases registered against the petitioners it is open for the petitioners to take appropriate steps”,the order reads.

Supreme Court judge Justice D.Y. Chandrachud, talking about the need for political engagement in a democracy, said that the issues requiring the involvement of elected representatives should not be decided by the Apex Court. The judge said, “Supreme Court cannot and must not transcend its role by deciding for elected representatives.”

Justice Chandrachud was speaking at the King’s College in London on the topic “Protecting human rights and preserving civil liberties: The role of courts in a democracy.”

While talking on the subject, Justice Chandrachud said, “Thinking of Supreme Court as a one-stop solution to resolve complicated issues of policy and society shows the waning power of discourse and consensus building.”

The judge said, “It is true that the Supreme Court of India must protect the fundamental rights of persons and perform its constitutional duty.” He further said that we must resolve issues through public deliberation, discourse and the engagement of citizens with their representatives and the Constitution.

Justice Chandrachud said the trend of increasingly rushing to the courts shows how people have started losing patience with political discourse. He said, “This results in a slippery slope where courts are regarded as the only organ of the State for realization of rights — obviating the need for continuous engagement with the legislature and the executive.”

Justice Chandrachud spoke of the various judgments where the Apex Court played an important role in protecting the fundamental rights of citizens and the realization of constitutional goals.

Another topic that was touched by the justice was “gender” which has been an important subject of engagement for the top court. He discussed many historic decisions that have been taken in the Supreme Court on gender rights.

He added that the role of the Supreme Court has moved beyond discrimination and now focuses on the binary division of gender into men and women, gendered notions of certain professions, and discrimination on the basis of gender- in the workplace, within the confines of one’s home, or in society, among others.

Ending his lecture, he stated the fulfilment of the ideals of the Constitution and the protections guaranteed under it cannot only be achieved by exercising our role as citizens once every five years. There must be a continuous engagement with all the pillars of democracy, Justice Chandrachud said.

NALSA organised the second National Lok Adalat (NLA) for current calendar year 2022 today.

The Lok Adalat was successfully organised  both in physical and hybrid mode in 24 States/UTs across the country, under the aegis of National Legal Services Authority (NALSA)

The Legal Services Authorities across the countries have recorded an unprecedented disposal figures during the last National Lok Adalats of 2021 and first NLA of 2022 under the able guidance of Hon’ble Executive Chairman, NALSA.

Justice Uday Umesh Lalit while speaking on the occasion stressed upon the need of an easy and accessible legal help to common men so that he is encouraged to actively participate in the the process. 

The Executive Chairman and the Supreme Court Judge Justice Uday Umesh Lalit, inaugurated the National Lok Adalat in the District Court Complex, Srinagar (J & K)

Justice Lalit was accompanied by Hon’ble Mr. Justice A.M. Magrey, Judge, High Court of Jammu & Kashmir (J&K) & Ladakh and many other important officers of State Legal Service Authority of J&K.

Hon’ble Justice also interacted with litigants, specially the ones who belonged to poor class as they too are a chain in the society

Justice Lalit was god to see  a large of satisfied  litigants who expressed their happiness over Lok Adalat that settled their disputes within a short frame of time.

As the program progressed , the Hon’ble Mr. Justice U.U. Lalit gladly handed over a cheque of ₹ 1.2 crore to father of one of the victims of an accident who is in coma (unconsciousness) for last 4-5 years & struggling for survival.This is one of the many cheques that he gave. Many beneficiaries were glad to have their cheques of settlement given.

National Lok Adalat are held at regular intervals of 3 month, the best part is that in a single day Lok Adalat are held throughout the country.

What is worth noting is that this is held in all the courts till the Taluk Levels wherein pending and pre-litigation cases are taken.

This is die with a single  objective of disposing  cases in conciliatory manner.
As the courts are soon going for a small break during summer vacations, many High courts and District courts have already either preponed or rescheduled their Adalats.

To make the matters easy for common man, Maharashtra, Daman & Diu and Dadar & Nagar Haveli have successfully conducted the Lok Adalat on 07th May 2022 ,while Telangana, Tamil Nadu, Gujarat, Karnataka, Andhra Pradesh, Kerala, Puducherry and Andaman & Nicobar Islands will organise on 26th June 2022.The state Goa is planning to organise a LokAdalat on 25th June 2022.

As per the figures received till the end of the programme ( till 5.00 P.M) about 56.82 lacs matters have been reported to be settled, which include 8.53 lacs pending cases and 48.29 lacs pre-litigation cases.

The total value of the settlement is reportedly ₹ 2648.43 crore. The said disposal would result into easing the burden of the pending cases.

Not only settlement of pending issues, NALSA has come up with easing the summer in North ,for which necessary arrangements for sheds like tents, water and other essentials were made by the Legal Services to ease the plight of common citizens.

The year goal and endeavour of NALSA this year is to focus on promoting people friendly and people centric Legal Aid system.

NALSA along with other Legal Services Institutions conducts Lok Adalat at regular intervals for disposal of civil and criminal compoundable criminal cases either pending or at pre-litigation stage whether before any Court or tribunal.

Lok Adalat is basically a dispute redressal mechanisms, where disputes/cases pending in the court of law or at pre-litigation stage are settled/ compromised amicably.

Lok Adalat have been given statutory status under the Legal Services Authorities Act, 1987.

 Under the said Legal Services Authorities Act, the award decisions made by the Lok Adalats are to be a decree of a civil court and is final and binding on all parties and no appeal against such an award lies before any court of law.

The part that makes it easy for common man is that there is no court fee payable when a matter is filed in a Lok Adalat.
If a matter pending in the court of law is referred to the Lok Adalat and is settled subsequently, the court fee originally paid in the court on the complaints/petition is also refunded back to the parties.

According to the new concept, financiers pay legal fees and other costs of commercial lawsuits, arbitration or shareholder disputes, and in return, get a share of the award from a settlement or a win.

By Abhilash Kumar Singh

Over the last decade, the concept of litigation funding has gained ground as a result of greater globalisation and liberalisation of funding regimes across jurisdictions. In fact, litigation funding is now considered the new normal for capital infusion for furthering resolution of disputes, in both domestic litigation as well as international arbitration. As a consequence of this advancement, it is now more important than ever for lawyers to have the best understanding of the concept of litigation funding.

If one has to describe litigation funding, it refers to third-party financing of some or all of the legal expenses that are associated with one or more legal disputes in exchange for a certain share of the proceeds recovered from their resolution.

The first and foremost attribute of litigation funding is that such transactions are non-recourse. In other words, in the event that there is no recovery made from the dispute, the disputing parties are under absolutely no obligation to repay the funder for his investment.

Nevertheless, litigation funding has gained traction amongst investors in the last couple of years. From their viewpoint, litigation funding is a good investment that stays unaffected by any other business cycle. Hence, in a time of economic downturn when other investments may not yield benefits, litigation funding seems to be unaffected. In fact, as a general consensus, litigation finance is known to provide high returns to investors. This is primarily driven by low investment compared to significantly higher returns for investors, as they often end up with multiples of the initial investment made.

As on date, there is no legislation that regulates third-party funding for litigation and/or arbitration in India. However, the Supreme Court in Bar Council of India vs AK Balaji clarified: “There appears to be no restriction on third-parties (non-lawyers) funding the litigation and getting repaid after the outcome of the litigation….Third-Party Litigation Funding/Legal Financing agreements are not prohibited.”

In a country like India where there is liberalisation of economic policies and doors are thrown open to foreign investments, disputes and differences are bound to arise between parties. In fact, it is this upward trend in economic activities that has led to India becoming one of the most upcoming hubs for commercial arbitration. As a result, it cannot be denied that India eventually would need a comprehensive and progressive legal framework that would support convenient dispute resolution, providing for maximum judicial support for arbitration and minimal intervention.

However, it is well-established law in India that advocates are expressly barred from funding any sort of litigation and/or arbitration when representing a party in a dispute. This, in turn, could raise eyebrows for funders who seek contingency fees of legal counsel as a critical factor to determine an investment decision.

Some of the world’s top litigation financiers like Australia’s Omni Bridgeway and a unit of US insurance broker Marsh Insurance Company plan to tap the Indian market by funding the legal costs of disputes that embroil companies. The concept of litigation finance is widely prevalent in Australia, the UK and the US where such financiers pay legal fees and other costs of commercial lawsuits, arbitration or shareholder disputes and in return, get a share of the award from a settlement or a win.

In India, however, this is a little known concept, with cases few and far between. While companies stand to gain by safeguarding themselves against costs of fighting big ticket claims, financiers and their investors stand a chance to get higher returns on their investment when a decision favours those they are backing.

Omni Bridgeway, the world’s second largest litigation financier with more than $1.5 billion in funds under management, and Abu Dhabi based Phoenix Advisors said they plan to set up India operations soon. Omni is already in talks with prospective clients. “We are talking to various Indian corporates about their case load and how we can help derisk that or monetise that,” Tom Glasgow, Omni’s chief investment officer for Asia, reportedly said.

To ensure growth in the Indian market and increase confidence among Indian consumers, funders have come to form the Indian Association for Litigation Finance (IALF), a body that will self-regulate and promote knowledge about litigation finance in India. Funders such as Omni Bridgeway, Phoenix Advisors, Profile Investment and other service providers like Singularity Legal, Marsh, PSL Advocates and Solicitors, FTI Consulting and Grant Thornton are also involved.

Prateek Bagaria, Founder, Singularity Legal LLP, has stated: “Indian law has been a frontrunner in accepting litigation finance since 1876. To add to this, international disputes have seen a huge growth in India today. Massive scams such as those in PMC and Laxmi Vilas Bank reflect the kind of large disputes that have brewed up in India. Therefore, the Indian market couldn’t be more ready for the funders to tap into this lucrative jurisdiction and to fund Indian disputes and parties. Through IALF, the funders, service providers, practitioners and arbitral institutions will set themselves up as progressive, knowledgeable and ethical service providers whom clients can readily engage.”

On the other hand, Tom Glasgow, CIO, Omni Bridgeway, stated: “Indian parties are frequent users of offshore arbitration and litigation and there are many opportunities to help them derisk, improve their prospects of success and generally leverage the value in their claims.” He said his company is a founding member of the International Legal Finance Association, a global, independent, non-profit trade association promoting service for the international legal finance industry. As a member of the Working Group charged with building the framework for the Indian Association of Litigation Funders, they are hoping to bring the same international best practices and education to the Indian market.

While litigation funding is not prohibited in India, there may be rules arising under contract law regulating this to prevent unequal bargains. As this is a matter of contractual arrangement and one party, typically the claimant, would always have greater need, the investor may exploit them.

Also Read: India: Democracy or Mobocracy?

In the decision in Ram Coomar Coondoo and Anr vs Chunder Canto Mookerjee (Privy Council), it was observed by the court that while litigation funding may promote access to justice, such agreements need to be “carefully watched”. When found to be extortionate, unconscionable and inequitable or made not with the bona fide object of assisting a claim believed to be just, effect ought not to be given. Hence, some regulations governing litigation funding may be framed. Another issue which should be kept in mind is confidentiality. Confidentiality of the information pertaining to litigation should be ensured.

—The author is Advocate, Supreme Court of India 

The lockdown has left many junior lawyers in the lurch and they’re unable to fend for their families. It is time bar associations and senior lawyers helped them tide over this crisis

By Kush Sharma  

The nationwide lockdown to contain Covid-19 has brought to the fore the great disparities in various sections of society, including in the legal field. In this arena, there has been a paradigm shift in the working of courts. While there is a small fraction of rich advocates with envious lifestyles, a majority of lawyers, especially in lower courts, function on a case-to-case basis. So when courts don’t function, their economic condition becomes precarious. The noble profession of advocacy is balanced only due to the service provided by this majority section.

Thanks to the lockdown, many lawyers have been deprived of their work. Along with the need for social distancing, all courts are attending only to urgent matters through video-conferencing. What counts as an urgent matter has been left to the discretion of court officials. The procedure is that a lawyer has to file a petition online with the court officials who will then look into the urgency of a matter and decide if it should be listed or not. Only a limited number of cases are, therefore, being listed in courts and are approximately less than 10 percent of normal listings.

Additionally, clients are also not able to reach the courts to meet their lawyers. This has almost halted the legal profession. Struggling lawyers have been hit hard. In legal circles, it is often said that a vast majority of lawyers are almost like daily wage workers, particularly junior ones. They face economic distress even when courts shut for the annual two months’ vacation. In many of their households, the preparation for such vacations starts at least a month earlier when expenses are cut to brace for the impact.

What has exacerbated the condition of struggling lawyers is that the limited  quantity of litigation now goes only to selected senior advocates. Every first generation lawyer has a story of struggle. This, coupled with no social security, leads to a precarious financial situation. It is time the legal fraternity, especially affluent and well-settled members of it, take a call on how to support their struggling brethren. While some bar associations have responded with a proposal of financial aid to needy lawyers, many others are found wanting.

The Bar Council of Himachal Pradesh has devised a strategy to provide a lump sum amount of Rs 5,000 to such lawyers after scrutiny of their applications for financial help. But isn’t this amount too little for survival? Many advocates in the state live in rented accommodation which is close to courts where the rents are high. The lockdown has put paid to their daily earnings and survival itself is now in question.

Many are now evaluating whether the force majeure clause can be invoked in rent obligations. Of course, this has to be accompanied by a supporting clause or a specific rent waiver clause. In case the agreement does provide for stoppage of rent or suspension of all obligations during a force majeure period, then the lessee should immediately exercise this right by issuing a letter to the lessor and cease paying rent.

Non-payment of rent may lead to termination of rent agreements. Under such circumstances, the government should have a policy to protect tenants of the legal profession by introducing a relaxed payment, waiver or suspension of rentals during the lockdown period. Moreover, even after the lifting of the lockdown, normal work will take months to resume in courts. The Bar Council of Delhi has written a letter to the High Court requesting that the rent for premises which was used for professional purposes by advocates be waived.

This is an apt time for the centre and state governments to help needy advocates survive this crisis by formulating beneficial policies or by paying or waiving their rentals. The government has already taken some policy decisions to benefit labourers, migrants, MSMEs, students, etc. A similar policy to support lawyers is the need of the hour.

—The writer is an advocate and was former Deputy Advocate General at the Himachal Pradesh High Court

Lead picture; Anil Shakya