This article is written by Aditya Singh from Symbiosis Law School, Noida. This article deals with the analysis of the petitions filed in High Courts of different states regarding the situation being faced by numerous advocates. The article also takes into consideration the remedies granted to such lawyers and the provisions which are applicable in such situations.
Table of Contents
Introduction
The period of lockdown during which a majority of the people are quarantined in their homes have affected each individual in numerous ways, one of which, for some people, is an active source of income. Many people have been dropped by firms or airline companies as they were not able to perform any regular business functions due to lockdown and maintain a workforce and paying them would eventually lead them towards potential loss. The situation of lawyers or advocates in our country is also the same, as the courts have not been working since March 2020 because of the global coronavirus pandemic. These are unusual circumstances in which many lawyers, their clerical staff, and the steno or the typists employed by them have no regular income source. Not everybody in this line of work has enough sources for maintaining the family and therefore, many lawyers who manage a family on a daily income basis are just about to die of starvation. Though the government is offering relief to families in need, such lawyers cannot even ask for support so as to ensure that the profession continues to remain honourable.
Petitions in different Courts
Uttarakhand
On Wednesday, the Bench composed of Justices Manoj Tiwari and Sharad Kumar Sharma requested the State Finance Department to finalize on a proposal, with respect to the release of funds in support of these needy lawyers, by 27th April 2020. Therefore, the Court directed the Principal Secretary of State (Finance), Uttarakhand Government, to make a decision until April 27, 2020, in respect to the recommendations made by the Law Secretary, so that the needy lawyers would be finally able to obtain financial support from the Uttarakhand Bar Council. The Court further stated that Uttarakhand’s Bar Council shall, within 24 hours, approach India’s Bar Council for financial support, as well as additional aid from the fund established under Rule 40, read along with Rule 41 of the Bar Council of India Rules. The Bar Council of India shall take a decision on or before 27.04.2020, considering the request made by the Bar Council of Uttarakhand.
N. Babulkar, the advocate general who is also the Advocate Welfare Fund Trust Committee’s Chairman, also submitted to the Court that seeing the urgency of the matter, meetings have already had been held and that the attempts were being made to procure such funds without further ado, recognizing that the monetary aid cannot be delayed as advocates are going through an unprecedented misfortune during this period.
West Bengal
The High Court of Calcutta recently expressed its concern on the matter of the Central and State governments owing large sums of overdue payments to Government Advocates, while dealing with petitions over financial assistance needed by the lawyers in light of the COVID–19 induced lockdown. Regarding this, Advocate Billwadal Bhattacharya presented before the Bench of Chief Justice Thottathil B Radhakrishnan and Justice Arijit Banerjee that the State government, as well as the Central government, still have huge amounts of legal fees remaining to be paid to the lawyers, who represented them in various cases, for the discharge of their professional services. Advocate Billwadal Bhattacharya also stated that the challenge faced by these government lawyers would be significantly reduced if these dues were fully resolved.
On Tuesday, the West Bengal Bar Council also presented before the Court that approximately 22,000 financial aid applications were received by them and that they were being processed. The State Bar Council further stated that they required authorization from the Bar Council of India before financial support could be provided to the lawyers in need. The State Bar Council also said that they were waiting for the response of BCI with respect to the letter written to them asking for such approval.
Karnataka
Recently, on the related note, the Karnataka High Court asked the BCI and the Karnataka State Bar Council (KSBC) what urgent support could be provided to the vulnerable members of the Bar who are suffering as a result of the Coronavirus Lockdown from lack of revenues. While dealing with a petition filed by Advocate H.C. Shivaramu, the Court passed certain directions, asking the respondents to appear before the court, highlighting the pitiful situation of junior advocates due to the closing of the state courts. The petition added that even the registered courthouse clerks are facing similar struggles. The petitioner, moreover, submitted that different welfare schemes had already been developed however no active measures had been taken by the KSBC to invite applications through these schemes to provide financial assistance. Furthermore, the petition asserts that failure to provide any financial help to such needy lawyers would be in violation of Article 21.
The Karnataka High Court has claimed that it is not in a position to order the Central and State governments to release financial resources for the benefit of lawyers registered with the Karnataka State Bar Council (KSBC) and that those deprived of employment following the closure of Courts in the state during the period of lockdown. The Court said that the use of relief funds was a policy matter related to the executive. On the contrary, it advised that the KSBC should appeal to senior lawyers to make donations and contribute funds during lockdown to support the advocates in need.
The Bench further said that it is true that following the closing of the courts as a consequence of COVID-19 induced lockdown, numerous lawyers have been impacted. It is an acknowledged fact that a significant cash shortage is faced by both the State and the central governments. It is a policy matter for both the state and central governments to make an informed decision to make use of the limited funds present with both the governments. This is why the Court could not issue a writ of mandamus ordering both the Central Government and the state government to allocate the funds.
Maharashtra and Goa
The Bar Council of Maharashtra and Goa (BCMG) has informed the Bombay High Court that they shall impart financial support under its welfare scheme to those lawyers who have been impacted by employment shortages due to coronavirus lockdowns. In the Nagpur Bench of High Court, Justice Amit Borkar heard a petition submitted by lawyer Mohammed Arif Sheik Dawood asking for directions from the BCI and the BCMG for the purpose of providing financial help to the struggling and indigent advocates stuck in the midst of lockdown.
Telangana
Bar Council of Telangana is prepared to call for applications from advocates requesting financial help, the Bar Council will perform the process of obtaining submissions from needy advocates and compile a list of qualified advocates after a merit-based review of the applications. Telangana’s Chief Justice Raghvendra Singh Chauhan will direct the council in this regard. Chief Minister K Chandrashekar Rao introduced a special Rs 25 crore scheme for distressed advocates on May 5 after receiving numerous requests seeking financial assistance.
Uttar Pradesh
Chief Justice Bench Govind Mathur & Justice Siddharth Verma noted that the Trustees Committee, which was established under the U.P. Advocates Welfare Fund Act, 1974, has not yet made the decision on the steps to be taken to assist the fund members. The Bench noted that the Trustees Committee’s delay in deciding on applications is quite concerning, and practically defeats the sole purpose for which the statutory fund was created. The Committee is a guardian of such a charitable trust and it should have responded with all due diligence upon receiving the applications to allocate help and support to the fund members or their heir.
Remedies granted
The Executive Committee of the Supreme Court Advocate-On-Record Association (SCAORA) decided at a virtual meeting that the COVID-19 financial support scheme would be restructured to benefit all the Advocate-On-Record and also the Advocates who are on the voter’s list of the Supreme Court Bar Association (SCBA), and who are in urgent need of financial help. They also stated that every request will be evaluated as to its legitimacy and only approved after consent and approval by SCAORA’s Executive Committee.
It was decided that AORs or Advocates whose names have been included in the voter’s list of SCBA 2019 and are wishing to take advantage of the benefits of the scheme, may furnish their basic details like, name, date of birth, bank account details, etc. Along with a declaration/undertaking which includes the following details needed to be specified:
- AOR Code of the AOR and the membership number as well as other particulars of the Advocates whose names have been included in the SCBA 2019 voters list, together with the serial number on the voting list;
- The AOR or Advocate who applied under such a scheme is in desperate need of financial assistance and is facing serious financial distress due to the COVID-19 lockdown;
- The AOR or Advocate’s income who are benefiting from this scheme should be lower than Rs. 6 Lakhs per year;
- That no other additional support or aid related to COVID-19, which is inclusive of loans, was obtained by the applicant during such duration from any other Bar Association.
The plea in Uttarakhand High Court, however, focused on the fact that Rs. 50 crores had been sanctioned by the Delhi government to the Delhi Bar Council for providing financial support to the indigent advocates. For these reasons, the petitioner demanded the allocation of Rs. 50,000 each to the needy lawyers facing financial problems, with the exception of those lawyers that have enrolled after 40 years or are now retired. The Uttarakhand High Court noted that relying on submissions made by the Bar Council of India (BCI) and the State Bar Council, there were ample funds kept by such institutions in multiple reserves to offer financial assistance to advocates in need in the midst of the COVID-19 lockdown.
The two-judge Bench also dealt with a plea seeking subsistence allowance, among other issues, for advocates who were deprived of employment during the COVID-19 lockdown. Replies regarding the case were filed by the BCI and the State Bar Council. Amongst other things, the State Bar Council has notified the High Court that the below-mentioned funds are available for this cause, i.e:
- Rs. 1 Crore obtainable from the Advocate Welfare Fund Committee account;
- Rs. 78.5 lakhs that the State Government is liable to transfer;
- Rs. 24 lakhs approved to be allocated by the BCI to the Bar Council of India Advocate Welfare Fund Committee for the welfare of the poor advocates during the current pandemic;
- In addition, approximately Rs. 6 lakhs are present in the interest account for the stated amount.
The State Bar Council confirmed that, after receiving the balance due from the State Government under Section 4 of the UP Advocates Welfare Fund Act, 1974 which is about Rs. 39.2 lakhs, an amount of Rs. 2.85 crores in total, would be available at the moment to provide respite to the needy lawyers. The BCI subsequently informed the Court that it had agreed to allow up to Rs 45 lakhs for State Bar Councils. Afterwards, if applicable, a cumulative sum of Rs. 1 crore i.e. during the next phase, Rs. 55 lakhs may be financed from the Bar Council of India Advocates Welfare Fund located at respective State Bar Councils.
The BCMG notified the Court that every one of such indigent and entitled lawyers could contact them looking for help and support and their matter would be treated with sympathy and financial support will be provided to them. The Nagpur High Court Bar Association also informed the Court that it has even undertaken proactive steps and provided its members with food kits and Rs 4,000 financial aid
The Bar Council already has allocated Rs 3,500 each to 3,454 junior practitioners that have asked for help as the first round of support. The bar council used almost Rs 1.2 crore to provide the first round of help which was raised by collecting funds and using the funds from the ‘Indigent and Disabled Advocates Fund’ established by the council.
The Awadh Bar Association, U.P, told the court that they have financial resources of approximately Rs.15 lakhs in hand, and a strategy had also been developed to distribute financial assistance to the indigent lawyers. A proposal was also made to all of the Senior Advocates and Advocates throughout the State of Uttar Pradesh, who have ample financial resources to support the Bar Associations of which they are members of, for lending necessary support to the Advocate Clerks who are going through unprecedented circumstances.
Applicable legal provisions
A Trustee committee has to be formed in accordance with the Advocate Welfare Fund Act, 2001. In the event of death, severe ailment, or surgery, the trustee committees are expected to provide financial support to the lawyers in need. It is significant to note that even the State Bar Council is required to share, with the trustee committees, 20 percent of its revenue earned from the enrollment fee. Till now, however, trustee committees have not come forth to offer financial support to needy lawyers. Pursuant to Section 11 of the Act, it is the responsibility of the Trustee Committee to accept requests by members regarding grant of such funds. Section 24(e) and (f) of the Act allow the trustee committee to decide on the allocation of funds that are sufficiently large to include resources for all the needy lawyers.
The petition presented in Uttarakhand High Court, furthermore states that the State Bar Council and State Bar of India have the authority, to allocate one or maybe more funds in the defined manner with the aim of providing financial aid for the organization of welfare schemes for the needy, handicapped or other lawyers, under sub-section 2 of Section 6 and additionally under sub-section 7 of the Act. Pursuant to Rule 44B of the Bar Council Rules, the Bar Council of India shall use the funds collected with respect to Rule 41(2) in compliance with the schemes that may be formulated occasionally.
Conclusion
The lockdown, which was again increased, has had a hard impact on the income and working of legal professionals, in particular junior lawyers, for whom the livelihoods depend on as to how the courts function. While the virtual courts exist, quite a few cases are dealt with, that also only on the grounds of being extremely urgent in nature. There is currently no normal schedule present for filing the cases as the court hearings are not being listed currently, which has left an overwhelming number of advocates out of their jobs, leading to a huge challenge for such lawyers to make their daily ends meet. Although others seem to be about barely managing to prevent themselves from drowning, a substantial number of lower court lawyers are uncertain as to how they are going to get through this lockdown period and that also without any regular income.
The standards for disbursement of financial assistance ought to be broadened so as to be able to aid every advocate who is in desperate need of money to meet his family’s requirements. If junior advocates are protected by the State government ‘s relief program, only those lawyers who have registered on or after January 1, 2015, will be eligible. But the underlying reality is that many legal practitioners will need at least 10 years to develop their own independent practice, particularly the ones’ practising in District and Mandal courts. The Government should, therefore, consider offering assistance to all advocates that have registered over the last 10 years. As it is not charity that one will be doing, it is just a service by our own community towards its own members.
References
- https://images.assettype.com/barandbench/2020-04/efd65a64-c58b-462f-a096-230c43980409/Manmohan_Kandwal_and_others_vs__State_of_Uttarakhand_and_ors____April_28_order.pdf
- https://images.assettype.com/barandbench/2020-05/d60bec0a-e363-471d-948a-b72816aa4bcc/Calcutta_HC_order_on_Payment_of_fees_to_Govt_Advocates.pdf
- https://images.assettype.com/barandbench/2020-04/a0944261-f2af-4f64-aa04-74b640b2daee/Karnataka_HC_petition___aid_for_lawyers.pdf
- https://images.assettype.com/barandbench/2020-04/edafdae8-327d-441c-a46f-434b96b793d9/Assistance_To_The_Needy_Advocates_And_Registered_Advocate_Clerks___Order_April_20.pdf
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