On March 24 evening when Prime Minister Narendra Modi announced a nationwide lockdown for 21 days to contain the coronavirus pandemic, S Palani, a lawyer who practices in the civil courts in Chennai, decided to find whatever transport he could to get back to his village in Kancheepuram, about 75 km from the city.
Palani felt that a three-week lockdown would mean zero income for him. The 35-year-old employs one junior, a woman lawyer who lives in a hostel in Chennai. The situation is so tough that he does not know how to pay her this month. “I give her Rs 7000 a month and then a percentage of the fee I get,” the lawyer said. “Now even I wouldn’t get Rs 7000.”
Across India, the nationwide lockdown has brought to the fore the great disparity in the legal profession. Mention lawyers and the image that strikes the public is that of famous names who move around in Audis and BMWs and charge massive amounts of money. But this section is a small fraction. The vast majority of lawyers, especially in the lower courts, function on a case-to-case basis for their income.
And when the courts do not function, their economic situation becomes precarious.
When the nationwide lockdown with an insistence on social distancing was announced on March 24, the judiciary, from the Supreme Court to the lowest sessions courts, decided that they would only attend to extremely urgent matters. This would be done through video conferencing.
What counts as an urgent matter was left to the discretion of the court officials. In Delhi, for example, a lawyer has to file a petition online with the court officials with a one-page statement explaining why the matter is urgent. The court officials will look at this explanation and decide if it should be allowed.
High Courts across India, which for the most part have only one bench functioning, are barely taking up three or four cases, meaning most of the massive numbers of pending matters have to wait for later.
In the lower judiciary, lawyers said most civil courts are not hearing matters. “Due to the lockdown, the governments are not issuing any coercive orders that need court’s intervention,” the Chennai-based lawyer said.
In criminal courts, most states have given interim bail to undertrials. This means those who are accused and are awaiting trial have, unless their alleged crimes are heinous, been given automatic bail. This is relevent because in the normal course of things, bail matters are the most important income generators for many lawyers working in sessions courts.
A government lawyer in Pune, requesting anonymity, said even fresh arrests are far and few. “The police is busy with lockdown. Everyone is inside their houses,” the lawyer claimed, explaining the fact that crime rate, at least anecdotally, has gone down.
Family courts have also seen their work grind to a halt.
Sudha Ramalingam, a family law expert, said visitation – where a parent that has not been given custody is allowed to meet a minor child – usually happens in the child care centres inside the court premises. “Now the centres are closed. If a parent doesn’t allow visitation, the other parent cannot even approach the court,” she said. This is because most of the family law cases aren’t considered urgent matters.
Family courts are also a big income generator for such lawyers. “I haven’t attended any matter after March 23,” Ramalingam said. “In the lawyers’ circles, we often state that the vast majority of lawyers are almost daily-wage workers. I am really worried for the junior lawyers.”
Young lawyers who depend on government work for their income are also facing the problem of delayed payments. A Delhi-based lawyer said his retention fee of Rs 14,000 a month from a government board has not been paid for March yet. With no hearings, this situation may continue till the lockdown is lifted.
These lawyers face such economic distress when courts go on summer vacation between May and July. In many lawyer households, the preparation for the summer vacation starts at least a month earlier, when expenses are cut to brace for the impact of the holidays.
The legal profession features some senior counsels who charge lakhs for a hearing and crores as retention fees. This group is a small minority but they corner a disproportionate number of important matters in the courts.
That unequal mix has been exacerbated during the lockdown.
Bengaluru-based lawyer Rohit Shetty said since urgent matters involve an important matter, the cases are going to popular senior counsels. “They then do arbitration and other consultation outside the courts,” the lawyer said.
None of this would be possible for an ordinary lawyer. “We don’t charge for every hearing on hourly basis like the big guns do. We take money when we file the case and then if we manage interim orders,” said a Kochi-based lawyer, now a junior to an additional advocate general.
Lawyers’ associations have responded to the lockdown problem. The Supreme Court Bar Association now provides an interest-free loan of Rs 25,000 to members repayable in two years. Bar Associations in Maharashtra, Tamil Nadu and Karnataka are devising their own strategies to provide financial help to struggling lawyers during the lockdown. In Tamil Nadu, lawyers have appealed to the State Bar Council to create a corpus of Rs 2 crore to deal with the situation.
However, lawyers said the situation would improve only when the courts start functioning normally.
Those disproportionately affected are lawyers from the Scheduled Caste, Scheduled Tribe and Other Backward Classes. A lawyer and activist of the Viduthalai Chiruthaigal Katchi in Tamil Nadu, who requested anonymity as he appears for state government departments, said the vast majority of young lawyers in the lower courts are from these groups.
They are essentially first generation graduates with no family legacy in the profession, which tends to be the case among many upper-caste lawyers who dominate the profession. “These groups see law as an emancipating profession,” the activist said. “But the reality of economics is brutal.”