The Author, Mrityunjoy Seal is an Advocate at Calcutta High Court and Founder, Sealex Legis Firmus, Advocates & Consultants. Hon Patron to Communiqué Medico Legal Community
COVID-19, among various nuisances as already created impacting global economy adversely, is likely to throw out the Indian legal profession into unimaginable disarray and unprecedented challenges. That is going to impact not only operation and functioning of the Bar and Benches, but independent mediocre law practitioners, in-house counsels, secretarial and auditing/accounting professionals, law students and junior advocates having no chamber support of friends and relatives, small and medium size law firms, not so wealthy potential clients and litigants, low paid law clerks, supporting hands, law books and software publishers and sellers, law book editors and proof readers, steno-typists, computer operators, photostat and printers, food vendors in and around court premises, stationery and stamp vendors and many such significant and insignificant hands closely interrelated with legal profession, excepting top law firms listed in Forbs India.
Four Cs are going to play crucial role. In addition to Client, Court and Counsel, Cost would invariably be determining the major direction in all respect. Majority of litigating people are concerned with their personal liberty and deprivation of properties being the two major sources of plausible conflicts leading to litigation. At the very threshold the most decisive issues would be (i) value of dispute and (ii) alternative avenues to settle as far as possible at personal level or by promise or threat. In other words, unless statutory mandate would be a driving force, many of the potential litigants would be shying away from tilting for court option even if remedies are apparently favourable.
Trend of virtual and e-court system in any case started taking centre stage in on-going debates between the Bar and Bench at all level. In one hand lack of individual e knowledge, skill and expertise and on the other cost, time and litigation management efficiency enhancement are being argued vehemently by both sides. Mandatory continuous legal education for practising advocates is considered actively by the Bar Council. Bars in general are of the opinion that the virtual and e court system would be curbing their flexibility, privacy and liberty in functioning and client management. Bench opines that restricted number of adjournments and availability of counsel at any location would indeed expedite clearing of mounting bunch of litigations no sooner than expected before Covid-19. USA and UK case management system are being cited as examples by many in support of their respective arguments. India perhaps is poised to curve out a new model in the days to come. It is natural that unofficially, many common and small practitioners in legal, secretarial and accounting/auditing profession would be trying out alternative avenues to make living. In any event, after continuous lock down of more than two months now, without any financial support and social security benefits, many practitioners, especially the sole bread earners and having no other sources of livelihood have started experiencing the real crisis to survive. These professionals belong to a class, high in social status and personal prestige and not inclined to stand in a relief distribution queue or stretching hands to political parties for aids, finding extremely difficult to survive during and post Covid-19 lock down. Exception could be the criminal law practitioners in lower courts as with every economic slowdown and crisis in the socio-economic context; rate of crime and unnatural death is expected to be higher than before.
“Survival of the Fittest” theory of famous English Naturalist, Geologist and Biologist Charles Robert Darwin would find an opportunity to apply to Indian legal professionals in the days to come. Those having deeper pockets and connects, better edge over e-com management support and e knowledge, superior knowledge and court craft besides excellent communication skill would be surpassing the rest in the struggle for existence. Early economic recovery, robust socio-economic policy, stable corporate and revenue laws and supporting judgments, sustainable environment and health care management system and Bar-Bench-Government cohesion in future litigation management are some of the basic parameters for turning the present gloom into positive outlook in the time to come.
Rampant changes in corporate and insolvency laws by subordinate legislation, recent trend of PIL designed to aid political objectives and agenda, inclination of judiciary to tread into executive arena at every fall of hat, dilution of limit and imitation under insolvency laws, extension of time lines, waiver of fees, penalty under company law and various other deferrals, waivers, relaxations, extensions have collectively become contributing factors for the practitioners’ woes, clients’ delight though. This is going to continue, if not aggravating in a regime of tighter legislative control by the executives and policy makers in the face of further economic gloom and fiscal deficit, unless cleared by an imaginary magic wand.
In such a tumultuous situation, the following issues could be explored by all concerned, including prospective clients and potential litigants in protecting their rights, recovery of legitimate dues, defending undue claims and demurs and lodging protest against unlawful claims and complaints.
- Prospective clients and potential litigants may be looking for legal counselling than conflict strategy making. Advice and guidance in that behalf particularly for mediation, out of court settlement, negotiation, conciliation and even time bound arbitration by those having specialised knowledge on the subject of dispute may be looked at favourably for cost and time saving, real value addition. Clients’ interest protecting measure by alternative dispute resolution process with a spirit to resolve and not prolong the crisis would definitely be taking the driving seat.
- Just like Financial Audit, Secretarial Audit, Tax Audit, Cost Audit, safety Audit, Quality Control Audit, Health Audit, Legal Audit of all pending and prospective litigation and case management by trained and qualified lawyers may be preferred by the prudent clients; and made mandatory for all business entities, Government department and companies, NGOs, high net worth individuals, clubs, hospitals, associations, societies, HUF and so on by legislation. Bar Council should formulate modus operandi, audit guidelines and prescribe suitable audit fees in line with ICAI, ICSI, ICWAI guidelines.
- Pre-litigation review and due diligence of the cause and issues of litigation by an independent law firm just to gauge the depth of the matter may be opted by prudent clients. It may be presumed that in many of the issues, litigation option could be pre-empted by a robust dispute resolution process.
- Social distancing concept would be going for a toss, as experienced by the nation on day one of liquor shops re-opening in lock down. In a 30 seat capacity court room in high court, one may recall suffocating experience when 300 odd advocates gather at the first sitting of the Court for mentioning of early hearing or elevation in list or unlisted motion matters. On the context of social distancing, one could imagine the picture of congested court rooms, corridors, bar libraries, roads and pavements leading to court houses, canteens just to mention a few. In such uncontrollable situation, e-conferences with clients, counsels, e filing and digital hearing are the only plausible and practical solution to maintain social distancing. It is not unknown that how many wash basin, soaps and tissue papers are available in court premises to wash hand after every external object touching. Bar Council would need to take a call on the detailed modus operandi and basis of fixing fee and other issues in the scenario of e court operation in the days to come. For example, if the terms of engagement would be same of a senior counsel based in Delhi were to appear in Bombay High Court in person pre Covid-19 situation and post Covid-19 in the same high court over video conferencing from the cosy comfort of his home at Delhi? Many road blocks and hurdles are sure to be coming on the way. As they say, “where there is a will, there is a way”!
- For disputes with State authorities, banking and insurance companies activating recovery mechanism through departmental proceedings and ombudsman system may be strengthened for deferring the court procedure till at an inevitable stage. This would ensure flexibility of follow up and easier recovery process bypassing long drawn court rigmarole.
- Many States have already activated e-valuation and registration of immovable property by online payment of stamp duty. Similar system could be introduced for other revenue generating; quasi-legal procedures, for example, e deposit of rent with rent controller etc. It is unimaginable that for submission of Bar Association Annual Subscription, one has to stand for half of a day in the queue. Bar Association could not by far evolve a smarter way of online subscription payment system. The list may be even longer. We need to change our mind set, and change for good. The rest would be easier.
- With relaxation of general meeting attendance rules by video or other audio video mode by the shareholders, the common people may be in a quandary on way forward. In the new world of opportunities, lawyers may be taking up assignments in guiding and helping them to exercise their rights in corporate democracy and decision making process.
- With growing dispute between the employers and employees post Covid -19 scenario, lawyers would have ample opportunity to advise both sides for an amicable resolution and effective compliance management mechanism under the new labour laws regime.
- Instead of advising married couples to litigate on personal problems, unless the dispute is irreconcilable or marriage is irretrievable or a mutual/contested divorce is unavoidable, lawyers may take the role of mediators and counsellors to help retrieving and saving a happier home.
- In the current situation the lawyers may be taking up various projects as part of legal assignments and negotiate fee on deliverables, not assuring result as barred by the Bar Council. This is an alternative to in-house counselling in supporting and guiding business objectives.
It is needless to say that despite all adversities, the process of reading, writing, listening and speaking at reasonable length must be continued as opportunities never come with prior notice. Attending webinars, e conferences and workshops, writing articles, delivering e lectures, appearing in virtual court matters and regular knowledge update are the key words for the lawyers during and post Covid 19. Last but not the least, minding personal and family health is of paramount importance by maintaining social distancing, using PPE as necessary, not spitting in public places and complying with applicable rules that are needed in combatting Covid-19 and going forward in post lock down.
It is time to be prepared to accept many ‘new normals’ as they come, with a very positive outlook. Changes are good for all concerned. The Bhagabat Gita reminds us “sukhani, dukhani cha, chakrabat paribartote”. Stay home and safe.
