All about the Act

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This Blog is written by Anish Bachchan from Amity Law School, Noida. Edited by Ravikiran Shukre.

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INTRODUCTION:

March 22nd, 2020, when our prime minister declared a nationwide lockdown all over India. In just a matter of few days, our daily lives have changed. With it, we started to live the new reality. A reality, we once thought could never happen but it did anyway. I’m talking about the stay-at-home procedure. Who could have thought we’d be working or attending classes at home because COVID-19 tied our hands? Face masks and social distancing became our new way of life. The limitation of going places also became a deal though we got used to it. In all honesty, none of us knew up until now, how to face this so-called “new normal”.  It wasn’t just us, but the entire world is facing this crisis since the Second World War.

As the days’ progress, the virus became deadly and costly for us. Some lost their lives. The virus infected the others. Most importantly, the majority of the masses have lost their jobs to this virus. India Today estimates that about 12.2 crore people have lost their jobs during the pandemic[1] One of the worst instances of the pandemic was when millions of migrant workers traveled back to their homes due to their losses of jobs. This resulted in a huge disaster and it was a nightmare for a lot of people [2] And to add salt into injury, people losing their only means of livelihood could also have a tremendous effect on their mental health.

The lawyers and advocates are no exceptions to this. Things have gone so bad that one Times of India report says that about 40 lawyers have perished due to COVID-19 in Nagpur. The bar association is now seeking help from the government [3] While the lockdown was going on, many lawyers were forced out of their firms due to a lack of physical/regular work. Many lawyers don’t even have the means to pay their staff or feed the mouths of their families. Speaking of the former, they do not have means of income due to the risk of losing their jobs. And since their work is on daily basis, it might endanger themselves, their families, and even their lives.[4]

The lawyers are the backbones of the judiciary in India. They played a profound role in both the independence movement from the likes of Gandhi to Rajendra Prasad. Their contribution to the making of the world’s longest constitution. The lawyers revere Dr.B.R. Ambedkar for his magnum opus that is the Constitution of India. The works of Ram Jethmalani have been respected by lawyers across the country. So if their lives are in peril it could lead to severe consequences. And if I’m talking about severe consequences, I mean the structure of the judiciary or democracy as a whole would collapse.

Fortunately, enough, the government has enacted a policy that could be advantageous to the lawyers in a time like this. The law is known as the Advocates’ Welfare Fund Act 2001.

WHAT IS ADVOCATES WELFARE FUND ACT, 2021?

The duty of the State to actively promote welfare for its citizens has been explained by Article 38 of the Indian Constitution . The raison d’être of the nation lies in Welfare [5] A nation’s existence will cease without the concept of welfare. So the Central Government has enacted the Advocates’ Welfare Fund Act 2001 to help the advocates in dire need of monetary and financial help. The main aim of this Act is to provide assistance and support to the lawyers financially. The Act also includes the period of the pandemic. Because during the pandemic, lawyers would have to deal with medical bills and lack of money. [6]

WORK OF TRUSTEE COMMITTEE:

The government is responsible for the creation of the funds under Section 3 of the Act[7] Meanwhile, under Section 4 the creation of the Trustee Committee has given them certain functions that are as follows.[8]

1. The administration of the funds is their main objective.

2. The funds’ assets and accounts should be maintained or hold.

3. They can receive fund applications. They can also dispose of them within 90 days of the receipt.

4. They can receive applications from the members or their heirs for the payment of the fund. If they find out any inappropriateness after careful investigation, they can reject the application within 5 months.

5. They must send periodical and annual reports to the State Bar Council and the appropriate government.

6. They must keep records of the application. There must be transparent communication with the applicant regarding this.

CRITICISM OF THE ACT [9]:

1) Compulsory membership and welfare stamps have been not provided by the Act. This could serve as a big loophole.

2) The clients are compelled to pay for the stamps to contribute to their funds. It is done for the Vakalatnama: A legal document that authorizes the advocate to represent on their client’s behalf. Section 27(2) of the Act says otherwise. It says that the cost of stamps should not be bared by the client. [10]

3) Some believe that there was no need for secondary central legislation when the Advocates’ Act 1961 is doing its job well in the legal profession.

ADVOCATE WELFARE SCHEMES, 2020:

Petitions [11]:

1. In the case of Manmohan Kandwal and Others v. State of Uttarakhand and Ors., Justice M.K. Tiwari and Justice S.K. Sharma requested the State Finance Department. Their request was to finalize the proposal of releasing the funds so that they could reach the lawyers in need. [12]

2. The Karnataka High Court requested the Bar Council of India and Karnataka State Bar Council to provide financial support urgently to the lawyers whose revenue had hit hard during the COVID-19 lockdown. It further stated that failure to do so will be a violation of Article 21[13] of the Constitution.

3. The Bar Council of Maharashtra and Goa told the Bombay High Court that they will provide support for the welfare of the lawyers facing employee shortages due to COVID-19 lockdown.

4. The Bar Council of Telangana is prepared to provide help to the lawyers in desperate need of financial support. The Chief Minister of Telangana introduced a scheme of Rs. 25 crores to advocates in financial distress.

Remedies Granted [14]:

It was decided by the Executive Committee of the Supreme Court Advocate-On-Record Association in a virtual meeting that they need to reshape their COVID-19 financial support plan. The plan in action would be advantageous for the advocates-on-records. It could also help the advocates who are on the voter’s list of the Supreme Court Bar Association.

In the Uttarakhand High Court, a plea was made. According to the plea, the Delhi Government had sanctioned Rs 50 crore to the Delhi Bar Council to help the desperate advocates. The petitioner wishes that at least Rs 50,000 are donated to the lawyers in dire need of money. The exceptions should be the lawyers who are 40 years of age or have retired.

The High Court trusting the submission made by the BCI and the State Bar Council expressed that there are ample funds. These funds are kept under the said institutions to give financial support to the advocates who suffered financially because of the COVID-19 lockdown. The State Bar Council informed the High Court that their funds which are at the disposal for the cause: –

1) The Advocate Welfare Fund Committee will provide Rs. 1 crore.

2) The State Government will have the responsibility to transfer Rs. 78.5 lakhs.

3) The BCI will distribute the funds costing Rs. 24 lakhs to the poor lawyers at the height of COVID-19.

4) Rs. 6 lakhs will serve as an additional interest account.

Rs. 3500 has been paid to each of almost 3500 junior practitioners by the Bar Council. These practitioners have asked for the first wave of support. The former also spend Rs. 1.2 crores to the first wave of support. This was done by amassing the funds and using them for the “Indigent and Disabled Advocates” which was established by the council.

The court was informed by the Awadh Bar Association, U.P that about Rs. 15 lakhs are ready for use. The latter also prepared a strategy to help the poor lawyers. The senior-most advocates and advocates all over Uttar Pradesh, have proposed a plan to provide financial backup to the bar association. Their adequate resources would be enough to help the advocate clerks who face unprecedented problems.

CONCLUSION:

The country saw the devastating effects of the second wave of COVID-19. On the internet, we saw funeral pyres on a massive scale. People succumbing to COVID-19 due to a lack of supplies. The hospitals themselves were running out of beds and oxygen cylinders. The government and the people on social media took it among themselves to provide all the help the COVID-19 victims need. The advocates are doing everything in their power to help those in dire assistance. And the schemes, although sound well-intentioned might suffer the chance of backfiring. So the upper echelons of the Indian judiciary must take necessary steps. These steps need to be ubiquitous. So that the rest of the judicial brass don’t have to suffer at the hands of COVID-19.

And even if the second wave of COVID-19 is on a sharp decline there’s the uncertainty that lives will be normal again. Not to mention, that the upcoming third wave might be more disastrous and tragic. So the judiciary must provide help to the lawyers and advocates whose fates might cut short because of COVID-19 (literally and financially).

REFERENCE:

[1] Desk, I. T. W. (2020, August 21). Around 12.2 crore people lost their jobs: How Covid-19 will change job prospects and hiring in India. India Today. https://www.indiatoday.in/education-today/jobs-and-careers/story/around-12-2-crore-people-lost-their-jobs-how-covid-19-will-change-job-prospects-and-hiring-in-india-1713616-2020-08-21

[2] Express Web Desk. (2020, December 25). The long walk of India’s migrant workers in Covid-hit 2020. The Indian Express. https://indianexpress.com/article/india/the-long-walk-of-indias-migrant-workers-in-covid-hit-2020-7118809/

[3] Bose, S. (2021, May 25). Nagpur: 40 lawyers die of Covid; bar association seeks government aid. The Times of India. https://timesofindia.indiatimes.com/city/nagpur/40-lawyers-dead-due-to-covid-bar-assn-seeks-aid-help-from-pm-cm/articleshow/82922062.cms

[4] Rai, D. (2020, August 27). Financial aid to lawyers during COVID-19. IPleaders. https://blog.ipleaders.in/financial-aid-to-lawyers-during-covid-19/

[5] Legal India News. (2016, July 7). Article 38 of Constitution of India. Free Legal Acts, Bills, Rules & Legislation: Legal India. https://www.legalindia.com/acts/topic/article-38-of-constitution-of-india#:%7E:text=Article%2038%20of%20Constitution%20of%20India%20%E2%80%93%20State,inform%20all%20the%20institutions%20of%20the%20national%20life.

[6] Sehgal, D. R. (2020, October 16). Advocates’ Welfare Fund Act, 2001: introduction and overview of the Act. IPleaders. https://blog.ipleaders.in/advocates-welfare-fund-act-2001-introduction-overview-act/

[7] Section 3 of the Advocates’’ Welfare Fund Act 2001. (n.d.). Indian Kanoon. Retrieved June 2, 2021, from https://indiankanoon.org/doc/994939/

[8] Section 3 of the Advocates’’ Welfare Fund Act 2001. (n.d.). Indian Kanoon. Retrieved June 2, 2021, from https://indiankanoon.org/doc/994939/

[9] Sehgal, D. R. (2020b, October 16). Advocates’ Welfare Fund Act, 2001: introduction and overview of the Act. IPleaders. https://blog.ipleaders.in/advocates-welfare-fund-act-2001-introduction-overview-act/

[10] Section 27(2) of the Advocates’ Welfare Funds Act 2001. (n.d.). Indian Kanoon. Retrieved June 2, 2021, from https://indiankanoon.org/doc/1366023/

[11] Rai, D. (2020, August 27). Financial aid to lawyers during COVID-19. IPleaders. https://blog.ipleaders.in/financial-aid-to-lawyers-during-covid-19/

[12] Manmohan Kandwal and Others . . . v. State of Uttarakhand and Others on 28 April, 2020. (n.d.). Indian Kanoon. Retrieved June 2, 2021, from https://indiankanoon.org/doc/20975007/

[13] Balaji, R. (2021, May 14). Covid: NHRC issues advisory to ensure the dignified disposal of bodies. The Telegraph. https://www.telegraphindia.com/india/coronavirus-outbreak-nhrc-issues-advisory-to-ensure-the-dignified-disposal-of-bodies/cid/1815623

[14] Rai, D. (2020, August 27). Financial aid to lawyers during COVID-19. IPleaders. https://blog.ipleaders.in/financial-aid-to-lawyers-during-covid-19/