Upshot of COVID-19 on functioning of Legal Fraternity (Indian Scenario)
After everything has been said and done and seen and experienced, it’s silly to apprise about the most unexpected and unwanted guest of the years, COVID-19. Subsequently facing five fat phases of lockdown in over two months, we are in the 1st phase of ‘Unlock’ from June 2020. It was equally heavy and uneasy for all the professions to keep up with the usual pace. Everything slowed down and some things also paused, but can crimes pause? Or can justice be delayed? Or this unwanted guest has the power to control disputes which arises among people? We all know that the answers to all these questions is a simple NO, which means that the Legal Fraternity might have lost its pace but it had no option to stop.
Let’s understand through the series of flashbacks first, that what the legal chronicles were during the lockdown; Post Janta Curfew which was on 22nd day of March 2020, it was expected that this will be followed by a National Lockdown and that’s when started the first phase of the lockdown from 25March2020 for around 20days, where almost entire legal clan went clueless about what’s going to happen next and when. Courts being public places had to stop working to follow lockdown nonetheless they were open only for urgent matters and no public were allowed other than parties to the matter. All this while, High Courts somehow managed to function through video conferencing, E-filing and uploading the documents. But due to lack of infrastructure, the district courts couldn’t function seamlessly and kept on updating next dates for all the matters. Not to forget about the Supreme Court, it also started working on the digital mode and the best step taken by Chief Justice of India, Sharad A. Bobde was to use its special power under Art.142, to extend the limitation period for all the cases around the nation and across all the courts and tribunals. Other than Courts, the ODR i.e. Online Dispute Resolution centers were helping people to solve their disputes through internet in this Pandemic. Not only the working of the courts is affected but it is seen that the livelihood of many advocates is influenced. The impact of COVID-19 in legal world is 360° and this couldn’t be less agreed.
One of the biggest topics discussed during the lockdown period was “Force Majeure / Vis Major”. Now Force Majeure/Vis Major is a clause which is put in contracts to determine that what can be done in the situations which are beyond the control of the parties to contract, e.g.; natural calamities like floods or cyclones and even manmade calamities riots, wars, etc. Being pandemic, COVID-19 falls in the coverage of Force Majeure. The Indian Contract Act has two such provisions related to Force Majeure i.e. Contingent contracts (S.32) and Doctrine of frustration of contracts (S. 56), i.e. if one has not incorporated the Force Majeure Clause, they will be blinded with the Indian Contract Act’s provision of S.56.
Effect of COVID-19 on IP Proceedings could also so be seen, like in Patent Office, all the hearings were suspended and also the extensions were provided for submissions until the resumption of Patent office. Same was the situation with the Trademark, Copy rights and Design Offices. The online hearings started after the first phase of lockdown and it was decided that only
the online hearings will be conducted until the further notice. Also, new filings are taken online as well. The disadvantage the IP owners have in this situation is they can hardly track the infringement specially that of Trademark. It’s not easy to course the infringers due to lockdown which is causing quite heavy losses to Trademark owners. Other than that, as we know that India is known for its Patent in Pharmaceutical Industry, there is going to be a hell of a rat race once the vaccine of COVID-19 is out.
Recently, on account of ‘Aatmanirbhar Bharat’ economic package, the Finance Minister had announced that COVID-19 related debts shall not be included in the category of default under Insolvency and Bankruptcy Code and more importantly, the centre has notified the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2020 to suspend Sections 7, 9 and 10 of the Insolvency and Bankruptcy Code, 2016 on account of COVID-19. The Ordinance has introduced new Section 10A to suspend initiation of corporate insolvency resolution process. In view of the new Section, no new insolvency proceedings can be initiated for defaults arising on or after March 25, 2020 for a period of six months or such further period, not exceeding one year.i
This pandemic has somehow reached the Indian prisoners, which is very risky; reason being that the conditions of Indian prisons is pathetic especially when it comes to hygiene. The good part is that the Supreme Court and the state authorities took some steps and released about 60,000 prisoners to decongest the prisons. Not only this, it’s been made sure that every prisoner gets mask. Prisoners are not allowed to meet family but they can connect to them virtually. Similarly, The Ministry of Micro, Small and Medium Enterprises, Government of India issued the Gazette notification to enforce the upward revision in the definition and criteria of MSMEs in the country to provide financial assistance. ii
Let’s now evaluate the advantages and disadvantages of the Virtual Courts – online hearings; online courts, E-courts, E-Hearings, Video Conferencing, E-filings and E-submissions, none of these are new for Indian courts. It has been more than a decade now that Indian courts were introduced to online courts, still due to poor infrastructure, everyone including Advocates don’t find it comfortable or easy to work on. Nevertheless, E-courts are real time and energy savers but India being a developing country is still struggling to get the hang of it. Not to forget the fact that High courts and the Supreme Court are managing it quite well; though a little carelessness can cost anyone bomb for;
For example:
Source: LinkedIn.
On the other hand, it’s safe and better than going out in such situation, saves energy, time and fuel. It’s
convenient and one has to adapt with this anyway as this is how the courts could work in future. However, Justice DY Chandrachud, in one of his webinar stated that,“virtual courts cannot replace open court hearings as it constitutes the spine of the judicial system.”
As it is clearly seen that, COVID-19 has impacted every business law as such, corporate laws, employment laws, finance laws, contract laws, investment laws, insurance laws, insolvency and bankruptcy laws which has bought the complexities. But, if you see the brighter side, many law experts took efforts to impart knowledge through webinars during the lockdown which anyone could attend.
This uninvited, unpleasant guest have drastically affected the whole system of legal fraternity, right from switching to virtual courts to having quite strong impact on so many laws. It has taken many prisoners out of prisons and has left many professionals jobless. Taught many and was a good lesson for others. It’s surely going to leave us all with some after effects that would be known soon. But for now, everyone has only one question to ask, “Atithi, tum kab jaaogey?”
i https://www.barandbench.com/news/law-policy/centre-notifies-ordinance-to-suspend-initiation-of-corporate-insolvency-resolution-process-on-account-of-covid19
ii https://www.barandbench.com/news/law-policy/central-govt-notifies-upward-revision-in-definition-and-criteria-of-msmes-new-definition-to-come-into-effect-from-july-1
Author: Geet Valecha, Legal Intern at Legal Desire (June 2020)
An IP fanatic who believes that ADR can solve many disputes if preformed reverently. A Media & Entertainment Laws Junkie. Full time Foodie and Classical Music Pupil at Sangit Mahabharti, Juhu. Drafting and vetting various documents are pleasures of her life other then travelling, eating and singing.
