This article is authored by Anmol Chaudhary, who has recently finished the Integrated Course (B.A. LL.B.) at the University School of Law, Rayat Bahra University, Mohali, Punjab. Throughout the internship at LeDroit India.
KEYWORDS:
∙ Pro Bono
∙ Public Interest Litigation
∙ Post- COVID
∙ A new era of Lawyers
∙ Technology and Legal Access
∙ Judicial Response
1. ABSTRACT:
The actions of my government related to the pandemic have felt like they are out of the loop from what I can control, not to mention the trajectory of the virus. It is imperative that we find what we can control and move forward as much as we can. What good can we do? How might the legal profession supply some good in light of the global pandemic? Working from home, and a slightly lighter caseload for many, both provide us with the opportunity to engage in Pro Bono work, which is now more important than ever. Given that many of us may now have more time on our hands, I encourage all legal professionals to lend their skills, knowledge and capacity to help.
2. INTRODUCTION:
The global legal landscape transformed during the COVID-19 pandemic, characterized by significant changes in court systems, court processes and the broader practice of law. In India, a significant aspect was the increase in pro bono public interest litigations (PILs) by lawyers across the country, many of whom were working pro bono. Lawyers submitted public interest litigations on behalf of socio-economical disadvantaged migrant populations, healthcare access, digital divides, and holding government accountable. This has reignited the conversations about cause lawyering, a practice whereby lawyers practice law using social justice strategies independent of commercial goals and advances the public good.
3. LEGAL ADVICE CLINICS:
Legal Advice Clinics have emerged all over the country in response to the gap in legal aid and have since developed into a core service needed by the population to access justice. The clients they served are typically low-income, come from a variety of cultural backgrounds, and now need them more than ever. Global crises affect women and minorities in a more negative way than they affect the average citizen. This pandemic has not been an exception to that phenomenon. During times when stability and safety may come from having reliable housing, healthcare, income, and internet, people have gone to Legal Advice Clinics for help.
Lawyers have responded to this crisis in two ways so they can continue providing free legal advice through these Legal Advice Clinics.
Firstly, the clinics have had to make a complete shift to running digitally – over phones, over Skype and by email. They are not using the in person clinics that lawyers would have run throughout London and it has required lawyers to quickly adapt their soft-skills with clients particularly over the phone. I have carried out one myself and interviewing clients over the phone is a completely different experience from face to face. You have to control and determine the flow of conversation with only your voice, you have to pick up small social cues to get to the facts and you have to be extra clear with your client – there is no way to assess whether your message has been received and understood just over the phone.
Secondly, these clinics are financially dependent on donations. Law firms have filled the fundraising void in response to clinics are unable to fundraise in the traditional sense as a result of the pandemic.
4. THE LANDSCAPE OF PILS PRE-COVID:
Public Interest Litigation (PIL) in India has its origins in the late 1970s and early 1980s when the Supreme Court liberalized the rules around locus standi and permitted individuals with public interest to access the courts on behalf of more marginalized communities. The Supreme Court judges who engaged with the PIL process, like Justice P.N. Bhagwati and Justice V.R. Krishna Iyer, were very innovative and aimed to institutionalize the PIL mechanism, which meant democratizing access to justice.
But PILs became a bit of a mixed bag over time. Some led to landmark decisions such as the Vishaka Guidelines, Right to Food and Environmental Protections, while other PILs were wrongly perceived by the judiciary, at times as frivolous, elitist or as judicial overreach. Also, while some PILs raised various public interest issues, many were mostly advancing the agenda of NGOs and other interest groups with financial and institutional resource ability, access, networks and so on). They too were not systemic with their public interest pro bono participation efforts.
5. COVID-19 AND THE REVIVAL OF PRO BONO PILS:
The emergence of the pandemic in March 2020 revealed significant vulnerabilities in India’s socio economic landscape: mass migration, digital inequity, tenuous health infrastructure, and more. With the courts operating virtually, lawyers, many of whom were working from home, were prompted to reconsider their professional roles.
Some notable aspects of the COVID-era pro bono PIL explosion include:
∙ Lawyers as First Responders
Where state mechanisms failed, lawyers filled the gap as a frontline advocate, as with urgent PILs that were filed on matters such as:
o Stranded migrant workers (Alakh Alok Srivastava’s PIL in In Re: Problems and Miseries of Migrant Labourers)
o Oxygen supply crises and hospital bed shortages
o Exorbitant fees for RT-PCR testing and COVID-19 treatments
o Vaccine distribution and transparency of government contracts
∙ Digital & Decentralized Legal Mobilization
The virtual court system allowed lawyers from smaller towns and less elite institutions to have better access to the High Court and Supreme Court which eliminated some entry barriers to cause lawyering.
∙ Collective Legal Action
Various groups of lawyers, law students, and civil society organizations came together to file carefully researched, data-based PILs. Legal collectives, such as the Human Rights Law Network (HRLN) or PUCL, as well as independent lawyers, created ad hoc coalitions during the crisis.
∙ Development of New Voices
Moreover, many young lawyers and recent graduates, amid a COVID-induced dry job market, found meaning in filing PILs on human rights, prison overcrowding, women’s safety in shelters and digital access to education.
6. IS THIS A NEW ERA OF CAUSE LAWYERING:
Cause lawyering is defined as legal work done in support of social movements and justice-oriented causes that extends beyond representation of clients, a term coined by socio-legal scholars like Austin Sarat and Stuart Scheingold. The increase in pro bono PILs resulting from the pandemic aligns with the framework of cause lawyering for several reasons:
∙ Intent and Ideology
The motivations behind many COVID-era PILs were acts of conscience, solidarity, and moral outrage— features of classic cause lawyering.
∙ Structural Change Orientation
Rather than one-off solutions, multiple PILs advocated for structural reform i.e., reforms to the registration of migrant workers, digitalization of health care benefits, equitable vaccine distribution. This represents a shift toward structural, rather than symptomatic, legal intervention.
∙ Engagement with Grassroots
Lawyers actively sought the input of activists, community groups, and field data before submitting PILs, adopting a participatory, movement-oriented approach.
∙ Pro Bono Ethos
Whereas previously we had analyzed PILs driven by NGOs that had institutional support, a number of post COVID PILs were not driven by institutions or media coverage, but were PILs driven by individual lawyers or small collectives that had no funding or media coverage, and were driven by the interest of the public.
7. CHALLENGES AND CRITIQUES:
While the post-COVID PIL wave demonstrates promise, it also raises critical questions: ∙ Sustainability
Will this energy be sustainable after a pandemic? Many pro bono PIL lawyers returned to private practice or corporate practice once the courts reverted to normal after many months.
∙ Judicial Response
Some of the PILs were praised and others were dismissed or considered apathetically by the judiciary. Some High Courts even started to mention that PILs were overstepping on executive power. The response of the judiciary could restrict future cause lawyering.
∙ Access and Equity
Virtual courts offered the promise of increased access despite the digital divide, which was particularly the case in rural areas. Marginalized lawyers and litigants were still unable to participate.
∙ Risk of Dilution
With the anticipation of greater numbers of PILs in the courts, there is some risk of dilution to serious causes. Cause lawyering has to adhere to exacting standards to be considered “real.”
8. FORWARD WAY:
To cultivate this new movement of cause lawyering, we need structural and institutional support:
∙ Pro Bono Institutional Infrastructure
Bar Councils, law societies, and legal chambers need to create pro bono cells with structure, matching lawyers willing to assist public interest causes.
∙ Academic Support
Law schools need to adopt clinical legal education in a formal way and be involved in contributing credits for cause-based legal work. This could shape a generation of socially conscious lawyers.
∙ Judicial Attitudinal Change
Courts must continue to embrace PIL jurisprudence in spirit, and discourage frivolous litigation; courts should appreciate and encourage good faith pro bono work.
∙ Technology and Access to Justice
The hybrid court model must be made permanent, and connectivity and legal aid must improve in remote communities.
9. COLLABORATION:
Law firms are producing an enormous amount of know-how and research to guide their clients in responding to the crisis. Resources are everywhere – on the internet and on each firm’s website – and much of this know-how will be relevant for Pro Bono clients too. NGOs and charities are essentially small businesses with staff they might have to furlough and loans they are obligated to pay back. Much of the time, however, this know-how made for sophisticated business clients is inaccessible to smaller NGOs and charities.
Law firms have worked together during the pandemic in new and innovative ways to develop opportunities so that there isn’t duplication of efforts but instead there is pooling of Pro Bono expertise. Law firms know that it is not helpful to create a memo about the impact of COVID-19 by each individual firm with respect to small charities, instead they can leverage existing know-how and resources from lots of firms so that action can be taken quickly to develop guidance for Pro Bono clients. It is remarkable to see the output of many have worked together when the competition for work is eliminated and the interest is in helping others for free, using our expertise. The Association of Pro Bono Counsel have coordinated the 145 firm and 41 country wide Pro Bono community response to develop an online resource tool to provide access and identify legal issues in accessing this know-how from many NGOs and charities.
10. CONCLUSION:
The explosion of pro bono PILs following the COVID pandemic marks a revival of the legal profession’s moral conscience. Whether this continues – and becomes a true movement of cause lawyering – or dies with the crisis is an empirical question. Regardless, the pandemic has reinvigorated the possibility of lawyering as empathetic, activist and undertaking to promote a lived/politically society that not only has law as a principle but on the ground as reality.
The opportunity is right to recast the role of the lawyer, not just as an agent for the client, but to instigate change.
11. REFERENCES:
∙ Pro Bono in the time of COVID-19
∙ Pro bono services “cannot keep up” with post-Covid demand
