Maharashtra courts to resume work but challenges remain: Access to virtual hearing & lack of infrastructure

Since the lockdown was imposed in March, the Bombay High Court and trial courts in Maharashtra had been hearing only urgent matters. While the HC functioned through e-filing, uploading of scanned documents for parties, judges and through video conferencing, subordinate courts functioned with limited staff. With a majority of the prisoners in the state being undertrials, the trial courts were swamped with bail applications.

Starting Monday, while subordinate courts in non-red zone areas will function with 50 per cent staff, in Mumbai and other red zones districts, the courts will function with 15 per cent strength for four hours daily.

“We have also requested for video conferencing facility to be set up in three courts in Mumbai for lawyers who cannot access it on their phones due to lack of technological knowhow or other reasons,” said lawyer Sudeep Pasbola, a member of the Bar Council of Maharashtra and Goa.

He added that the major challenge will be conducting trials that require witnesses to depose and evidence to be recorded in the presence of the accused. In cases where undertrials are in jail pending trial, like Sheena Bora murder trial accused Indrani Mukerjea and Sanjeev Khanna, this delay could mean longer incarceration.

Last month, six senior counsels had urged the HC to explore making the use of technology to resume sitting at full strength while maintaining that the court may not be able to deal with the increasing caseload while it continues to conduct hearings in a restricted manner.

They had stated that as on June 30, 2019, nearly 4.5 lakh cases were pending before HC, across all its benches. The advocates had added: “Further, between 2 March 2020 and 20 March 2020, 1,256 cases were filed only on the original side (which refers to civil cases from Mumbai’s administrative limits), that is, approximately 90 cases per day were filed. On this basis, it is safe to assume that even if normalcy be restored by 30 June 2020, which is most unlikely, approximately 6,700 fresh cases (that were held back during the lockdown) will be filed on resumption.”

Since Friday, the HC has been working in two batches a day to hear urgent and regular cases pending for admission.

Similarly, during the lockdown, family courts had received pleas of non-custodian parents to access their children via video conferencing, owing to restrictions on travel and risk in physical meetings. The challenge going forward will be to find a way to make remote hearings work in sensitive cases involving children and domestic disputes.

“In this period, the courts have heard mutual consent matters with couples going through the mandatory counselling through video conference. Usually, children can meet their non-custodian parents in child-friendly complex within the family court premises, which has been closed. Even if virtual courtrooms are set up, these aspects may not be able to replace physical hearings,” said family court lawyer Kranti Sathe. According to the National Judicial Data Grid, over 41,000 cases are pending in family courts in the state.

Lawyer Sonam Chandwani of KS Legal said that while the judiciary has limited its functioning to urgent matters in restricted manner, it has not clarified as to what encompasses an urgent matter. “Alarmingly, regular bail and habeas corpus petitions do not find mention in the list of urgent matters, despite the loss of liberty attached. Further, the number of matters to be heard remains to be arbitrary with no fixed limit for the same,” she said.

Lawyers practicing in labour courts also said that since they were not working during the lockdown, complaints are expected to rise when they resume.

Similarly, as consumer forums, Debt Recovery Tribunals and National Company Law Tribunals are not functioning with their full strength, several people, firms and financial organisations are facing difficulties in getting issues like claims and compensation resolved.

Thane resident Varun Saykhedkar had booked air tickets and a resort in Maldives through a travel agent. He had to cancel the bookings in view of the lockdown but did not receive a full refund since the agent deducted Rs 30,000. However, he later came to know that the resort did not charge any cancellation fees. “Unfortunately, my client was unable to file a complaint for recovery before the district consumer forum, which was closed,” advocate Shubham Misar said.