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Explained: Why are lawyers in Maharashtra opposing a move to restart compulsory physical hearings?

Associations representing thousands of lawyers and senior advocates have raised concerns over resuming physical hearings, and have written to Chief Justice Dipankar Datta seeking "to defer the holding of physical courts for the time being". Here's why

Written by Omkar Gokhale , Edited by Explained Desk | Mumbai | Updated: December 1, 2020 1:49:24 pm
Bombay HC, Bombay HC physical hearings, COVID-19, Coronavirus news, Maharashtra Covid update, Indian ExpressThe Bombay High Court. (Express Photo/File)

Last week, the Bombay High Court registry issued a standard operating procedure (SOP) for the resumption of physical hearings at the its principal seat in Mumbai, along with its benches at Aurangabad and Nagpur, from December 1.

Associations representing thousands of lawyers and senior advocates have raised concerns over this, and written to Chief Justice Dipankar Datta seeking “to defer the holding of physical courts for time being, and at the very least allow lawyers the option of appearing virtually should they feel at risk.”

What is the Bombay HC’s decision on hearings?

Through an order issued on November 27, the HC administration through its registrar general had notified lawyers and litigants appearing in person in the court that the Chief Justice had nominated 10 division (two-judge) and 12 single-judge benches to hear matters physically from December 1. It said the hearings would continue on an “experimental basis” till January 10.

The HC administration issued SOPs and said all courts in Maharashtra, except those in Pune, to resume their regular functions in two shifts from December 1.

The SOPs stated that the HC benches taking up matters through physical mode will not entertain any matter through virtual mode, and request for virtual hearing of any matter may therefore not be made.

It said the daily cause list — the list of cases to be taken up — of the courts holding physical hearings should not have more than 50 cases per day. It noted that the lawyers, whose cases are being heard or will be heard immediately after an ongoing hearing, will be allowed inside courtrooms. The rest will be asked to wait outside or in the bar room, in adherence with physical distancing norms.

Why are lawyers opposing the physical hearings?

In a letter written to CJ Datta, nearly 500 lawyers, including former additional solicitor generals, former advocate general and senior lawyers, said, “In the past seven days, Mumbai alone has seen a 24 per cent rise in the active number of Covid-19 cases. In the face of this growth, the risk of transmission of coronavirus in courts to judges, lawyers, court staff, members of registry and clerks is a real threat.”

The lawyers stated that most judges and senior advocates were above the age of 50 with varying co-morbidities, and fall in the category of vulnerable patients at fatal risk should they contract Covid.

“Even younger lawyers and court staff, who may not be at risk themselves, but live with elderly parents and relatives, are at risk of transmitting the disease to someone who could be fatally affected,” they added.

The lawyers further said that since the video-conferencing facility has been in use since March, its continuation will cause no hardship or prejudice to anybody. However, its suspension, they said, would force lawyers to either give up their practice or risk coming to court against their will.

The representation also said that the interaction of persons in courts is difficult to regulate, and with hundreds of matters listed on a daily basis, physical hearings, even in a limited manner, will “exponentially increase human interaction and consequently, the transmission of virus.”

The letter noted, “Physical hearings were suspended in the last week of March, when the numbers of Covid-19 cases in Maharashtra were less than 50 and the same were not resumed in October, when the average total numbers were 60,000. However, physical hearings are sought to be resumed (albeit partially) now when the total numbers are 85,963.”

Migration of lawyers to native places

The representations to CJ Datta also stated that a lot of lawyers practicing in courts in Mumbai had gone back to their native places during this “hard time”. Most of them, who have been able to appear in courts through video-conferencing, will now have to return to Mumbai in pursuance of this order. The sudden influx of lawyers and staff in Mumbai can further have an impact on the increase of coronavirus cases, they said.

Congregation in court corridors and sanitation problems

The lawyers apprehended that those who are waiting for their cases would crowd the “narrow corridors” and the Bar rooms, and it would be extremely difficult to maintain physical distancing norms.

The letter stated, “With a heavy load of cases being taken up by each court, the procedures of sanitation and cleanliness will become impossible to follow. Common bathrooms are one of the super-spreaders of the virus… There are not sufficient toilet facilities available in HC premises even during normal times and it would lead to disastrous consequences.”

Difficulties related to transportation and logistics

The letter written by the Bombay Bar Association (BBA), a body of advocates practicing before the High Court, based on the feedback from lawyers, said that travelling by suburban local trains is restricted to a limited class of passengers, and despite the lawyers being allowed to travel for professional purposes, they can take trains only during non-peak hours and may miss the court timings.

The BBA also highlighted other logistical issues such as office staff and clients not being permitted to travel by local trains, further making the lawyers “completely handicapped”.

The BBA letter requested that physical courts may be reopened in phases, initially allowing only three courts to take up cases, like final hearings, that do not require too many lawyers in the court. “However, if more physical courts are to be added, a hybrid system of physical and virtual courts should be considered,” it said.

How did the other HCs resume hearings during the pandemic? Were they suspended thereafter?

To bolster their request, lawyers referred to decisions taken by other High Courts in the country to reopen their courtrooms. They said they had “tested waters with experimental reopening of courts, only to shut down again, due to the spread of the coronavirus within courts.”

The Delhi High Court had resumed physical hearings and the same had to be suspended in July after a spike in Covid-19 cases in the national capital.

Even the Supreme Court of India had suspended physical hearings for the same reason.

The Jaipur bench of the Rajasthan High Court, in August, had to suspend physical hearings after some staff members tested positive for the disease. The Chief Justice of the Rajasthan HC was also reported to have tested positive thereafter.

The lawyers said that in recent weeks and months, the High Courts of Karnataka, Madras, Patna, Allahabad, Jharkhand, Meghalaya and others had reopened and been forced to shut down due to detection of positive cases.

The lawyers also asked the HC administration to consider the recent Delhi High Court order, which directed, “whilst the physical hearings may be attempted, it must be optional and none can be forced to attend hearings physically.”

In view of this, the letter said, “This creates a one-step forward, two-steps back situation, and only reinforces the message that the highly contagious nature of this disease makes resumption of physical hearings almost impossible to regulate.” 📣 Express Explained is now on Telegram

The administrative committee of the senior judges headed by CJ Datta, along with other stakeholders, including state and central government representatives and members of lawyers’ associations are likely to consider the letters requesting ‘virtual’ or ‘hybrid’ hearings on Tuesday.

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