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Seeing the distressing condition of lawyers without work, a panel of seven judges has proposed holding physical hearings in at least three of its 15 benches in two weeks’ time while continuing with virtual courts.

By Preeti Ahluwalia

In the wake of Covid-19, all courts have remained shut for nearly five months and have been holding hearings through video conferencing. Although lockdown restrictions were eased from June onwards, courts have continued to hold only virtual hearings. However, senior advocate Manan Kumar Mishra, chairman of the Bar Council of India, conveyed the anguish of legal professionals who have suffered monetarily and professionally during this time. Bar leaders have been demanding the resumption of physical hearings as soon as possible while continuing with virtual court hearings.

Many lawyers are unable to cope with the virtual court system as some cases are complex, require detailed arguments and involve voluminous documents. The president of the Supreme Court Advocates-on-Record Association (SCAORA), Shivaji Jadhav, said that when the entire country is in an unlock phase, why should the judicial system continue with restricted functioning. As of now, only schools and cinema halls are shut. Even government offices have opened after taking the necessary precautions. Even litigants are suffering.

Seeing all this, a seven-judges panel headed by Justice NV Ramana met leaders such as Mishra, Supreme Court Bar Association President (SCBA) Dushyant Dave and Jadhav on the issue of resumption of physical hearings in the apex court. The panel also consulted senior medical experts who advised taking a low-risk approach and begin slow resumption of physical hearings keeping safety in mind. This is because there may be an increase in coronavirus cases because of all those attending the Court—judges, lawyers and clients. Also, with migrant workers returning to cities, corona cases may increase. Moreover, most of the judges are over 60 and it would be risky to resume physical hearings for them. Therefore, the medical experts advised against resumption of physical hearings before September 1, 2020, against the plea by Dave and Jadhav who pressed for immediate start of physical hearings. Later, Jadhav said that the judges’ committee met Bar leaders and was seriously considering starting at least three physical courts in about two weeks’ time.

Sources said that the judges’ panel recommended to Chief Justice of India (CJI) SA Bobde that limited physical hearings in three courtrooms could resume only for final matters. However, the CJI has left it to the committee to decide the date for resumption of physical hearings.

The panel told leaders of the SCBA and SCAORA that at least two or three courts may start holding physical hearings on a trial basis and this will be in addition to virtual court hearings. “I may also add that the physical courts are in addition to virtual courts and people would have the option to do virtual hearing as well. Matters from the final hearing list published before the lockdown would only be listed before the physical courts,” the SCAORA president said. The judges’ committee mentioned that the physical hearings would be held on Tuesday, Wednesday and Thursday since fresh matters are taken up on Monday and Friday, resulting in overcrowding in the courtrooms. This has not been accepted by the lawyers who said that “this could pose a risk to them as well as the court staff”, a senior court registry official said.

The committee’s recommendation is believed to serve as a cue for High Courts and trial courts to decide on resumption of physical hearings. This will provide nearly 15 lakh advocates across the country their sole avenue of earning. Therefore, on August 15, 2020, the Delhi High Court said it may resume physical on-site functioning in all seven of its district courts, as well as the High Court itself, on a rotational basis from September 1. The High Court also mentioned that to begin with, on an experimental basis, only one-fourth of a court’s total capacity, in terms of benches and judges, might resume functioning. The administrative and general supervision committee of the High Court headed by Chief Justice DN Patel directed the committee to prepare a graded action plan for gradual opening of on-site courts from September 1.

SCAORA further said that to make sure social distancing is followed during open-court hearings, the apex court’s registry would take necessary measures to prepare for physical functioning and changes will be made to the interiors of courtrooms. The committee was informed that to maintain safe social distancing between two courtrooms, one courtroom each in the three wings could be identified for physical hearings. Sources said that it could take up to 48 hours to get each courtroom ready with proper sanitisation, ventilation, installation of exhaust fans and glass partitions. In addition, extra seats will be removed to accommodate only two lawyers in a case. No junior counsel or lawyer’s clerk will be permitted inside the courtroom.

The medical experts also cautioned against long working hours for open courts, stating that masks should not be worn for over three hours. Based on the experts’ opinion, the committee decided to hold open-court hearings for half a day between 10:30 am and 1:30 pm. Further, to avoid congregation in corridors, the courtrooms will be earmarked in such a way that they do not fall in the same zone.

However, over 220 advocates in the Supreme Court have written to the seven-judge committee saying it was too early to safely resume physical court hearings in the apex court. They include Advocates-on-Record Anil Sharma, Pradeep Kumar Gupta and Sriram Parakkat who along with 223 others wrote that those getting infected with the virus had increased to about 67,000 per day as on August 12, 2020, with Delhi showing an increase by about 1,100 persons. The number of infected persons is expected to increase every day and may reach 1,00,000 in the next couple of days. The resumption of physical hearings would only increase the risk of infection in courtrooms. They further mentioned the potential psychological, social and economic costs in terms of depression, getting ostracised and financial overruns of treatment with the fear of death looming large over the infected person.

Further, a circular of the Supreme Court on August 7, 2020, read: “Taking into account requests received, and in partial modification of terms of circular dated May 21, 2020, the Competent Authority has been pleased to revise the timings for the opening of Lawyers’ Chamber Blocks in the Supreme Court premises from 09:30 am to 05:00 pm (Monday to Friday, except holidays) instead of 10 am to 4 pm (Monday to Friday, except holidays).”

The apex court is aware of the plight of many lawyers. Not only do the legal professionals suffer, but litigants too. The committee is constantly reviewing the Covid situation and following advice from medical experts. In the meanwhile, the committee has asked the Bar leaders to interact with the secretary-general of the Court about any technical issues faced by lawyers while participating in virtual court hearings.

—The writer is an advocate in the Delhi High Court

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