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A new hybrid: Post-Covid hearings in Delhi HC

Following a plea in the apex court by four advocates, the Delhi High Court was forced to begin a new system of physical and virtual hearings so as to make the work of lawyers easier in coronavirus times.

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By Shaheen Parween

From January 25, the Delhi High Court started a hybrid system of hearings where both physical and virtual hearings will take place simultaneously. This will enable a lawyer to choose if he wants to appear in person or virtually.

According to a circular by the High Court, a lawyer can make a request for virtual hearing in advance to a judge sitting in the Court. Justice Prathiba M Singh was the first judge to introduce this system.

The High Court had earlier issued a notification on January 14, according to which the number of benches holding physical hearings was increased from three to 11. It further made it mandatory for a lawyer to appear physically without having a choice to appear virtually.

This was challenged before the Supreme Court by four lawyers Kartik Nayar, Nancy Roy, Sanchit Jolly and Amit Bhagat. They said the notification was in complete and utter violation of personal as well as fundamental rights of lawyers and other legal persons appearing before courts.

The plea stated:

“The High Court of Delhi has miserably failed to take into consideration the well-being, life, liberty and health of the lawyers, clerks, court staff, the judges, and litigants by compelling them to attend the court hearings in person and thereby has wilfully infringed the fundamental rights guaranteed under Articles 14, 19 & 21 of the Constitution of India.”

They said the resumption of physical hearings would expose lawyers to the risk of Covid-19. There were more than 70,000-80,000 lawyers in the national capital itself, who appear in matters daily, they said. In addition, there were litigants, court staff and other legal and non-legal personnel, and courts and courtrooms would become congested, leading to an increase in the spread of Covid-19.

They said that the directions issued by the High Court, during the initial opening of the courts physically, cannot be applied and adhered to in the present circumstances as it would be impossible to manage triple the number of people in Court. This would aggravate the present scenario of Covid-19, and inadvertently, courts would become the hotspots of coronavirus.

The plea further stated that there still was an alarming rise in the reported cases of Covid-19 in Delhi, with around 15,000-20,000 new cases being reported every day. It said that in no way had the intensity of Covid-19 declined. In fact, the death toll has been repeatedly increasing as new fatalities were reported every day.

With regard to lawyers travelling from outside Delhi for physical hearing, the petitioners said:

“The High Court, by way of the impugned notification failed to take into account and understand the plight of advocates travelling from outside of Delhi for physical hearings, amidst the ongoing pandemic in public conveyances thereby increasing the chances of catching and transmitting the infection and unnecessary exposure to risk of Covid-19, both inside and outside the Court premises and its ramifications on the entire legal community and general public at large.”

It further said that the Court had failed to take into consideration the new UK variant of Covid-19, which reportedly spreads faster and is harder to contain. There had reportedly been more than 100 cases of the mutant variant in India, with more than 20 in the national capital itself. Therefore, the petition said, having a congregation of people in courts at this point of time would be “extremely fatal”.

The petitioners also raised concerns of working and single mothers who were appearing virtually in courts. As even the pre-primary and primary schooling system has shifted to a virtual base, it had compelled the advocates, especially single mothers and fathers, to accommodate their children and their health and educational concerns, while working professionally.

During these unprecedented times, many judges had accepted and accommodated such advocates by giving them the liberty to appear in allotted time slots virtually, thereby taking their offspring’s educational concerns into account. The petition said:

“The health, well-being and other needs arising out of the ongoing pandemic requires to be delved into and accordingly be catered to and therefore issuing such arbitrary directions to force such susceptible persons to appear in person is in utter violation of their fundamental rights.”

It further said that many European nations had reinstated nationwide lockdowns in view of a surge of Covid-19 cases. Global cases have reportedly crossed the 75-million mark, while the fatalities have surged to more than 1.64 million. India being one of the most populated nations, had already contributed a dangerous amount to the toll, and if the present situation was taken lightly, the number of cases and fatalities would quadruple overnight, causing severe detriment to not only the legal profession but the entire nation as well, warned the petition.

It further stated that there were many lawyers, clerical and support staff, judges and litigants who were not only at risk themselves, but were apprehensive of putting their families at risk as they were susceptible and suffer from co-morbidities. This is why they were following the necessary SOPs issued by the government, in addition to staying inside. Therefore, forcing advocates and litigants to appear in person before the court without giving them any other alternative, immediately puts their life, liberty and well-being at risk, thereby infringing on their rightfully guaranteed fundamental rights.

The petition therefore urged for a hybrid system wherein advocates could choose to appear either virtually or in person. The petitioners said that there were numerous senior advocates and advocates with several co-morbidities practising every day through the virtual system, prioritising their health. However, the notification forces them to prioritise their profession over their life, health and well-being.

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It was also stated that over 500 lawyers had signed on a digital form in favour of continuing with virtual hearings and opposed the notification mandating physical hearing without a choice for virtual hearing.

The plea was placed before a Supreme Court bench, comprising Chief Justice of India SA Bobde, and Justices AS Bopanna and V Ramasubramanian, who dismissed the plea after it was informed that a meeting was to be held to reconsider the notification.

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