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This story is from November 29, 2020

Lawyers in Mumbai write to Bombay HC CJ, request choice for video conferencing and physical hearing from Dec 1

Lawyers in Mumbai write to Bombay HC CJ, request choice for video conferencing and physical hearing from Dec 1
Bombay high court. (File photo)
MUMBAI: Lawyers in Mumbai seek an option to be permitted to appear virtually before the Bombay high court from December 1. They point to a 24 percent rise in Covid-19 cases in the city in the last week alone.
A group of 15 lawyers including many senior counsel wrote an “urgent letter’’ to the chief justice Dipankar Datta on Sunday to request a “choice between video conferencing and physical hearing” since the HC has scheduled physical hearing before most of its benches at the principal seat from December 1 for over a month, on an "experimental basis."
The letter referring to a Delhi HC order says it had said whilst physical hearings may be attempted, it must be optional and no one can be forced to attend hearings physically.

The Delhi high court in a judgment on November 24, on submissions of advocate Rahul Ajatshatru in a challenge to a trial court order scheduling a matter for physical hearing, had directed the trial court to take up the suit for consideration through virtual mode as it was “only an application for restoration of the suit.’’
The Delhi HC said in view of the advisories issued by it, “petitioner cannot be asked to appear physically unless the advisory is modified.”
Advocate Ajatshatru had submitted that family members of the petitioner’s counsel “are vulnerable senior citizens and in the present pandemic situation it would not be possible to appear for a physical hearing before the trial court and thus applications were filed to have a virtual hearing.’’

Physical hearings were suspended in the last week of March when the numbers of Covid-19 cases in Maharashtra were less than 50. Physical hearings were not resumed in October when the average total numbers were 60,000.
The letter said, “Partial resumption of physical hearings in some Courts, with parallel hearings over video conferencing in all other Courts, will create immense hardship and confusion for lawyers leading to inefficiencies in the system.”
It added that many lawyers have gone to their native places during the pandemic and their “sudden influx’’ to the city can cause a spurt in cases too, said the letter.
The letter clarified that the lawyers, both senior and junior were “not against the resumption of physical hearings, but only seek the continuation of the option for VC hearings. “
“If there is any fear of confusion, physical and VC hearings can be offered in morning and afternoon sessions separately. By separating physical from virtual hearings, one may avoid any technical issues or logistical problems that may arise,’’ the letter suggested.
Meanwhile the Bombay Bar Association, one of the oldest in India, is holding an urgent meeting at 3.45 meeting to also discuss the issue on concerns expressed by members.
The signatories to the letter, senior counsel including V A Thorat, Shirish Gupte, Prasad Dhakephalkar, Amit Desai, Ashok Mundergi, Rajeev Patil, Rahiv Chavan, Manoj Mohite, Prasad Dani, Beni Chaterjee and former ASG Rajendra Raghuvanshi, Subodh Desai and Yug Chaudhary, expressed their “deep appreciation and gratitude’’ to the Chief Justice Datta for his “herculean effort” made by him and the entire Court to ensure the smooth functioning of the Court over the past 7 months, at great risk to their own selves.
“We have been forced to approach your Lordship due to the recent Office Order dated 27.11.2020 issued by the Registrar General of Hon’ble High Court to resume compulsory physical hearings until 10.01.2021 on an experimental basis with no option of virtual hearings,’’ they wrote adding, “COVID-19 continues to grow and infect persons at a rapid pace across India, new positive cases exceeding the 43,000 per day mark as on 26.11.2020. In Maharashtra, the total number of new cases recorded on 26.11.2020 stood at 6,406 with 1,147 new cases in Mumbai city. In the past seven days Mumbai alone has seen a 24% rise in the active number of Covid 19 cases. After a steady decline of cases during October, there has been a noticeable resurgence in the number of new cases in November, with the 7-day average of new positive cases exceeding by 3000 cases as on 25.11.2020. The total number of active covid cases in Maharashtra as on 26.11.2020 is 85,963.”
They expressed concern over a resurgence of cases and how other countries are countering the spread again.
“This resurgence or a second wave has been seen across the country with the National Capital recording over 8000 cases daily after recording an average of 4000 cases a day in October. Other countries such as the United Kingdom, France, Spain, Germany, Italy and many other in Europe have also been forced to go into another lockdown after an unregulated opening of public spaces and institutions.”
The lawyers, staff, Judges, their staff too who may fall in the vulnerable-age category may be affected they said.
“In the face of this growth in the number of cases, the risk of transmission of the virus in Courts to judges, lawyers, Court staff, members of the Registry, clerks, etc. is a real threat. Most Judges and senior lawyers who practise in this Court are above the age of 50 with varying co-morbidities and fall in the category of vulnerable patients at fatal risk should they contract Covid-19,’’ the letter noted.
It added, “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. As you know, in Mumbai, the extreme lack of space leaves no possibility of maintaining social distancing at home and offices. Whilst the wearing of masks serves as protection, contact for over 15 minutes at close proximity with a Covid positive patient is sufficient to transmit the disease even if both parties are wearing masks. Further increasingly the medical community is acknowledging the existence of “long covid” which has led to otherwise young and healthy patients remaining bedridden for three-four months at a stretch with permanent damage to organs such as the heart and brain. The devastating impact of the virus and its lasting after-effects are still consistently being discovered by the medical community.”
The Order states that only arguing parties will be allowed into the courtroom and others will be required to wait in the corridor. But the lawyers say, “Having two counsels and a clerk for 49 matters wait in the narrow corridors of the High Court would amount to putting lawyers and staff at great risk.”
“In fact, many other High Courts in India have tested the waters with experimental reopening of Courts, only to shut down again, due to the spread of the virus within Courts,’’ they point out.
Whilst the Delhi High Court had also resumed physical hearings the same had to be suspended due to the exponential spike of Covid 19 cases in the capital which continues unabated.
Even the Supreme Court has suspended physical hearings for the same reason. On 17.08.2020, the hearing in the Jaipur Bench of the Rajasthan High Court had to be suspended after some staff tested positive for the COVID-19 virus.
In recent weeks and months, the high courts of Karnataka, Chennai, Patna, Allahabad, Jharkhand, Meghalaya, and others, have reopened and been forced to shut down again due to the detection of positive cases, the letter said to argue their suggestion at keeping the option open in Mumbai.
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About the Author
Swati Deshpande

Swati Deshpande is Senior editor at The Times of India, Mumbai, where she has been covering courts for over a decade. She is passionate about law and works towards enlightening people about their statutory, legal and fundamental rights. She makes it her job to decipher for the public the truth, be it in an intricate civil dispute or in a gruesome criminal case.

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