BBA Writes To Bombay High Court Chief Justice Requesting Him To Reconsider Order To Resume Physical Hearing

Referring to the Office Order dated 27.11.2020 of the Bombay High Court, pursuant to which physical presence in the Court has been made mandatory, the Bombay Bar Association ("BBA") on Sunday (29^th November) sent a representation to the Chief Justice, High Court of Bombay to request him to modify the Office Order dated 27.11.2020.

In the representation, it has been stated that Bombay Bar Association ("BBA") has received feedback and responses from a large number of its members "expressing grave concern on the making of physical appearances mandatory in so many Courts in the given cirumstances of the COVID-19 pandemic."

The Representation sent to the Chief Justice has considered the input received by its members as a meeting of the Standing Committee of BBA was held on 29 November 2020 and thereafter, the instant representation has been sent, pursuant to the Resolution passed at the said meeting.

BBA has stated that it "understands and appreciates the need for a gradual commencement of the physical Courts. BBA also relates and associates itself to the difficulties faced by various lawyers due to the non-commencement of physical Courts."

However, the representation further states that the Standing Committee of BBA "feels that in the current situation of COVID-19, the opening of physical Courts should be done gradually and in a phase-wise manner - initially in a hybrid form, giving an option of appearing through the virtual platform if members are unable to appear physically."

Importantly, it states,

"The commencement of physical hearing and the mandatory requirement of physical appearances in such a large number of Courts without an option for appearance in the virtual platform is likely to pose a serious threat to the lives and health of lawyers, their staff, the clients and consequently their families."

Concerns raised by BBA (as mentioned in the Representation)

* The risk of transmission of the virus in Courts to judges, lawyers, court staff, members of the Registry, clerks, etc., is a real threat. As is the nature of this virus, persons attending courts will carry the same to their family members.

* Most Judges and senior lawyers who practice in this Court are above the age of 50 with varying comorbidities and fall in the category of vulnerable patients at fatal risk should they contract Covid 19.

* Even younger lawyers and court staff who may not be at risk themselves, but live with elderly parents or young children under the age of 10 years, are at risk of transmitting the disease to someone who could be fatally affected.

* The interaction of persons in Courts is difficult to regulate. In terms of the present Office Order, physical hearings, even in a limited manner, will exponentially increase human interaction and consequently, the transmission of the virus.

* The Order states that only arguing parties will be allowed into the courtroom, and others will be required to wait outside the Court room/Bar room. This may restrict the number of people inside the Courtroom.

* This would also result in young junior lawyers losing their briefs where they are appearing along with a senior. In given circumstances this will cause immense hardship to junior lawyers.

* With such a heavy load of cases being taken up by each court, the procedures of sanitisation and cleanliness will become impossible to follow.

Importantly, the Representation cites the examples of the Delhi High Court, Jaipur Bench of the Rajasthan High Court, the High Courts of Karnataka, Chennai Bench of Madras High Court, Patna High Court, Allahabad HC, Jharkhand HC, Meghalaya HC, Indore Bench of the Madhya Pradesh High Court, to showcase that difficulties have been faced by the HCs as they decided to resume physical hearing.

The Representation states that the Delhi High Court has passed an Order dated 24.11.2020 in VM Singh v Madam Lal Mangotra & Ors directing that "whilst physical hearings may be attempted, it must be optional and no one can be forced to attend hearings physically."

• Further BBA has requested the Chief Justice of the Bombay High Court to modify the Office Order dated 27.11.2020 as under:

  (i) At present, three additional physical courts be added to the physical courts which have been operating till 27 November 2020. These additional courts may hear matters which do not entail too many lawyers attending the Court, such as Courts hearing, final hearing of Single Judge Writ Petitons under Articles 226 and 227 of the Indian Constitution, final hearing of Appeals from Order, First Appeals, Second Appeals etc.

  (ii) In the alternative, a hybrid system of physical and virtual Courts (as is being operated in the Court of the Hon'ble Chief Justice) be provided in the newly added physical courts as per the office order dated 27 November 2020, giving an option to those lawyers who do not seek to attend the court physically to make an appearance virtually. Till such time as technical arrangement for such hybrid hearing can be made, since the facility for video conferencing already exists and has been successfully used for many months, which may be continued till at least 31 December 2020, after which it may be reassessed/reconsidered.

  Also, BBA has stated in its representation that the technical difficulties faced in operating hybrid hearings "have been successfully overcome in several High Courts like Delhi and Rajasthan."

  In this regard, BBA has proposed that it would seek assistance of technical agencies to aid the technical team of the Court in setting up such an arrangement for hybrid hearings so that such Courts can operate seamlessly.

  Lastly, BBA has also clarified its intention "to provide certain portals in the Bar Association Room and also in the Bar Library to enable lawyers who do not have the technical wherewithal, to make appearances through the virtual platform."