'We Understand The Concerns; But Courts Need To Open' : Supreme Court On Plea Seeking Virtual Hearing Option For Women Lawyers During Pregnancy

A Bench of Justices LN Rao and BR Gavai, while issuing notice, observed that they understood the concerns of women lawyers but added that the Courts have to revert to full physical hearing, as virtual hearing can only be seen as an exceptional measure.

Senior Advocate V Giri appearing for the petitioners pointed out that the problem is not an issue particular to the petitioner but is in fact a problem faced by all women. The Bench pointed out that courts must be opened up and issues like these must be treated as an exception. The Bench issued notice in the matter and directed that it be heard with petitions seeking the declaration of virtual hearing as a fundamental right.

Full Courtroom Exchange

Justice Rao: "We will hear this along with the other matter about virtual right being a fundamental right of lawyers as well as litigants. Don't mix up rights. Your right of reproduction, right to become pregnant have nothing to do with virtual hearing. This court has been functioning for the past 70 years without any problem"

Senior Advocate Giri submitted that this issue needed consideration as "times are changing".

To which Justice LN Rao responded:

"Once we start functioning physically, then we can definitely take advantage of this technology and make exceptions….The point you are raising in this case is an exception but if we start accepting these exceptions there will be no end! There are people who are saying who are saying all lawyers above age of 65 years should be allowed to argue from their homes, there are others who say people who have comorbidities should be allowed, others are saying because of smog in Delhi and the lawyers are not permitted to enter into courts and are standing outside..so that will give rise to problems in their lungs so they should be permitted to sit in their offices and argue. There is no end to this exercise!"

"We will think about all these exceptions later but I am sure that you agree that courts need to start functioning. The entire world is up and running," Justice Rao continued.

Giri submitted that he agreed that courts need to start functioning but the present matter dealt with an exception. He sought permission to issue notice to all High Courts

Justice Gavai intervened to say: "Mr. Giri, if we accept your plea then teachers will file a petition that we should be permitted to teach virtually. You can't have a separate class of vires having a special treatment.

Giri pointed out that Teachers do get the benefit of the Maternity Benefits Act.

Justice Rao: "They get the benefit but they don't teach from home..they get leave."

Giri: "We don't get leave from anywhere..that is the problem for women lawyers."

Justice Rao: "We appreciate that..we have taken steps in this regard..there is a creche here for working women including lawyers..we are alive to these situation for working women"

Giri pointed out that for working women, during COVID times, there is a special danger. He submitted that the Court can consider carving out a limited exception relating to a category maybe during COVID times for a temporary problem.

Justice Gavai quipped: "For 70 years there was no problem?"

Giri: "There was a problem for many of them..many had to stop practice also. Times are changing.."

Justice Rao:"It is not stopping practice..it is just taking an off for a few weeks."

Giri: "Not all offices are that charitable to permit a 6 months hiatus and then permit her to come back. Secondly, some might be having an independent practice."

Justice Rao: "We know that. We just wanted to ask you, before COVID came what was happening?"

Giri: "There was a genuine issue...I am trying to bring this to your Lordships notice on account of the novel manner in which Courts have been addressing this issue due to the Pandemic. Not otherwise My Lord"

Justice Rao: "And now pandemic is on the wane, markets are full, buses are full, theaters have opened..we heard yesterday that the T20 Match with New Zealand and India are going to play and stadiums are going to be open."

Again, Justice Rao stressed that the Courts were aware of the problems faced by women lawyers: He added: "It's not as if we have no concern for this situation but we want the court to open up and thereafter we can think of exceptions."

The Bench issued notice in the matter and directed that it be heard along with the other petition dealing with virtual hearings being a fundamental right of lawyers and litigants.

Senior Advocate V.Giri argued in the matter. The petition is drawn by Advocate(s) Setu Niket and Esha Mazumdar and filed by Advocate on Record Priyanjali Singh.

In the petition it was argued in the petition that Right to Pregnancy is recognised as a Fundamental Right under Article 21 of the Constitution of India and since right to pregnancy is a fundamental right every effort ought to be made to see that it the fundamental right is not violated only because a woman is constrained to choose between pregnancy and her career.

"When a woman choses pregnancy, it is a choice exercised under Articles 14, 15, 16, 19 and 21 of the Constitution of India. It is submitted that having to choose between her profession and exercising her right under the Constitution of India would be nothing but travesty of justice. This choice is not voluntary as childbearing mothers are constrained to bring their children to courts as they may not have requisite resources to ensure oversight of children," the petition stated.

The petitioner has also stated that research has established that many working women lawyers are compelled to quit active practice during pregnancy since it is not possible for women lawyers to travel long distances and use the existing physical infrastructure in courts across the country to practice. In this regards it has been submitted that since the benefits under Maternity Benefit Act ("Act") are also not available to independent practicing professionals such as lawyers, therefore, the option of virtual hearing mode (hybrid hearing) be extended to women lawyers during their pregnancy and thereafter as is consistent with the period provided under the Act, so that they do not have to quit practice

Case Title: Esha Mazumdar v Union of India and Ors.

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