The Bombay High Court on Friday while hearing a batch of PILs and intervention applications that initially sought inclusion of lawyers into the list of essentials services observed that the State must not be ignorant that access to justice is now recognised as a Fundamental Right and advocates and their staff constitute an integral part of the entire system, which is dedicated to "delivery of justice".
Division bench of Chief Justice Dipankar Datta and Justice Sarang Kotwal expressed hope and trust that the concerns expressed by the aggrieved petitioners and parties seeking to intervene would be given due consideration and directed the State government to submit its order regarding representation made by petitioners seeking for directions to exempt lawyers and their staff from lockdown restrictions.
Although, another bench of the High Court in an order dated July 10, had rejected the said PIL filed by advocate Chirag Chanani and observed that inclusion of a particular category of persons within "essential services" is within the exclusive domain of the State Legislature and that no mandatory direction, much less any direction, can be issued to the State Legislature to categorize advocates and their staff as providing "essential services".
However, the co-ordinate bench later noticed that in the said order, it was noted that the Additional Public Prosecutor appearing for the State, on instructions, had submitted that the respondents were ready to consider the grievances raised in the writ petition. Considering such submission the coordinate bench granted liberty to the petitioner to file a comprehensive representation before the State Government and the State was left free to consider such representation in accordance with law, the rejection of the writ petition notwithstanding.
In the course of hearing of these PIL petitions and interim applications for intervention, Court was informed that a representation had indeed been filed by the aforesaid petitioner before the State, availing the liberty granted by the order dated July 10, 2020, but no decision has yet been taken.
The bench headed by the Chief Justice observed that lawyers were facing difficulties as physical filing has been allowed by the High Court but due to lockdown restrictions, train services are not available to them and as not all of them have private vehicles, it is particularly difficult-
"Having regard to the present crises that the nation is facing owing to the pandemic, Court functioning through physical hearings is under suspension in Mumbai although virtual hearings are taking place. In some of the Courts, physical hearings are being conducted in a very limited manner. The High Court, while conducting hearings through the virtual platform only, has permitted physical filings. The Western Railway and the Central Railway are operating limited train services but it is open to only those persons having passes issued by the appropriate department of the Government who can avail the same at the moment.
Advocates and their staff are not presently being allowed to avail train services. Diasbled thereby, a major section of the advocates have been precluded from participating in whatever physical hearings that are being conducted and in assisting the Courts. It is also asserted on behalf of the advocates that not all of them have personal cars and, thus, commuting to the Courts in Mumbai is a big problem for them. These are some of the concerns expressed in this group of writ petitions as well as interim applications, whereby similar relief is sought for as in Criminal Writ Petition."
The bench said-
"Having regard to the decision of the coordinate Bench referred to above on such writ petition, we are of the considered opinion that the State ought to have decided the representation in accordance with law. Unfortunately, the decision of the State is yet to see the light of the day."
Additional Solicitor General Anil Singh submitted that presently, 353 out of 1774 trains (as per normal schedule) are being operated by the Central Railway whereas, 150 out of 1365 trains (as per normal schedule) are being operated by the Western Railway. Such trains are halting at limited stations and carry such passengers who have passes to travel. The State has been requested by the Railways to identify "essential services" for the purpose of augmenting train services but the State is yet to respond, ASG Singh told the Court.
Finally, the bench noted-
"Bearing these facts and circumstances in mind, we are of the considered opinion that the State must apply its mind and take an informed decision with regard to the concerns voiced by the advocates as well as their staff. The State must not be ignorant that access to justice is now recognised as a Fundamental Right and advocates and their staff constitute an integral part of the entire system, which is dedicated to "delivery of justice". We hope and trust that the concerns expressed by the aggrieved petitioners and parties seeking to intervene would be given due consideration and an appropriate decision taken at the appropriate level, in the light of the proposal of the Railways. For this purpose, all representations pending before the State may be taken into consideration while it proceeds to decide the matter in terms of this order. The resultant order shall be placed before us on Friday next (August 7, 2020).
The next date of hearing is August 7.
Case Number: PIL-CJ-LD-VC-33 OF 2020
Case Name: Chirag Chanai & Ors. Vs Union Of India & Ors.
Coram: Chief Justice Dipankar Datta and Justice Sarang Kotwal
Counsel: Adv Shyam Dewani for Petitioners, Advocate General of Maharashtra AA Kumbhakoni for the State, Additional Solicitor General Anil Singh for the Union Of India, Adv Yamuna Parekh For MCGM, Adv Uday Warunjikar for the Intervenors