'We See The Gravity Of Problem' : Supreme Court To Consider Tomorrow Pleas Against Physical Hearing In Delhi Courts

[Update on Janaury 19 : 'We Trust That The Chief Justice Of Delhi HC Will Do The Needful'; SC Disposes Of As Withdrawn Lawyers' Pleas Against Physical Hearings In Delhi]

"We see the gravity of the problem", remarked the Chief Justice of India on Tuesday while considering a petition filed by a group of advocates challenging the decision of the Delhi High Court to resume physical hearing in certain courts (Karthik Nayar and others v Hon'ble High Court of Delhi).

The CJI also said that the ordinarily the Supreme Court will not interfere with the administrative decisions taken by a Chief Justice of the High Court. Therefore, the CJI initially suggested that the petitioners should go before the Delhi High Court itself challenging the decision.

"We see the gravity of the problem. Primarily, we do not interfere with the administrative decisions of the Chief Justices. We will ask you to go back to the High Court and address your grievances there", CJI SA Bobde said.

In response, Senior Advocate Kapil Sibal submitted that there was a "clear and present danger" involved as lawyers will be exposing themselves to the COVID-19 pandemic. To take away the option of virtual hearings completely, and to state that no adjournments will be granted in physical hearings was unreasonable in the present circumstances, Sibal submitted.

"We understand", the CJI replied.

Sibal urged the Court to pass an order stating that physical hearings are optional. The option of virtual mode should be kept available during the pendency of the decision by the High Court, if the Supreme Court is relegating the parties to the HC, Sibal submitted.

At this juncture, the CJI-led bench said that the matter will be considered tomorrow.

Senior Advocate Anjana Prakash told the bench that a group of women lawyers have filed a petition challenging the resumption of physical hearing and requested the bench to tag the said petition also tomorrow.

The bench comprising Chief Justice of India SA Bobde, Justices L Nageswara Rao and Vineet Saran considered the petition against the Delhi High Court's decision to resume large-scale physical hearing before itself and subordinate courts in Delhi with effect from January 18, without giving a choice to lawyers to appear through virtual mode.

Advoates Kartik Nayar, Nancy Roy, Sanchit Jolly and Amit Bhagat have challenged the order of the Registrar General of the Delhi High Court dated 14.01.2021 which has instructed the Principal District & Sessions Judges and the Principal Judge, Family Court to start physical hearings on alternate days basis from 18.01.2020. The Court shall hear matters through video conferencing on non physical days.

Advocates Amrita Sharma,Saumya Tandon,Padma Priya,Asmita Narula, Shivani Luthra who are practicing women advocates before the High Court of Delhi as well as the District Courts in Delhi have also moved Supreme Court challenging Impugned office order in view of the fact they compel the advocates, court staff, litigants and other persons appearing before the Courts to put at risk their own, as well as their family members' health in order to earn livelihood.

The plea advances that the impugned Public Notification dated 14.01.2021, issued by the High Court of Delhi, is in complete and utter violation of personal as well as fundamental rights of the lawyers and other legal persons appearing before the Courts- "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, support 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"

It is urged that there is still alarming rise in the reported cases of Covid-19 in the national Capital, around 15,000-20,000 new cases are still being reported every-day and in no way the intensity of spread of Covid-19 has declined in any manner whatsoever. In fact, the death toll has been repeatedly increasing as new fatalities are reported every-day.

"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. The Hon'ble High Court of Delhi has failed to take into consideration the new strain, mutant UK variant of Covid-19, which reportedly spreads much faster and therefore increases the number of cases significantly and is much harder to contain in comparison to the ongoing Covid-19. Reportedly, there have been more than 100 cases of the mutant variant of Covid-19 in India, with more than 20 in the national capital itself, therefore having a congregation of people in courts at this point of time would be extremely fatal", it is urged.

The petition states that the High Court of Delhi has failed to take into consideration the present situation caused due to the new strain world-wide and countries like the UK, among many European nations have reinstated nation-wide lockdowns in view of a surge of Covid-19 cases in the past few months inclusive of the new strains. The global coronavirus cases have reportedly already crossed 75 million mark, while the fatalities have surged more than 1.64 million world-wide. India being one of the most populated nation, has already contributed a dangerous amount hereto and if the present situation in India is taken lightly in any manner, the number of cases and fatalities would quadruple overnight causing severe detriment to not only our profession but the entire nation as a whole.

"The Court has failed to take into account that the Covid-19 pandemic is still prevalent in full force and there are still many citizens who are at high risks and despite following all the precautionary safety directions, are waiting desperately to get vaccinated in order to resume normal functioning of their respective lives, which includes numerous advocates and litigants, while putting their regular life on hold. Vide this notification the Hon'ble Court has, in complete disregard to the above-said situations, issued such an arbitrary and erroneous order, which not only completely goes against public health and safety but is vehemently bad in law", it is pressed.

It is indicated that approximately there are more than 70,000-80,000 lawyers in the national capital itself, who appear in matters daily, all over the capital territory. The Court has failed to take into consideration that when the matters are being taken up on daily basis and the advocates from all of over the territory appear in person, for their respective matters in addition to the litigants, court staff and other legal/non-legal personnel, the capacity at which the courts and the courtrooms would become occupied and congested is beyond imagination and would in fact lead to increase in the spread of Covid- 19 immeasurably. The directions/SOP issued by the Hon'ble 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 the court, which would result in extremely high chances of spread of Covid-19 and aggravating the present scenario and inadvertently the courts would become the hotspots of coronavirus.

"The Hon'ble Court must introduce a hybrid system wherein the advocates can choose to appear either virtually or in person, in consonance with their and their families' health and well-being concerns. There are numerous senior advocates and advocates with several co-morbidities practising everyday through the virtual system, prioritising their health. However, the impugned notification forces the advocates to prioritize their profession over their life, health, and well-being. In fact, it is pertinent to note that this Hon'ble Court had taken into account the present situation and in view of the same, was in disagreement with the idea of resuming physical hearings and did not want to be the cause for increase in fatalities due to the spread of the Covid-19", it is said.

It is urged that the concerns of working/single mothers who are working from home, appearing virtually throughout the courts, as even the pre-primary and primary schooling system has shifted to virtual base and therefore compels the advocates, especially single mothers/fathers to accommodate their children and their health and educational concerns, while working professionally. During these unprecedented times, many judges during the ongoing pandemic have accepted and accommodated such advocates by giving them the liberty to appear in allotted timeslots virtually thereby taking their offspring's educational concerns well into account. 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.

"The Hon'ble High Court has miserably failed to take into account that it is nearly impossible to follow protocol and the standard SOPs as issued by the Hon'ble High Court, in the subordinate courts wherein the court rooms are too congested and function without having any glass shields/panels to separate the judges and the advocates and/or the advocates of each side from getting infected. It has not been appreciated by the Hon'ble High Court that if the subordinate courts would resume physical hearings at full force, the congregation would result in extremely high fatalities and cases and would potentially jeopardize the lives of many", it is said.

It is stressed that the High Court has failed to appreciate the fact that many High Courts such as that of Rajasthan & Madras have had to quickly shut down the functioning of the Courts after prematurely resuming the physical resumption of the Courts, as it led to a significant number of cases in their respective states thereby making the situation of the country worse.