'Resumption Of Physical Hearings Affect Women Lawyers More Adversely' : Women Lawyers Move Supreme Court Against Delhi HC Decision To Start Physical Functioning

The Petitioners 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 submitted that he Impugned office order deserve to be quashed 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 said notification unfairly compels the said persons to choose between the health, well-being, life and liberty of the lawyers, clerks, court staff, support staff, the judges, litigants and the families of all such persons on the one part and the right to carry on their respective professions / trade on the other, by compelling them to attend the court hearings in person. As such, the Impugned office order have the direct consequence of infringing the fundamental rights guaranteed under Articles 14, 19 & 21 of the Constitution of India".

It is submitted that are deeply aggrieved by the said decision in as much as there is no provision made in the Impugned office order to ensure that those litigants who cannot be represented in physical courts by their advocates could either request for virtual hearing or participate in physical court using video-conferencing", urges the plea.

It is advanced that the Impugned office orders fail to take into consideration the fact that advocates cannot effectively represent their clients in virtual hearings while being present in the Physical court simultaneously. Furthermore, by failing to provide any option to the litigant/lawyers to request for virtual hearing in matters listed before physical court or providing an option to join physical court by video conferencing, the Impugned office order impinges upon the right to access to justice of the litigants and the right to life and livelihood of the advocates.

"As a matter of fact there are a large number of lawyers aged 50 and above; there are those suffering from co-morbidities and other health related issues and there are also those who have young or vulnerable family members living with them, all of whom shall be put to grave risk in the event the physical hearings by the High Court of Delhi and the District Courts in Delhi as sought to be mandated by the Impugned office order. Advocates have been effectively discharging their professional duties by representing their clients before the Virtual Court using existing video conferencing facilities while working from the safety of their homes", it is submitted.

Furthermore, it is argued that there are women and men lawyers, including the present petitioners, having young children doing home schooling/virtual schooling and due to the current system of virtual hearing in courts they have been able to discharge their professional duties towards their client even while taking care of their children/minors. If the Impugned office order are given effect to without the option of virtual hearing, then such lawyers shall be constrained to choose between their professional duties and taking care of their young children, or worse be constrained to expose themselves, their children as well as vulnerable members of their families to Covid-19 as the Impugned office order leave them with no alternative.

"The Impugned office order are further discriminatory as regards individuals such as pregnant women, nursing mothers, mothers of young children, persons with comorbidities etc. most of whom fall within the categories of persons excepted from the vaccination drive. As such, the undue direct exposure that may be caused to the said category of persons on account of increasing physical hearing, and the further indirect exposure to members of their families, particularly young children and elderlies shall be in violation of Articles 14, 19 and 21 of the Constitution of India" 

The Impugned office orders are going to affect several women lawyers even more adversely who have managed to carry out their professional duties till now under the system of virtual hearing but will now be forced to choose between their family responsibilities including young children and their profession. They will either be forced to return the briefs which is against ethics of the profession or forced to go to courts endangering the health of the young children/old parents.

"On the other hand the right of the litigants to have effective representation and have a counsel of their choice to represent them in courts will also be seriously violated in as much as they will be forced to engage the counsels who could do the matters in the physical court only and not necessarily a counsel of their choice. The Impugned office order will have disastrous effect on the access of justice to litigants on one hand and to the health, safety, security & well being of litigants, advocates, clerks, court staff, support staff and even the judges, and their families", it is pressed.

The Impugned office orders refer to the "decline in intensity of Covid-19" case as an apparent ground to resume physical hearing in courts in the manner stated above, which in the submission of the Petitioners, is wholly erroneous.

"As a matter of fact as per the Covid-19 update on government portal, there are 10732 reported deaths with more than 2795 active cases in National Capital Territory of Delhi till 15.01.2010. The number of deaths in the country till date is more than 152274 while active cases being more than 208866. This apparent stabilization has been reached after following complete lockdown and a gradual opening up with strict restrictions and advisories on social distancing, avoiding mass gatherings etc. There is an additional threat from the new variant of SARS- CoV 2 virus reported by the Government of United Kingdom (UK) to World Health Organization (WHO) and that between 22 and 29 December 2020, a total of 23 countries (including the United Kingdom) have officially reported the UK variant (SARS-CoV-2 VOC 202012/01) with 151 cases. This variant is defined by a set of 17 changes or mutations and one such mutation N501Y is reported to result in the virus becoming more infectious and spreading more easily between people", it is advanced.

It is stressed that even though the vaccine drive has started from 16.01.2021 both the actual effect and the timeline for vaccination lie in uncertain zone. Therefore, use of mask, avoiding crowded places and maintaining hygiene is the only effective way to protect one's life and those of others in current situation.

The Petition has been filed by Advocate Suieta Ojha and drawn by Advocate Sanjana Saddy.

Earlier, four advocates had moved the Supreme Court 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.