‘If malls can open, why not courts?’: Lawyers are divided about restarting physical hearings

As the Covid-19 pandemic hits every aspect of life, the justice delivery system is no exception. Last week, Scroll.in reported that there has been a 50% drop in the number of cases disposed of by the High Courts in 2020 and a 70% drop in disposal rates in district and taluka courts compared to 2019.

After a nationwide lockdown was imposed on March 25, the Supreme Court decided to move to virtual hearings. High Courts and subordinate courts followed the apex court. Across the country, courts at all levels confined themselves to urgent and important matters, which has been reflected in the poor disposal rates.

However, with no end in sight to the pandemic, many litigants are demanding that physical hearings be resumed. But lawyers and court officials are divided about this.

The divisions came out starkly in the Supreme Court last week. In late August, the Supreme Court proposed to restart physical hearings on an experimental basis, with a limited number of cases. For this purpose, a list of 1,000 cases were drawn up and consent was sought from the lawyers to appear physically.

It turned out that hardly a handful of these matters, less than 1%, received consent from the lawyers for physical appearances.

This was in stark contrast to the demands made by officials of the lawyers’ associations in the Supreme Court, including the Supreme Court Bar Association. While these bodies wanted physical hearings to be resumed (an important reason for the seven-judge committee looking into the matter to consider an experimental phase), the lack of consent from lawyers means it is not clear when and if the court would resume physical functioning.

On the other hand, several High Courts, such as the Delhi High Court, and courts subordinate to these High Courts, resumed physical hearings last week. Several more are set to begin in the coming days.

But in these courts too, there are differences among lawyers on how to conduct the court proceedings.

Subordinate courts

The bulk of litigation in India happens in the courts subordinate to the High Courts. And it is here that a majority of lawyers make their income.

The absence of physical hearings means that lawyers in the subordinate courts in the districts and small towns have faced a severe financial crisis.

However, Chennai-based lawyer Jim Raj Milton said it was not just about the financial condition of lawyers that had made many of them request the resumption proper physical hearings.

“Every day the court does not function, someone somewhere is in jail for that much longer,” he said, pointing to criminal trials coming to a standstill in trial courts across the country.

The courts subordinate to the Madras High Court in 29 districts began physical hearings in late August. On September 1, the High Court allowed courts in Chennai and the surrounding districts of Kancheepuram and Tiruvallur too to begin physical hearings.

But these hearings have not commenced in a full-fledged manner.

According to the notification issued by the Madras High Court on September 1, fresh filings will be done through “drop boxes” in these courts. The court administration will pick three to five cases a day for physical hearings on a trial basis and only those lawyers whose cases have been picked will be allowed into the courts.

Milton said that ever since the lockdown in March, the subordinate courts in Tamil Nadu have mostly focused on urgent matters such as miscellaneous criminal applications and bails. He said that this was an untenable situation.

According to data on the National Judicial Data Grid, 52% of criminal applications disposed of by the courts in 2020 till September 6 were bail matters, compared to 42% in 2019. However, as Scroll.in reported, there has been a 70% drop in overall disposals in the subordinate courts this year till August 31. This means the absolute number of bail applications disposed is much smaller than last year.

“Other organs of the state like the executive are now functioning almost to full capacity,” he added. “There is no reason why courts should not start in a full-fledged manner following the precautions issued by the government.”

In Assam, lawyers in August held demonstrations outside the High Court in Guwahati demanding resumption of physical hearings. A committee of five judges then said the virtual conference mode will continue till September 21, after which a decision will be taken about physical hearings.

Santanu Borthakur, a Guwahati-based lawyer, said the system cannot afford such an accumulation of cases. If the courts do not function properly, the finances of lawyers will continue to be severely strained. “Trials have come to a standstill, as also civil matters,” he said.

On the fear that Covid-19 will spread if physical hearings resume, Borthakur said that the courts could stagger the listing of cases and ensure that there is no crowding in the buildings. “If a court does about 40 matters a day under normal circumstances, this could be brought down to 10 cases a day so that there is no pressure on the judges either in such a difficult situation,” he said.

However, some lawyers point out that subordinate courts in many backward districts do not have proper facilities in the buildings to scrupulously follow the precautions. A Patna-based lawyer, who requested anonymity as he represents the state government, said crowding was a big problem in subordinate courts. “There has to be assurance that facilities will be improved,” he said.

The lawyer said while the discussion on restarting physical hearings has proceeded mostly between High Courts and lawyers’ associations, the plight of litigants should also be taken into account.

“Let’s say a trial is listed and I have to cross examine a witness,” he said. “Now, what is the guarantee that the witness would be willing to go all the way to the court in such a time?” If witnesses do not appear, then the matter would merely be adjourned.

Bengaluru-based lawyer Basawa Prasad Kunale said with regards witnesses, the scope of witness protection measures could be expanded to cover the Covid-19 situation. “In a normal circumstance, witness protection is offered against physical harm,” he said. Given that Covid-19 is also a matter of physical harm due to the infection, the rule should be made flexible to help the witness.

“The court can ask the concerned police station to provide transport,” he said.”This would require additional resources but it is worth it.”

Further, Kunale said courts could restrict number of witnesses examined per day to ensure there is no overcrowding. “For how long can trials, whether criminal or civil, be put on hold since we do not know when this pandemic will end?”

The lawyer said it was difficult to understand how shopping malls, which are not a necessity, are open in Bengaluru but courts, which deliver justice, have not gone fully physical.

High Courts

There has been a flurry of activity over the last few weeks in the High Courts, with several of them having already started some level of physical hearings or are slated to begin physical courts in the coming week.

The Bombay High Court on August 31 began restricted physical hearings. Two division benches and two single judge benches will hear criminal appeals till September 15. Other benches will continue to hear cases over virtual conference.

The Allahabad High Court was one of the first High Courts to start physical functioning in June. According to a press release on August 4, the High Court said “5,237 cases and 1,440 cases have been disposed by physical hearing in Allahabad and Lucknow Bench respectively, in the month of July 2020.”

However, on July 4, the Allahabad High Court decided to suspend physical hearings in the Lucknow bench due to a spike in Covid-19 cases in the city. On August 25, lawyers protested against this move and decided to abstain from court work.

The Lucknow bench was supposed to begin physical hearings on Monday. But since the court has announced that it would be closed on Monday, lawyers were hoping that the proceedings would start on Tuesday.

Even when the Lucknow bench was functioning virtually, lawyers had complained of poor internet connectivity that had disrupted many hearings.

A lawyer in Telangana said the High Court has announced partial physical hearings from Monday for a week, with one division bench and four single-judge benches. The court will then decide whether to continue and expand the process. However, the subordinate courts only in Karimnagar will function physically. All other courts will continue virtual hearings.

The lawyer said the big worry is what would happen in case court officials or judges get infected despite the precautions. “We should not come to a situation where we completely stop work due to drastic spread of the infection,” he said.

Supreme Court

Lawyers voiced similar concerns about restarting physical hearings in the Supreme Court. Given that less than 1% of lawyers opted for physical hearings in the 1,000 cases that were listed for the experiment, the courts finds itself in a difficult situation.

Sriram Parakkat, an advocate on record at the Supreme Court, said that in August, a group of 225 lawyers had made a representation to the seven-judge committee to continue with virtual hearings. That number, he said, has grown to about 500 now. “Though 500 is not a majority, it is still a significant number of those who regularly go to the court,” he said.

On August 12, the judges’ committee suggested a hybrid model of physical and virtual hearings. Three courtrooms were readied with facilities such as a glass partition between the bench and the lawyers’ tables, exhaust fans and sanitiser dispensers.

The lawyer added that it is not just about the physical presence in the court, which definitely puts people at risk. It is also, he said, about the process of getting to the court itself. “Not all lawyers have cars,” he said. “Many use public transport. That is another risk.”

Parakkat said there have been many instances of the coronavirus infecting court staff and judges in several courts across the country. “It is not as though we don’t understand the problem of lawyers losing income or the trouble the litigants are going through,” he said. “However, given the situation of rising cases, we don’t think this is the right time to start physical hearing.”

Instead, he said other options such as expansion of virtual hearings could be looked into.

In June, four judges of the Madras High Court were infected. In July, media reported that 70 officers and court staff were quarantined in the Punjab and Haryana High Court after a secretary of a judge tested positive. In August, the Karnataka High Court said 46 staff members had tested positive for the virus. Even Chief Justice Abhay Shreeniwas Oka had to go into quarantine.