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Delhi HC has agreed, but lawyers divided over hybrid hearings via physical & virtual modes

While some lawyers are not in favour of physical hearings citing health and family reasons, a few lawyer associations have called for graded resumption of offline hearings.

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New Delhi: The Delhi High Court Friday noted that it will start a hybrid system of hearings with both physical and virtual hearings taking place simultaneously. In this system, one of the two lawyers can choose to appear either in-person or virtually according to their convenience.

According to the circular issued by the high court, the judges who sit in court will hold physical hearings and a request for virtual hearing will be entertained if it is made well in advance.

The court, however, did not give any date for commencing the new system.

This decision follows a pushback by Delhi lawyers against the high court’s earlier order, issued on 18 January, which increased the number of benches that will hold physical hearings from 3 to 11.

The order had divided lawyers in the national capital, with those in favour of virtual hearings noting the new order made it mandatory for lawyers to appear in-person and does not take into account their choice. Several women lawyers had highlighted that they will be forced to choose between taking care of their children and appearing for cases with this order.

The HC’s decision was challenged before the Supreme Court Wednesday on these grounds but the top court refused to interfere, and instead asked the petitioners to approach the Delhi High Court chief justice.

In a meeting convened by Delhi HC Chief Justice D.N. Patel Wednesday evening, senior advocates Kapil Sibal and Mukul Rohatgi, representing the petitioners, suggested a hybrid system, where a court holds both physical and virtual hearings, simultaneously.

“If one of the two lawyers chooses to argue the case virtually, he or she should be permitted, while the one who opts for physical mode can appear before the court,” a lawyer who participated in the meeting told ThePrint.

Meanwhile, the lawyers who want physical hearings to resume told ThePrint that the sudden shift to the online mode of functioning left several young lawyers to fend for themselves while senior advocates have been participating in multiple hearings from the comfort of their homes.

Young practitioners, according to them, had to leave their practice and take up odd jobs in their hometowns.

Office-bearers of the Delhi High Court Bar Association (DHCBA) also called for a cautious graded resumption of physical hearings.

According to Abhijat Bal, secretary of the DHCBA, courts should resume physical hearings with daily Covid cases coming down.

“The association supports anything and everything, which ensures to facilitate advocates. We, however, hope that full physical and normal functioning of the high court and district courts recommences as soon as possible in the manner it was prior to the pandemic,” he told ThePrint.

All courts in the country, including the Supreme Court, had shifted to virtual hearings after Prime Minister Narendra Modi announced the nationwide lockdown on 24 March 2020.

While several high courts — in Bombay, Allahabad, Madhya Pradesh, Kerala, Karnataka and Patna — have a few benches that have been hearing cases in-person, no court has completely opened up.


Also read: Virtual courts won’t displace open hearings, but tech has potential: Justice Chandrachud


‘Women lawyers forced to choose between work and children’

Two petitions were filed before the top court against the Delhi HC’s decision to increase the benches for physical hearing.

The first petition stated that the HC had started a hybrid system of physical and virtual hearings in November and the lawyers could choose the mode they were most comfortable with. However, the recent order makes it mandatory for lawyers to appear before the court physically.

The hybrid system, the plea noted, was accommodating as it catered to the needs of lawyers.

The second petition was filed by five women lawyers who said they have been discharging their professional duties as well as looking after their children, who are attending online classes.

According to their petition, the resumption of physical hearings will force them to choose between their work and taking care of their children, or expose them, their children as well as vulnerable members of their families to Covid-19 since they have not been offered another alternative.

Senior advocates Kapil Sibal and Mukul Rohatgi, appearing for both the petitions, told the bench, led by Chief Justice of India S.A. Bobde, Wednesday that there was a need to balance right to life and delivery of justice.

Advocate Mohit Paul, who filed the petitions for the lawyers, told ThePrint there was no opposition to physical hearings, but what is preferred is gradual resumption and not an immediate one.


Also read: Let virtual courts continue after pandemic, they are safer & faster, parliamentary panel says


’90 per cent lawyers have no work’

Meanwhile, disciplinary and regulatory bodies for lawyers, such as the Bar Council of India (BCI) and the Delhi Bar Council (BCD), have supported the move to resume physical hearings.

Ved Prakash Sharma, co-chairman of the BCI, noted that a joint meeting with representatives of state bar councils and associations revealed that 90 per cent advocates had been adversely affected due to virtual hearings.

“Lawyers are distressed. This system has helped just 5 to 6 per cent of lawyers in the profession. Physical hearing should resume as soon as possible,” Sharma told ThePrint.

Delhi Bar Council Chairman Ramesh Gupta cited Delhi Health Minister Satyendra Jain’s recent statement that active cases in the national capital are now at a record low, to argue for physical hearings.

“BCD registered close to 10,000 lawyers during the pandemic. On account of virtual hearings, no lawyers are keeping interns or recruits. While the future is bleak for these young lawyers, a handful (of senior lawyers) continue to make multiple appearances and earn while sitting in their farmhouses outside Delhi. Lawyers need to come out of their comfort zones,” said Gupta, also a senior lawyer of the Delhi High Court.

Senior Supreme Court advocate Vikas Singh also stressed on the urgency for courts to go back to pre-Covid times. In a letter to the CJI, Singh highlighted how senior advocates are engaged all over the country while sitting in Delhi but this facility is not available to young members of the Bar.

Another senior advocate, Shivaji Jadhav, noted that the court needs to make it mandatory for lawyers to appear in-person.

“If choice is given, then it (physical hearing) will never resume. All courtrooms in SC have been prepared to meet the challenges posed by Covid. I don’t understand the hesitation on the court’s part to start physical hearings,” said Jadhav.


Also read: Start-ups and AI can rescue choked Indian courts


 

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