Wednesday, April 21, 2021
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#AllLivesMatter

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Atul Goyal
Advocate at Punjab and Haryana High Court. Writing: Between Torture and Fun. Offline is the new luxury.

Vulnerability is the birthplace of innovation, creativity and change. As of 07.06.2020 India has overtaken Spain and has grabbed the 5th spot in terms of Corona Virus cases and also observed the highest jump in the number of cases in a single day, as it crossed the mark of 10,000. There have been instances where patients are unable to find a bed in a hospital and some of them have even died while waiting outside the hospitals gasping for breath.

We have come a long way from observing “Janta Curfew” to “Unlock 1.0”. To put things in perspective India had around 650 cases when the first lockdown was announced on 25th March, 2020, whereas on 31st May 2020 when the 5th phase of lockdown began allegedly called as “Unlock 1.0” the total number of cases in India was around 1,90,650 out of whom around 93,350 were active cases. On 02nd June, 2020 India crossed it’s tally of 1,00,000 active cases. The Press Information Bureau, New Delhi while citing the notification of Ministry of Home Affairs dated 30.05.2020 had stated “Unlock 1 to have an economic focus.”

Image is only representational.

In time of COVID staying healthy comes at the price of social distancing and lockdown, and apparently lockdown comes at an expensive cost in terms of loss of economic activity. In the legal sector also lockdown meant closing of Courts and for a lawyer when the Courts do not work, their economic situation becomes precarious. But in a democracy the gates of justice can never be closed and hence the Courts around the Country were swift to embrace technology including cases to be heard through Video Conferencing while at the same time restricting hearings to only critical cases.

Now when the rules relating to lockdowns are being relaxed all over the country despite growing number of cases, the demand for opening the courts for physical hearing is also gaining strength. In-fact Bar Council of India through its chairman M.K. Mishra has urged CJI S.A. Bobde to resume physical hearings of the matters with appropriate social distancing norms. Similarly Bar Council of Punjab and Haryana has passed a General House resolution regarding resumption of work by starting physical and actual hearing of cases in the Courts of Punjab, Haryana and Chandigarh. Various Associations including Supreme Court Advocates-on-Record Association (SCAORA) have also requested chief justices of High Courts and Supreme Court to resume physical hearing. The argument for opening Courts for physical hearing is based on three factors: economic difficulties being faced by the lawyers, technological challenges and declaration of Unlock 1.0 by the Government. 

Image is representational.

Well desperate times call for desperate analogies. The ‘unlock 1.0’ by the Government is purely based on economic necessity rather than medical liberty. The argument for opening Courts relying on Government’s notification for “Unlock 1.0” is as helpful as the 20 Lakh crore package is to the legal community.

Secondly the argument that the lawyers are facing technological difficulties in presenting their cases online is absolutely correct for the trial lawyers mainly. Most of the lawyers in High Courts and Supreme Court are quite adaptive to the technology. In-fact most of the work in High Courts and Supreme Court is argumentative and does not involve recording of any evidence and the same is fairly non-technical, whereas it is the Courts at District level where the entire action is taking place. The procedure is extremely technical especially recording of evidence where physical appearance would serve the ends of justice in a far better manner. 

However lawyers apart from District Courts are seeking opening of High Courts and Supreme Court as well. More than the technological aspect, the reasoning is financial in nature. It is true that it is a testing time for legal fraternity. To quote the words of Mahatma Gandhi “How am I to talk of God to the millions who have to go without two meals a day. To them God can only appear as bread and butter.”

In-fact it’s a trade-off between health and economy. But many of us believe that you can revive economy and even seek help but we can’t bring back life. The situation is so unprecedented that your decision not only affects you but everyone else around you including your loved ones. This virus is so vile that the moment you step out your situation is no less than a ‘Schrödinger’s cat’ (both dead and alive).

Imagine sending your child to school in these times. Students, teachers and staff from all walks of life will gather there. The risk is at the optimum. Similarly in Courts: Judges, lawyers, police officials, staff, para-legals, clients and witnesses will assemble in a “normal” working of Courts. One will be putting his life in the hands of decision-making authority of others. 

The infrastructure, especially at District level is in a dilapidated situation. Most of the Courts at District level are a cry for help. It is insufficient to accommodate all the stake-holders while observing social distancing. In-fact bringing a file from record room and to present it before the Judge itself poses such a serious risk. For lawyers to appear in Courts everyday physically and to be around so many persons in congested places is a recipe for disaster. The Courts can easily become the new hotspots.

During these days, despite de-congested Court rooms and limited number of cases, the judicial officers have contacted COVID. Three of Madras High Court Judges have been tested to be COVID positive. Two Delhi Court Judges were tested positive after one of them came in contact with a COVID positive patient who was produced before him for recording his statement on May 6, 2020. District and Sessions Judge, Rohini Court has also been tested positive. In-fact on 03.06.2020 ‘barandbench.com’ published the response of President, Rohini Court Bar Association about the videos on social media calling for lawyers to sit on strike from 08.06.2020 onwards for opening of Courts for physical hearing to which he specifically stated “Our motto is stay home, stay safe. Allowing Courts to start physical hearing would be disastrous. Till now there have been no cases of lawyers getting infected at work only because at present, there are no physical hearings.”

Even at Barnala, Punjab at-least 4 judicial officers along-with their staff have been asked to self quarantine themselves at home after the accused arrested under the NDPS case turned to be COVID positive. Two judges at District Civil and Sessions Court in Alipore, West Bengal have also been tested positive. Even in Supreme Court the Judge and his family had to quarantine themselves when their cook was tested positive. News of police personnel requiring quarantining themselves on account of positive result of any Court employee or accused in a matter has become a common one.

Grim times are also the time to recall our strengths and think of how to apply them innovatively. There are businesses who have no alternative except to go on the conservative way whereas the Courts are already taking up matters through video conferencing and as far as the issue of efficiency is concerned, we must utilize our resources and energy in innovating new ways to tackle this issue and enhance the efficiency rather than giving up and running back to the old ways because they are more comfortable and easier to access. If Charles Babbage had believed in old ways, you wouldn’t have been reading this today. Bar Councils can instead create technology awareness amongst various bars by creating different channels.

The Bar Associations in collaboration with State authorities can utilize various Offices/Centers like Suvidha Centre for recording of evidence through video conferencing. The process may be inconvenient but at-least safe. Once we start having a grip over the technology, Courts may start taking up more matters which would help the lawyers financially as well. Economic argument has a flip side also. In-fact there is food for thought that in these times when people have lower paying capacity they may rather opt for young counsels than engaging a high profile Counsel. We cannot become what we want by remaining what we are.

You are safe because you are home. I don’t think so courts should be opened physically, at-least for now. Unpopular to say these days but yes #Alllivesmatter.

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Atul Goyal
Advocate at Punjab and Haryana High Court. Writing: Between Torture and Fun. Offline is the new luxury.

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