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"Practically one-third of 2020 has been lost", DHCBA writes to Delhi HC Chief Justice seeking resumption of physical hearings [Read Letter]

The Delhi High Court Bar Association's request is the latest in a series that seek the resumption of physical court hearings after the COVID-19 pandemic forced Courts to suspend regular functioning and function virtually

Lydia Suzanne Thomas

The Delhi High Court Bar Association (DHCBA) is the latest Lawyer Association to seek a "graded" reopening of Court(s) amid the continuing COVID-19 pandemic.

With the COVID-19 pandemic forcing much of the country into lockdown and minimal physical interaction, an impact has been had on the regular functioning of Courts across the country. Citing the financial toll on lawyers and the stress on the justice system, Bar Associations have begun requesting Chief Justices of High Courts to resume physical hearings at Courts.

While making a similar request, the Delhi High Court Bar Association cites various reasons, while also proposing the enforcement of safety norms.

"Practically one-third of the year 2020 has been lost in this lock-down ... Court hearings through video conferencing can never be a complete and adequate substitute for physical Court hearings."
- DHCBA in its letter

The Association proposes an "urgent, graded, resumption of physical hearings,", suggesting various safety measures including:

  1. Resuming physical hearings with a limited number of benches functioning at Court, initially;

  2. Listing only a handful of matters for physical hearings when Courts reopen, with the rest to continue being heard virtually;

  3. Allowing only a specified number of advocates per party entry into Court for hearings, with others allowed access virtually;

  4. Restarting the listing of non-urgent matters both virtually and in Court

  5. Enforcing physical distancing norms in Courts, with distance markers in parking lots, chamber blocks, banks and post offices, registry and in Court corridors;

  6. Closure of the Court canteen and the cafeteria;

  7. Reducing the seating capacity in lobbies.

Emphasizing that the measures suggested are not exhaustive, the Association requests that they be considered in any decision to resume physical hearings at the High Court.

While the DHCBA records its appreciation for the mechanisms put in place by the Delhi High Court's Administrative and IT Committees and the Registry to cope with the pandemic, the Association lists various reasons for seeking the reopening of Courts. The Association goes on to highlight the following concerns in this regard.

Mental and economic strain on lawyers

"Every possible effort to restore normalcy needs to be made...Courts cannot be the exception (to the Government's 'Unlock' protocol) at the cost of the livelihood of the vast majority of lawyers", the letter states.

The non-listing of cases deemed as non-urgent has financially prejudiced many lawyers, it is added further.

Backlog of cases

The Association writes of the "inherent" limitations of virtual/video hearings, that have kept matters sub judice in a state of suspension for nearly four months.

Regular Matters are difficult to post for hearings presently given their voluminous, bulky case files and complexity, the letter notes.

The lack of access to Trial Court records and other documents by reason of the pandemic and the lockdown has "handicapped" lawyers and their effective assistance to judicial officers, the Association states further.

"Needless to state, this has also added to the backlog of pending cases", it is stated.

The impact on Rule of Law

The rule of law mandates the conduct of open hearings accessible to all, highlights the DHCBA.

The inherent disadvantages of virtual hearings, and the hurdles of accessing virtual hearings for "a majority of litigants and lawyers" make justice "inaccessible and unaffordable" presently, the letter says.

Difficulties of Virtual Hearings

The letter highlights that connectivity and bandwidth concerns have been leading to many cases not being taken up on a particular day.

Moreover, physical distancing has led to a lack of coordination between briefing and arguing counsel in many cases, leading to long-winded submissions and arguments, to the detriment of litigants.

"This (Lack of coordination between Counsels) results in lengthier arguments, which invariably leads to wasting precious judicial time", states the letter.

Additionally, many lawyers find it difficult to argue effectively over video, the letter sets forth.

On the conduct of trials through Video Conferencing

Pointing out that several jurists have spoken of pitfalls in the conduct of trial via video, the Association avers that the purpose of judicial tools such as cross-examination is defeated when video conferencing is resorted to.

"Holding of trials through video conferencing would have several pitfalls and could be a tool for misuse in the hands of unscrupulous litigants...(It) would encourage witness tutoring and prompting. It would be extremely tough to confront the witness with various documents", the letter states.

Read the letter here:

Delhi High Court Bar Association Letter to CJ - dated July 21, 2020.pdf
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