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List of "essential service workers" allowed travel in local trains amid COVID not violative of Advocate's Right to Practice: State to Bom HC

The State made the submission in an affidavit filed in response to a plea before the Court seeking a declaration of legal services "essential" to enable the travel of lawyers in local trains amid the COVID-19 pandemic.

Lydia Suzanne Thomas

The State of Maharashtra has submitted before the Bombay High Court that its circular regarding the list of "essential services workers" permitted to commute in special local trains plying amid the COVID-19 pandemic does not violate an Advocate's right to practice.

An affidavit to this effect was filed in response to a plea seeking the declaration of services provided by legal professionals as “essential services” so as to enable their travel in the special local trains.

The State affidavit has been filed through Kishor Raje Nimbalkar, Secretary, Disaster Management, Relief and Rehabilitation.

A Division Bench of Chief Justice Dipankar Datta and Justice Madhav Jamdar is hearing the matter (Chirag Chanani and Ors. v. Union of India and Anr).

A list of “essential services workers” permitted to commute in local trains plied by the Western Railway and the State Government amid the pandemic is the subject of challenge in the petition filed by three Mumbai-based advocates.

The State has now defended its move to limit the number of workers designated as essential services workers stating that,

"In the current pandemic situation only those service providers whose services are of topmost priority and are indispensable have been allowed to travel by local trains so as to avoid over-crowding inside trains, which will ultimately help in curbing the spread of infection...

The State of Maharashtra, inter alia, avers that its Circular does not infringe upon an Advocate’s right of practice as it permits them to commute throughout Mumbai in their private vehicles, following distancing norms in place.

Moreover, the affidavit points out, bus commute is open to the public at present, provided that safety norms are followed. Bus travel was also curbed initially but the restrictions are gradually being lifted, it states.

Emphasising Maharashtra’s (and Mumbai’s) status as among one of the States worst hit by coronavirus transmissions in India, the State’s affidavit underscores the necessity to enforce limitations on movement and travel.

The affidavit further highlights that Bombay local trains are notorious for being overcrowded. It is pointed out that the impending risk of viral transmission had initially brought the train services to a complete halt, even for “those serving in essential services sector."

Thereafter, the State allowed staff directly or indirectly providing services allied to the COVID-19 pandemic and “absolute essential services” to board and commute in local trains “in larger public interest”, the State’s affidavit sets out.

The services of staff working in departments such as banks, GST and Customs Departments, the Port Trust and Public Sector Undertakings are “necessary to normalise economy which has been worst affected by the pandemic”, it is submitted.

Further, services of staff in IT Companies, Judicial Services, Offices of Government Pleaders and the Advocate General are also essential for the smooth running of institutions “in today’s virtual world.” All of these offices function with a restricted workforce to prevent overcrowding, the State submits.

Responding to the petitioners’ allegation of discrimination between independent advocates and government law officers/pleaders in permitting commute, the Affidavit clarifies that it is only the staff of the High Court, the Pleaders' and the Advocate-General’s Offices that are permitted to board the trains, and not the Pleaders themselves.

“It is not that Government Pleaders, who are advocates or lawyers are themselves allowed to travel by local trains.”
- the Affidavit explains.

The State goes on to contend that the plea is without merit. In this regard, the State refers to the Bombay High Court’s ruling of July 10, whereby the Court had refused to declare legal practitioners’ services as essential by reason that it could not be granted by the High Court under Article 226 of the Constitution.

The case is expected to next be taken up on July 31, 2020.

Advocates Chirag Chanani, Vinay Kumar, and Sumit Khanna are petitioners in the matter. They are being represented by Advocate Shyam Dewani briefed by Dewani Associates.

Read the Court's Order here:

Chirag Chanani and Ors. v. Union of India and Ors. - Interim Order dated July 21, 2020.pdf
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