Physical hearings set to make a comeback: What Delhi lawyers have to say on the move

After a year-and-a-half, the Delhi High Court and all district courts are set to fully resume physical hearings from November 22, 2021..With a significant drop in COVID-19 cases, getting back to the familiar physical system of hearing could instil confidence in the legal fraternity, many of whom have faced great difficulties during the pandemic..Bar & Bench spoke to legal practitioners on the imminent shift to physical court, with the option of hybrid hearings on request..A content Delhi High Court Bar Association (DHCBA) President and Senior Advocate Mohit Mathur said that the association's requests of reverting to full physical functioning have ultimately borne fruit.Mathur noted that the move will benefit practising advocates.“The Court has given itself more than two weeks after Diwali so that if the Covid cases rise, appropriate measures can be taken. We understand that these were exceptional times and therefore exceptional measures were taken to adapt to virtual functioning, but it was high time we went to physical hearings now since the Covid cases are down and vaccination numbers in Delhi are also very high," he said..Judges, lawyers and judicial staffers had faced the brunt of the COVID-19 pandemic and with the situation having impacted legal practitioners financially, mentally and physically, the move will perhaps offer them some reassurance..Advocate Karuna Nundy referred to a survey stating that 90% of Delhiites have had COVID-19 and that this fact perhaps prompted the complete reopening of courts.“This will help lawyers who were suffering from the limits on physical hearings and benches that are more comfortable with physical audiences,” she said.Nundy lauded the Delhi High Court for doing a fantastic job with the virtual hearings during the pandemic.“There are those who access justice better virtually - lawyers and litigants who find it difficult to come to court, working parents and other caregivers who find it difficult to travel to court. It’s a boon. With women's participation in the Delhi workforce down to single percentage digits, one hopes that permission for VC will be for the asking,” shared Nundy..She also felt that with courts overburdened, a lot of the lawyers’ time was spent waiting for cases, and appearing from chambers could be extremely productive.“But much depends on the individual judge, if they have a preference for physical hearing, then that may be indicated and lawyers must do their best to comply,” she said.Nundy pointed out that there were many lawyers, young and otherwise, for whom physical courts are a valuable networking opportunity. “It's over chai and talking to other lawyers that they get work. Physical reopening will help their ecosystem,” she added..Senior Advocate Rebecca John said that in trial courts, in any case, every district court judge had been sitting physically at least on four days. “Even in the High Court, there are an increased number of courts sitting physically. The Supreme Court has also opened physical hearings on two or three days. I think it’s fine as long as you keep your eyes on the numbers and track the pandemic situation very closely, and don’t allow things to go out of hand." "The minute you see numbers increasing exponentially, I think the courts can revert to having virtual hearings because they have an entire infrastructure in place. But as of now, there doesn’t seem to be any reason why they shouldn’t start physically because the rest of the world is also now limping back to normal and that’s how it is. I don’t have any real objection to it,” she added..The senior lawyer, however, suggested that as Delhi courts had to go through the exercise of setting up a robust infrastructure for hearing matters virtually, the system should not go to waste.“I think it is possible even after opening of courts physically on given dates for given matters, for courts to have the flexibility of hearing the matter virtually. I think there are a lot of advantages because you slow down traffic, and the footfall at courts will decrease,” argued John..The senior lawyer also saw no reason for everybody to rush to courts for each and every matter, as those hearings could be done virtually.“So, perhaps that kind of audit can be made in the future and we have a system where we largely work physically but for some given cases, with consent of parties, we can work virtually as well. It would just create an all around robustness to the system,” added John..It was also highlighted that for young lawyers, the actual training lies in a courtroom when they are physically present, and not in a virtual space.“The opportunities for appearance will increase as we open up physically because then, of course, it's about who runs where and that’s how you learn. That’s how all of us learnt,” John underscored..On the issue of the mounting backlog, she asked, “When will they be taken up? Can it be taken up or is that just dead weight? We don’t know. The backlog is severe. There are some appearances, some courts which largely are attended to by junior lawyers and them not having had that work for the last two years has affected their morale, their income and their financial strength. It’s only when you do that kind of work you feel confident to go to the next level and then the next. I think it’s a good thing for young lawyers that courts are opening up.”.Advocate Arpit Bhargava said that it was clear that physical hearings have started owing pressure from the bar associations. “Even the Chief Justice of India said that they were compelled to go for physical hearings under pressure from the bar associations. When the system is working well with hybrid mode, what is the point of going back to physical only?” he said..“The loss is of both lawyers and litigants. You could appear in multiple courts sitting in your chambers, but now you will spend more time moving from one bench to another or from the High Court to the district court. The virtual hearings didn’t only save time for lawyers, but even for courts. The overall productivity is going to be affected by the move,” he added..Advocate Manoj Taneja, however, praised the development, saying that virtual hearings especially in lower courts was a major issue for advocates. “In the High Court and Supreme Court, every document is paginated but not in lower courts. That’s why so many adjournments were given, because one or the other document went missing. It’s good that the physical hearings have now started,” he said..On the other hand, Advocate Manish Makhija disagreed and underlined that the Delhi High Court had functioned best in the hybrid mode. He did not see the need to go to fully physical, and said that the Court's productivity was bound to dip."In physical courts, half of a lawyer's time goes into travelling or waiting for their matter to be called. Sometimes your case is listed at the top but gets called much later so you have to wait. It was much more convenient for us and even for judges. We have invested so much in establishing the infrastructure that I just hope we will still have some sort of hybrid arrangement," noted Makhija..Advocate Amresh Anand stressed that it is “completely fine” to go back to the physical way of hearings, as ultimately no other institution, at least the government ones, had delayed or dispensed their physical work. According to Anand, reverting to physical hearings is much needed when it comes to young lawyers who neither have the comfort of working from home nor adequate video-conferencing facilities.“They don’t even own offices. If you ask me, I have an office, a car, so I can leave home at 8 am, come to my chamber and have internet access facilities so I can handle two cases at a time also. This works well for those who have the infrastructure and those who can afford it.When you go to younger lawyers, they certainly don’t own a car, at least not all of them, they don’t have proper offices to sit and even if they do, they’ll have one office where six of them sit,” he pointed out.Terming it a “welcome step” and something in the interest of the Bar and the Bench, Anand recommended adherence to all necessary protocols once the courts open up..Only time will tell how the move to revert to physical hearings will pan out, with the spectre of COVID-19 still lurking in the background.