Senior Lawyers Write To Bombay HC CJ On Access To Justice During & After COVID-19 Pandemic

Senior Lawyers from Maharashtra today has addressed a letter to the Chief Justice of Bombay High Court, Dipankar Datta on normal functioning of Court on account of backlog of cases during COVID-19 pandemic.

With the enforcement of the lockdown effective 20 March 2020 functioning of the High Court at Bombay has been drastically reduced, if not at a virtual standstill.

The letter has been written by Shri Iqbal M. Chagla, Shri Janak D Dwarkadas, Shri Fredun De’Vitre, Shri Navroz H. Seervai, Shri Darius J. Khambata all Senior Advocates and members of the Bombay Bar.

The letter highlighted that hearings in Bombay have been limited to about five judges who sit for two days in the week from 12 PM to 2 PM. From the data available on the High Court’s website, it appeared that since 24 March 2020, the High Court has passed 404 orders of which 182 orders appear to be substantive and there was no information available as to the basis on which these cases were categorised as ‘very urgent’ or ‘urgent’ and taken up for immediate hearing.

It was further said that reports in the media indicated that Mumbai will continue under lockdown at least till the end of May 2020. Even when the lockdown is eased, inevitably normal work life will not be restored as social distancing and other restrictions, self-imposed or otherwise, will continue for an indefinite period and It is unthinkable – but nevertheless a reality – that the fabric of our democratic republic will continue to be imperilled by the continuing curtailment of access to justice which needs to be remedied now.

As per the data on the Bombay High Court website indicated that as on 30 June 2019 over 4.5 lakh cases were pending. Further, between 2 March 2020 and 20 March 2020, 1,256 cases were filed (only on the Original Side) i.e. approximately 90 cases per day were filed. On this basis, it was assumed that even if normalcy be restored by 30 June 2020, which is most unlikely, approximately 6,700 fresh cases (that were held back during the lockdown) will be filed on resumption.

The Lawyers further suggested some measures in the letter as: –

“While we recognise that some of the suggested measures may be implemented in the relatively medium-term, we believe that many could be implemented and operationalised immediately and consistently with the initiatives of the Supreme Court of India.

1. The Court should hold hearings with the full strength of all available judges from 11 AM to 2 PM and 3 PM to 5 PM on all regular Court working days, consistent with the Supreme Court’s sittings as reported in the media.
2. While mass transit is restricted the Court should make arrangements for bussing travel for all relevant staff of the Court. In this connection, the Kerala High Court has issued an Official Memorandum dated 15 May 2020 that “Steps are being taken to arrange conveyance facility from different locations in the district to the High Court and back, in coordination with KSRTC [Kerala State Road Transport Corporation]”.
3. All preparatory measures may be put in place now so that physical hearings may be resumed at the earliest.
4. E-filing facilities: a. Consistent with the Supreme Court practice e-filings should be available for all fresh filings and not restricted to ‘very urgent’ or ‘urgent’ cases; b. All e-filings must be in searchable PDF format, with exhibits / annexures bookmarked and hyperlinked so that judges and lawyers can efficiently navigate through the record”.

Thereafter, the lawyers made a remark by saying that “The present system of listing matters on praecipes needs to be revamped”, by adding few points such as: –

1. The judge must consider whether the matter requires to be listed for an urgent hearing. Permission to list must be granted (or refused) only by judges (and not by associates as seems to be done presently);
2. All filed matters must be placed for admission / hearing, as the case may be, before the relevant bench in their regular turn as was done before the lockdown;
3. All listings must be communicated by the Court offices to the Advocates on record / the parties at least two working days prior to the date of the hearing via email at the email IDs provided and also via text messages at the mobile numbers provided. The email and text message settings of the Court offices must require a ‘delivered’ and a ‘read’ receipt. Such receipts should be sufficient proof of service. Urgent matters should be listed with shorter notice. [see Rule 5(1) and Rule 5(3) of the Draft Supreme Court Rules]
4. In advance of any video hearing each party must file in court and exchange with the other party(ies) soft copies of judgments relied upon and brief written submissions foreshadowing arguments proposed to be advanced at the hearing along with a chronology to be used at the time of arguments.

It was said further that video hearings in all matters pending before 24 March 2020 may be directed by the Court and should also be taken up for hearing with the consent of the parties, so long as the entire record in fully searchable PDF format with hyperlinks and bookmarks is re-filed with the registry at least one week prior to the date fixed for hearing.

“The pandemic should be used as an opportunity to streamline processes and increase efficiency for the long term”, said the letter.

-India Legal Bureau