Case BriefsHigh Courts

 Uttaranchal High Court: The Division Bench of Raghvendra Singh Chauhan, CJ and Alok Kumar Verma, J., heard and issued directions in relation to the affidavit submitted in compliance with the order dated 28-06-2021.

Mr. Shiv Bhatt, the Counsel for the petitioner brought to the notice of this Court that certain guidelines have been issued by the Department of Health and Family Welfare. These guidelines were required to be strictly implemented by the State Governments and the Union Territories. The States were directed to have a continuous focus on five-fold strategies for effective management of Covid-19 i.e. tests-track treatment-vaccination, and adherence to Covid appropriate behavior. However, certain relaxations have been given, such as “the lockdown is not to be observed during the weekends”. The counsel stated that the moment the lockdown is relaxed, a large number of people are flooding in the hill stations of the State. Many of them are arriving within the State without the required registration, and without the required RT-PCR negative test reports. Therefore, these tourists, who are pouring in, are beginning to pose a threat both to the creation of the new mutant, and to the spread of Delta Plus mutant.

Mr Amit Negi, Secretary, Health and the Family Welfare, submitted that in total 521 samples have been sent to the NCDC from the State. Out of these, 144 samples have been found to be Covid19 positive, and belong to the Delta variant. A single sample, arising from the Udham Singh Nagar district, has been discovered to be as a Delta Plus variant sample. Therefore, Mr Shiv Bhatt submitted that a direction should be issued to the Government to review its decision with regard to relaxing the lockdown during the weekends; the State Government should also be directed to control the inflow of tourists into the State. He further conveyed his concerns regarding the poor healthcare system and vaccination.

The Court issued the following directions in light of the above-mentioned facts:

1. To review its decision to relax the lockdown during the weekends, and to permit a large number of tourists to invade the State during the said period. For, the tourists may bring in and introduce the dreaded Delta plus variant in the State.

2. The State is further directed to take concrete steps to control the inflow of tourists in the State. The steps, so taken by the State, should be informed to the public at large so that the potential tourists are informed about the steps being taken by the State.

3. This Court directs Mr. Amit Negi, the learned Secretary, Medical Health and Family Welfare, to inform this Court about the number of samples sent to the NCDC; about the reports received from the NCDC with regard to these samples; with regard to the steps taken, either by the District Magistrate, or by the Health Officers of the concerned district where anyone is found to be suffering from the Delta variant, or from the Delta plus variant.

4. Amit Negi is further directed to inform this Court with regard to the number of MRI machines available in the Government Hospitals of the State.

 a. Whether these MRI machines are available in all the Government Hospitals or not?

b. Which Government Hospitals of the State, the MRI machines are not available in the State?

c. Whether all the CHCs’ have doctors appointed in them or not?

d. A complete list of CHCs without doctors should be provided in the report.

5. Amit Negi is further directed to inform this Court with regard to the availability of the pediatric beds, pediatric ventilators, and pediatric wards in the Government Hospitals, and in the private hospitals operating in the State.

6. He is further directed to inform this Court with regard to the position of vaccination in the State. He shall inform this Court with regard to the number of innoculation carried out in each district of the State. How many persons have received the first doze? How many persons have received the second doze? What is the daily rate of vaccination in the State?

7. He is further directed to consider, and to implement the scheme for vaccinating the physically challenged and elderly people, as expeditiously as possible. In case, “near to home clinics” can be established, the possibility for the same should be explored by the State Government.

8.Amit Negi is further directed to consider the possibility of increasing the stipend being paid to the intern doctors. For, on the one hand, according to Mr. Amit Negi, it is difficult to attract the doctors to the State, yet, on the other hand, the stipend being paid to the intern doctors is too low as compared to the other States. Therefore, the State Government should consider the possibility of increasing the stipend of intern doctors within the State.

9. Lastly, Mr. S.S. Sandhu, the learned Chief Secretary is directed to inform this Court with regard to the decision, if any, taken by the State Government concerning tightening of the lockdown during the weekends in the State.

[SACHDANAND DABRAL v. UNION OF INDIA, 2021 SCC OnLine Utt 687, decided on 28-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

COVID 19Hot Off The PressNews

The Supreme Court Registry has released a detailed User Guide for limited physical hearings.  The ‘How to’ User guide answers the ‘How tos’ on

  1. e-Nomination of Counsel/Clerk for Physical hearing
  2. e-Application for Special Hearing Entry Pass
  3. e- Submission of Self-declaration Form

Some Key Points from the User Guide 

For e-Nomination of Counsel/Clerk for Physical hearing

  • AOR can nominate

1. Senior Counsel
2. Advocate-on-record (Other than the user)
3. Appearing counsel (Any other advocate otherwise eligible)
4. Party to the case represented by concerned AOR
5. Registered Clerk of the concerned AOR or nominee.

Total number of AORs appearing in the selected case will be displayed on the top of screen. The working capacity of the Court Room as per standard social distancing norms would also be on display.

  • How will the Limit be calculated: Limit per AOR is Calculated as per total number of AOR in a given case qua the working capacity of given Court Room.  If Limit per AOR is 0 in that case AOR can replace himself/herself with Senior Counsel or Appearing Counsel or Another AOR, as may be the case. If Limit per AOR is 2 in such case besides such AOR he or she can permit any two or combination of Senior Counsel or Appearing Counsel or Another AORs.
  • Entry of registered clerks is permitted to assist AOR or counsel for supplying physical material, as may be required, to argue a case. However, registered clerks
    are not permitted to enter inside the Court Room. Therefore, registered clerks are not counted as attendee inside the Court Room however his entry is permitted up
    to the Court Room. Therefore, Registered Clerk is not counted in the Limit of persons to be nominated by AOR in a given case.
  • If in a given case only AOR is permitted and such AOR replaces and nominates counsel in his place, in such event AOR will not be permitted inside the Court Room for that item number listed before the Court. In the Figure 6 name of AOR shall be at serial No. 1 by default. When AOR desires to replace himself/ herself, he or she can delete his/her entry and make fresh entry with appropriate replacement.
  • Mobile Number is mandatory field for nominating any person for physical hearing. On the basis of mobile number entry pass mechanism is designed, therefore, ensure that correct mobile number is entered, and it is verified before finally submitting nomination to the Registry.
  • On the day a given case is listed before the Court, nominated entries can be edited or changed till 09.00 am.

For e-Application for Special Hearing Entry Pass

  • AOR or Appearing Counsel or Arguing Counsel or Registered Clerk shall click on Special hearing entry pass link available on the official website Supreme Court of India.
  • Person nominated for special hearing and physical appearance before the Supreme Court of India shall enter his mobile number. If his number is registered by concerned AOR he shall receive OTP. If OTP is not received the concerned may contact respective AOR.
  • Photo ID uploaded while generating entry pass will be physically verified while permitting entry Photo ID is required for identification of the nominated person as Advocate or registered Clerk, as may be the case.
  • If on a particular day, appearance is to be marked in more than one case, multiple passes are required to be generated for that day. For each item number listed before the Court, a separate pass is required. Accordingly, one has to check schedule for the day and generate all passes listed for that day before the various Courts.
  • Before physically entering/ visiting the Supreme Court premises, the entrants have to mandatorily sign self-declaration form about fitness and good health ruling out possibility of self-infection

For e- Submission of Self-declaration Form

Any person or Advocate seeking to enter / visit the premises of the Supreme Court by generating Special Hearing Entry Pass, is mandatorily required to Sign in Selfdeclaration form. Self-declaration is to be signed in by entering OTP sent on registered mobile number only on the day of visit.

To download the user manual, click here.


Also read

SOP for limited physical hearings amidst COVIS-19 pandemic

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Siddhartha Varma and Ajit Kumar, JJ., while addressing the matter observed that the following rule, “Two individuals should remain two yards away and wear masks” seems to be an empty shibboleth coined by the Government.

Court furthering its observations stated that neither the government is looking interested in implementing the above rule nor the people of Uttar Pradesh are interested in following the said rule.

Shops are surrounded by people without complying with the norm of social distancing of two yards.

Advocate, Ram Kaushik, brought certain photographs on record from which it is certain that Unlock-1, 2 and 3 have been misunderstood by the people of Uttar Pradesh.

Either the people have not been told to maintain social distancing or they have chosen to flagrantly violate the principle of maintaining social distance.

Shopkeepers will have to be told that crowding at their shop would be of no help and even may invite coercive measures against them.

Hence, police along with the District Administration will have to see that people who crowd at shops should queue up with a distance of two yards in between two individuals.

“Nagar Nigam Administration is not only proceeding at a snail’s pace but it has mostly remained a passive spectator of the encroachment activities in various parts of the city.”

Also, it can be then expected for social distancing norms to be followed in letter and spirit, if such unauthorised encroachers are permitted to carry out commercial activities in every nook and corner of the city.

Further, the Government is coming up with various data to show that things are under its control but newspaper reports are not very encouraging. There are complaints that people, though have been tested for COVID-19 but have not yet received their reports even after a lapse of two or more weeks.

Chief Medical Officer has been directed to file an affidavit stating the pending COVID-19 reports already tested and reports received and delivered date-wise from 20th July, 2020 till 5th August, 2020.

Bench also added to its observations that, the rule of maintaining 2 yards distance has to go on till the time there is either a cure of the Corona Virus or there is a vaccine for the general public.

Court issued the following directions:

  • State Authorities to see vigorously that no two individuals in public remain within a distance of two yards from each other.
  • If any public place is found where people fail to maintain a distance of two yards from each other then the owner of the premises, where the violation of this Rule is found, should be brought to book and the premises should be closed down.
  • If policemen etc. are not enforcing rules of distancing then action should be taken against them.
  • If there is crowding seen at O.P.Ds of hospitals, Nursing Homes and Clinics then action must be taken against them.
  • If within an hour of the starting of the functioning judicial institutions, it is found that crowding is happening and physical distancing is not being maintained by individuals on whose shoulders the judicial institutions function then the Bar Association, the Registry and the District Administration should step in and see that proper physical distancing is maintained.
  • Administration to remove all encroachments within the time limit as was provided to the Nagar Nigam by the Court at an earlier date.
  • No pillion riders except a couple on two-wheelers are to be seated unless there is an extreme urgency.

Matter to be listed on 07-08-2020. [Inhuman Condition at Quarantine Centers and for Providing Better Treatment to Corona Positive v. State Of U.P., 2020 SCC OnLine All 901, decided on 05-08-2020]

Case BriefsCOVID 19Foreign Courts

Supreme Court of The United States (SCOTUS): In a 5:4 decision, the majority  comprising of John G. Roberts Jr., Chief Justice, and Stephen G. Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, Elana Kagan, JJ., denied permission to Calvary Chappel, a Nevada church, to hold services on the same terms which were allowed by the State Directive to casinos and certain other facilities. However, strong dissent was registered by the remaining Judges on the Bench – Clarence Thomas, Brett Kavanaugh, Samuel Alito, and Neil Gorsuch, JJ.
The application by the Church for injunction was denied by the Court in a single sentence:
“The application for injunctive relief presented to Justice Kagan and by her referred to the Court is denied.”
Alito, J. ( joined by Thomas and Kavanaugh, JJ. in his dissent) observed:

“Constitution guarantees the free exercise of religion.”

Constitution says nothing about the freedom to play craps or black-jack, to feed tokens into a slot machine, or to engage in any other game of chance.

The dissenting Judges were of the view that:
The State of Nevada in view of the directive has discriminated in favor of the powerful gaming industry.

Attendance at Religious Services (the State Directive)

Governor of Nevada issued a directive that severely limits attendance at religious services. 

According to the directive, it has been stated that a church, synagogue or mosque regardless of its size may not admit more than 50 persons but casinos and certain other favored facilities may admit 50% of their maximum occupancy.


Calvary Chapel Dayton

The said church wished to host worship services for about 90 congregants with all the precautions being adhered to. But hosting the said worship service would violate the Directive 21 issued by Nevada Governor.

Meanwhile, the directive caps a variety of secular gatherings at 50% of their operating capacity, meaning that they are welcome to exceed, and in some cases far exceed, the 50-person limit imposed on places of worship.

Citing the heterogenous treatment, Calvary Chapel sought injunction allowing it to conduct services in accordance with its plan stating the adherence of all the measures required in view of COVID-19 Pandemic.

Disparate Treatment

Though the relief was denied, the dissenting Judges were of the view that at the outset of an emergency, it may be appropriate for Courts to tolerate very blunt rules that imposed unprecedented restrictions on personal liberty, including the free exercise of religion. That is what has happened thus far. But State certainly has not shown that church attendance under Calvary Chapel’s plan is riskier than what goes on in casinos.

Carte Blanche

A public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists.

The dissenting Judges noted that the problem is no longer one of exigency, but one of considered yet discriminatory treatment of places of worship.

While the directive’s treatment of casinos stands out, other facilities are also given more favorable treatment than houses of worship.

“…while Calvary Chapel cannot admit more than 50 congregants even if families sit six feet apart, spectators at a bowling tournament can sit together in groups of 50 provided that each group maintains social distancing from other groups.”

The directive blatantly discriminates against houses of worship and thus warrants strict scrutiny under the Free Exercise Clause.

Observations of dissenting Judges:
Alito, J., who was joined by Thomas and Kavanaugh, JJ., placing a dissenting opinion, stated that preventing congregants from worshipping will cause irreparable harm, and the State has made no effort to show that Calvary Chapel’s plans would create a serious public health risk.

He suggested, the idea that “allowing Calvary Chapel to admit 90 worshippers presents a greater public health risk than allowing casinos to operate at 50% capacity is hard to swallow”: For casinos, operating at 50% is likely to mean thousands of people, standing close together and drinking alcohol, which requires them to take off their masks.

Gorsuch, J.,  dissenting from denial of application for injunctive relief, stated that,

“In Nevada, it seems, it is better to be in entertainment than religion.”

But the 1st Amendment prohibits such obvious discrimination against the exercise of religion.

“…there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”

Kavanaugh, J., adding to Alito, J.’s dissent, stated that Nevada’s discrimination against religious services violates the Constitution.

Risk of COVID–19 transmission is at least as high at restaurants, bars, casinos, and gyms as it is at religious services. Indeed, people congregating in restaurants, bars, casinos, and gyms often linger at least as long as they do at religious services. And given the safety measures that Calvary Chapel and other places of worship are following—including social distancing, mask wearing, and certain additional voluntary measures—it is evident that people interact with others at restaurants, bars, casinos, and gyms at least as closely as they do at religious services.[Calvary Chapel Dayton Valey v. Steve Sisolak, Governor of Nevada, 591 US __ (2020), decided on 24-7-2020]

Hot Off The PressNews

Karnataka High Court directs the State officials to conduct Karnataka Common Entrance Test (CET) exam as per the schedule. No student should be prevented for appearing the exam.

Bench denied to grant interim relief in terms of postponing or cancelling the exam, scheduled to be held on July 30, 31 and August 1, 2020.

Court in it’s yesterday’s Order had directed the Karnataka State government to reconsider the advisability of conducting the Karnataka Common Entrance Test (KCET) 2020 on July 30th, 31st and 1st August in light of the rising number of Covid-19 cases.

High Court has stated  that no Covid positive student should be denied opportunity of writing the examination just because documents are not provided. Authorities shall make sure that conditions in the SOP issued by the Union Ministry of Health and the SOP of state from time to time are scrupulously followed by all.

Authorities to provide transportation to needy students and all logistical support, especially to students and parents from containment zones.

Yesterday’s Decision

The Court passed the order after considering the pleas in three different petitions, all of which sought to have directions issued by the Court ordering the state government to postpone the CET. It was contended that considering the onslaught of the ongoing pandemic, conducting a physical examination was arbitrary and would jeopardize the health of the students, and conducting the same under these circumstances would amount to a violation of their fundamental rights under Article 14, since students in containment zones would not have equal opportunities of attending the exam resulting in a violation of their right to equality, and Article 21.

The Bench observed that more than 5000 new cases had been reported daily in the state in the past fortnight, with 1500 cases emerging daily in Bangalore alone, which has over 5000 containment zones. Since the government SOP prohibits the inhabitants of containment areas from travelling outside and considering that public transport would not be readily available either, the Bench duly noted that there would be a probability of students missing out on the exams.

*The above report has been prepared based on news reports.


Read the detailed Case brief, here:

KCET 2020 | Kar HC | No candidate shall be prevented from attending examination scheduled to be held from 30th July, 2020 [Detailed Brief]

 

Case BriefsCOVID 19High Courts

Allahabad High Court: The Division Bench of Sunita Agarwal and Saumitra Daya Singh, JJ., granted partial relief to the petitioners booked for violating social distancing norms while distributing food packets.

Petitioners sought quashing of the First Information Report registered for offences under Section 188 and 269 Penal Code, 1860.

The allegation in the FIR is that the protocol of social distancing has not been followed by the crowd of 8-10 people who were at a public place and the petitioners against whom the FIR has been filed were members of the said crowd.

Bench on noting the above facts and circumstances, stated that it does not find any allegation of an untoward incident happening.

Further the Court added that, there is no doubt that the denizens of the city are under obligation to follow the protocol of social distancing in collective fight of the country with pandemic Covid-19. Every person is responsible to be aware of the protocol and see that other follow it strictly.

However, in Court’s opinion, restraining the said persons who for some reason violated the protocol of social distancing may further aggravate the Corona crisis.

“Create awareness and consciousness amongst people rather than putting them in jails or lockups which are already over crowded.”

Petitioners stand is that they were distributing the food packets amongst the poor persons in the locality during the lockdown and in the course of the said distribution suddenly some people were collected on the spot.

Thus, Court held that the petitioners should be granted one opportunity to mend themselves and in therefore they shall file an undertaking stating that they will follow all norms and protocol of COVID-19 and will not breach them in future.

“petitioners shall not be arrested in the aforesaid case till submission of the police report under Section 173(2) Cr.P.C. provided they cooperate with the investigation.”

In view of the above, petition was disposed of. [Munna v. State of U.P., 2020 SCC OnLine All 810 , decided on 19-06-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and Surendra P. Tavade, JJ. dismissed the application filed by an Air India Pilot seeking direction to Directorate General of Civil Aviation (“DGCA”) and Airline carriers to leave middle seat vacant while flying passengers as a measure of social distancing for prevention against COVID-19 virus. 

The application was dismisses by the High Court relying on the recommendations of the High Level Committee of Experts constituted by the DGCA to meet and recommend certain safety measures to be followed on flights.

Earlier, on 22nd May, the High Court had directed the airlines to follow the DGCA Circular of 23rd March wherein it had recommended that the middle seats in the aircraft should be left vacant while flying passengers in unscheduled flights under the Vande Bharat programme aimed at bringing back Indians stranded abroad. After the High Court’s order, the respondents had approached the Supreme Court which, on 25th May, had directed that the airlines could operate without leaving the middle seat vacant upto 6th June and thereafter in compliance with the order to be passed by the High Court. The Supreme Court had also asked the High Court to consider the aspects of safety of passengers in scheduled as well as unscheduled flights. It had also directed that the DGCA is free to alter any norms in the interest of public health and safety of passengers.

The DGCA, thereafter, constituted a High Level Committee of Experts to meet and recommend safety measures to be followed on flights. The Expert Committee comprised: (i) Rajesh Bhushan, OSD, Ministry of Health and Family Welfare, Government of India; (ii) Dr Randeep Gulera, Director, AIIMS, New Delhi; (iii) Prof Balram Bhargava, DG, ICMR; and (iv) Dr Naresh Trehan, CMD, Medanta-Medicity.

The Expert Committee deliberated on the issue and gave its recommendations, pursuant to which, the DGCA passed an order on 31st May 2020 issuing the recommendations of the Expert Committee as directions of the DGCA.

The Expert Committee had noted that a “face mask worn by two persons in proximity with each other minimises the risk of transmission due to droplets from mouth/nose”. It noted that an “efficient air conditioning system” minimised the risk of transmission through the air and recommended that aircrafts which use “HEPA filters which are effective in screening out various microbes” could be operated in a manner that “replacement of air is very frequent”. The Committee further noted that “if the person sitting in between two persons is wearing a protective gear then the same effect as keeping the seat vacant can be achieved”. After detailed deliberations, the Expert Committee also recommended that if the passenger load and seat capacity permit, then “the airlines shall allot the seats is such manner that the adjacent seat is kept vacant”. If the number of passengers was more, “members of the same family (living in the same house) can be allowed to sit together”, since they would be exposed to each other at home in any case.

Before the High Court, the DGCA also submitted that the Circular dated 23rd March 2020 was issued on an urgent basis in the wake of outbreak of COVID-19 without carrying out any expert consultation. It was informed that thereafter the Air Transport Facilitation Committee meeting was held on 4th May where social distancing on flights was discussed and rejected.

Having considered the Expert Committee recommendations, the High Court moved on to considering the submissions made by the petitioner. However, the petitioner failed to assist the Court in determining how the safety/health of passengers qua COVID-19 virus is affected if airlines fail to keep the middle seat vacant. The Court stated that the petitioner failed to appreciate that even if the middle seat is kept vacant, the person sitting at the window seat whilst getting out for going to lavatory and thereafter returning back to his seat, is likely to touch (through his clothes) the person sitting on the aisle seat. Therefore, if petitioner’s argument was to be accepted, in every row of the aircraft only one passenger should be accommodated. The Court observed:

“We cannot allow an individual to instill such fear in the minds of the public, without any scientific basis,”

The High Court relied on the Supreme Court decisions in Basavaiah v. H.H. Ramesh, (2010) 8 SCC 372; Union of India v. CIPLA, (2017) 5 SCC 262 and Hanuman Laxman Aroskar v. Union of India, 2020 SCC OnLine SC 41 for the proposition that the Expert Committee recommendations can only be set aside if they are shown to be arbitrary, discriminatory, unreasonable or ultra vires. In the instant case, the Court found nothing in the minutes of the Air Transportation Facilitation Committee or in the recommendations of the Expert Committee, which could be termed as arbitrary, discriminatory, unreasonable or ultra vires.

Reliance was also placed upon Academy of Nutrition Improvement v. Union of India, (2011) 8 SCC 274, wherein the Supreme Court had held that the scope of review in matters concerning public health is very limited.

In view of the aforementioned, the Court was of the prima facie view that the safety and health of the passengers on board the aircraft qua COVID-19 virus is adequately taken care of even if the middle seat of the aircraft is not kept vacant on account of passenger load and seat capacity.

It was directed that all flight operators in the country shall strictly follow and implement the DGCA Order dated 31st May 2020 as well as applicable SOPs.

The interim application was disposed of in above terms. [Deven Yogesh Kanani v. DGCA, 2020 SCC OnLine Bom 714 , dated 15-6-2020]

COVID 19Hot Off The PressNews

Shopping malls get frequented by large number of people for shopping, entertainment and food. To prevent spread of COVID-19 infection, it is important that required social distancing and other preventive measures are followed.

Shopping malls in containment zones shall remain closed. Only those outside containment zones will be allowed to open up.

All shopping malls shall ensure the following arrangements:

i. Entrance to have mandatory hand hygiene (sanitizer dispenser) and thermal screening provisions.

ii. Only asymptomatic customers/visitors shall be allowed.

iii. All workers/customers/visitors to be allowed entry only if using face cover/masks. The face cover/masks has to be worn at all times inside the shopping mall.

iv. Posters/standees/AV media on preventive measures about COVID-19 to be displayed prominently.

v. Staggering of visitors to be done, if possible.

vi. Adequate manpower shall be deployed by Mall Management for ensuring social distancing norms.

vii. All employees who are at higher risk i.e. older employees, pregnant employees and employees who have underlying medical conditions, to take extra precautions. They should preferably not be exposed to any front-line work requiring direct contact with the public. Shopping Mall management to facilitate work from home wherever feasible.

viii. Proper crowd management in the parking lots and outside the premises – duly following social distancing norms shall be ensured.

ix. Valet parking, if available, shall be operational with operating staff wearing face covers/ masks and gloves as appropriate. A proper disinfection of steering, door handles, keys, etc. of the vehicles should be taken up.

x. Any shops, stalls, cafeteria etc., outside and within the premises shall follow social distancing norms at all times.

xi. Specific markings may be made with sufficient distance to manage the queue and ensure social distancing in the premises.

xii. Preferably separate entry and exits for visitors, workers and goods/supplies shall be organized.

xiii. The staff for home deliveries shall be screened thermally by the shopping mall authorities prior to allowing home deliveries.

xiv. Required precautions while handling supplies, inventories and goods in the shopping mall shall be ensured. Proper queue management and disinfection shall be organized.

xv. Maintaining physical distancing of a minimum of 6 feet, when queuing up for entry and inside the shopping mall as far as feasible.

xvi. Number of customers inside the shop to be kept at a minimum, so as to maintain the physical distancing norms.

xvii. Seating arrangement, if any, to be made in such a way that adequate social distancing is maintained. xviii. Number of people in the elevators shall be restricted, duly maintaining social distancing norms.

xix. Use of escalators with one person on alternate steps may be encouraged.

xx. For air-conditioning/ventilation, the guidelines of CPWD shall be followed which inter alia emphasises that the temperature setting of all air conditioning devices should be in the range of 24-30oC, relative humidity should be in the range of 40-70%, intake of fresh air should be as much as possible and cross ventilation should be adequate.

xxi. Large gatherings/congregations continue to remain prohibited.

xxii. Effective and frequent sanitation within the premises shall be maintained with particular focus on lavatories, drinking and hand washing stations/areas.

xxiii. Cleaning and regular disinfection (using 1% sodium hypochlorite) of frequently touched surfaces (door knobs, elevator buttons, hand rails, benches, washroom fixtures, etc.) to be made mandatory in all malls in common areas as well as inside shops, elevators, escalators etc.

xxiv. Proper disposal of face covers / masks / gloves left over by visitors and/or employees should be ensured.

xxv. Deep cleaning of all washrooms shall be ensured at regular intervals.

xxvi. In the food-courts:

a. Adequate crowd and queue management to be ensured to ensure social distancing norms.

b. In food courts and restaurants, not more than 50% of seating capacity to be permitted.

c. Food court staff / waiters should wear mask and hand gloves and take other required precautionary measures.

d. The seating arrangement should ensure adequate social distancing between patrons as far as feasible.

e. Contactless mode of ordering and digital mode of payment (using e-wallets) to be encouraged.

f. Tables to be sanitized each time customer leaves.

g. In the kitchen, the staff should follow social distancing norms at work place.

xxvii. Gaming Arcades shall remain closed.

xxviii. Children Play Areas shall remain closed.

xxix. Cinema halls inside shopping malls shall remain closed.

xxx. In case of a suspect or confirmed case in the premises:

a. Place the ill person in a room or area where they are isolated from others.

b. Provide a mask/face cover till such time he/she is examined by a doctor.

c. Immediately inform the nearest medical facility (hospital/clinic) or call the state or district helpline.

d. A risk assessment will be undertaken by the designated public health authority (district RRT/treating physician) and accordingly further action be initiated regarding management of case, his/her contacts and need for disinfection.

e. Disinfection of the premises to be taken up if the person is found positive.

Read the detailed notification here.


Ministry of Health and Family Welfare

SOP dt. 04-06-2020][

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Anil Kumar and Manish Mathur, JJ.,took cognizance of the Public Interest Litigation petition filed seeking enforcing of guidelines on social distancing and sanitisation in UP jails.

Petitioner sought direction to respondents to take proper steps and arrangements to ensure the meeting of inmates with their deponents, family members, friends and lawyers while insuring the guidelines of social distancing and proper sanitization in order to protect the fundamental Rights of the inmates.

Another direction that petitioner wanted to be directed to the respondents was to devise a mechanism to ensure social distancing and sanitization norms alongwith other safety measures so as to prevent the spread of COVID-19 in Jails of Uttar Pradesh.

S.K. Singh and Anand Shikhar, Counsels for the respondents submitted that the present PIL is not maintainable and need a period of 10 days for filing the counter affidavit.

Matter to be listed on 15th June, 2020.[Shivam Pandey v. State of U.P., 2020 SCC OnLine All 695 , decided on 29-05-2020]

COVID 19Hot Off The PressNews

Travellers coming to India from international flights have to undergo 14 days quarantine which includes 7 days paid institutional quarantine and 7 days home quarantine. Exemptions have been given to certain categories of passengers in certain cases[1].

For domestic air travel, MHA requires passengers to undergo home quarantine for 14 days[2] however states are free to make their own protocol for passengers entering their state.

The protocol made by states is as follows:

  1. Andhra Pradesh: Passengers travelling to Andhra Pradesh are required to undergo quarantine for 14 days at home or at a government facility. If coming from Delhi, Chennai, Mumbai, Gujarat, Rajasthan and MP then 7 days institutional quarantine followed by home quarantine has to be followed[3].
  2. Assam: Assam requires passengers to undergo 7 days institutional quarantine followed by 7 days of home quarantine[4].
  3. Bihar: Domestic passengers, who are asymptomatic after reaching the airport will not be quarantined[5].
  4. Chandigarh: The Union Territory of Chandigarh requires no quarantine[6].
  5. Chattisgarh: A period of 14 days isolation is required by the state. This could be in a hotel, government facility or at home[7].
  6. Delhi: Asymptomatic passengers have to undergo home isolation for 14 days. Symptomatic passengers will be taken for institutional quarantine[8].
  7. Goa: The Government of Goa has given three options. Produce a COVID negative test from an ICMR authorized lab, get a test done for Rs 2000 or stay in home quarantine after being stamped[9].
  8. Haryana: The Gurgaon administration mandates 14 day home quarantine[10].
  9. Himachal Pradesh: In Himachal Pradesh, it is mandatory to undergo 14 days institutional quarantine for those who are coming from the red zone.[11] Passengers from the green/orange zone will be sent to home quarantine after screening[12].
  10. Jammu and Kashmir: Passengers are required to undergo 14 days of institutional quarantine after a compulsory COVID Test.[13]
  11. Jharkhand: 14 days home quarantine is mandatory.[14]
  12. Karnataka: Karnataka had made different rules for people coming from different states. Passengers coming from Maharashtra, Gujarat, Delhi, Rajasthan, Madhya Pradesh and Tamil Nadu have to undergo 7 day institutional quarantine followed by 7 days of home isolation. Passengers coming from other states have to quarantine at home for 14 days.[15]
  13. Kerala: Kerala requires incoming passengers to undergo 14 day isolation at home from the date of arrival.[16]
  14. Madhya Pradesh: In MP, passengers showing symptoms will be sent to either COVID care centre or dedicated COVID-19 hospital or institutional quarantine facility for 10 days.[17] After 10 days, if such a passenger shows no symptoms for another three days then the person can be discharged but will have to stay in home quarantine for 7 days.[18]
  15. Maharashtra: Passengers are required to undergo 14 day home isolation.[19]
  16. Mizoram: Covid test and mandatory quarantine for 14 days. Permission has to be taken before returning to the state.[20]
  17. Nagaland: For passengers from green and orange zones, 14 days home quarantine is required. For passengers returning from red zones, 14 days institutional quarantine followed by 14 days home quarantine is required.[21]
  18. Odisha:  Those returning to urban areas will undergo home isolation for 14 days. Those returning to rural areas will undergo 7 days institutional isolation and 7 days home isolation.[22]
  19. Punjab: The state of Punjab requires travellers to undergo 14 day home isolation[23]
  20. Rajasthan: Home quarantine for 14 days has to be followed.[24]
  21. Tamil Nadu: 14 days isolation at home[25]. Institutional quarantine for those who don’t have this facility at home. Passengers coming to Tamil Nadu have to obtain an e-pass.[26]
  22. Telangana: Symptomatic passengers would be taken to Covid hospital, rest can go home.[27]
  23. Uttar Pradesh: UP mandates 14 days home quarantine. Those who are on business visit are exempted but they have to give details of the place where they will be staying and can stay upto 7 days. The passengers coming to UP also need to register. The details are given in the footnote below.[28]
  24. Uttarakhand: Passengers will be kept in institutional quarantine for a time period as specified by state govt unless they show symptoms which require quarantine in medical facilities.[29]
  25. West Bengal: Asymptomatic passengers can self quarantine at home for 14 days and symptomatic passengers will be tested and taken to institutional centres[30].
  26. Lakshadweep: People returning to Lakshadweep will be quarantined in Kochi, Kerala for 7 days. This will be followed by testing and on testing negative the passengers will be allowed to return. On returning to the island, they will again be quarantined for 14 days.[31]
  27. Dadar and Nagar Haveli and Daman & Diu: Institutional quarantine for 14 days.[32]
  28. Andaman and Nicobar: Only symptomatic passengers will need to undergo quarantine in COVID care centres.[33]
  29. Meghalaya: All passengers will be tested and kept in institutional quarantine upto 48 hours till results come.[34]

The rules will keep getting added and modified as states update their rules.


[1] https://twitter.com/MoCA_GoI/status/1264494489592160256/photo/1

[2] Pages 1-6  https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOPs_of_states.pdf

[3] Pages 12-13 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOP-central.pdf

[4] https://covid19.assam.gov.in/wp-content/uploads/2020/05/1-4.pdf, (pages 18-23) https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOP-central.pdf

[5] https://timesofindia.indiatimes.com/city/patna/19-flights-to-resume-operations-tomorrow/articleshow/75925062.cms

[6] https://indianexpress.com/article/cities/chandigarh/chandigarh-13-domestic-flights-to-take-off-from-chandigarh-from-today-6425841/

[7] Pages 31-33 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOPs_of_states.pdf

[8] Pages 1-2 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOP-central.pdf

[9] Pages 14-15 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOP-central.pdf

[10] Guidelines for domestic travel air/train/inter-state bus travel – ’25/05/2020′ https://haraadesh.nic.in/

[11] Pages 13-15 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOPs_of_states.pdf

[12] Himachal Pradesh State Disaster Management Authority, Circular No. Rev (DMC) (c) 20-2/2020-COVID 19. Dated 23.05.2020

[13] Circular No. 27-JK (DMRRR) of 2020. Dated 23.05.2020. https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOP-central.pdf (Page 3-4)

[14] https://www.republicworld.com/india-news/general-news/jharkhand-mandates-14-day-home-quarantine-for-incoming-air-passengers.html

[15] Pages 69-91 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOPs_of_states.pdf

[16] Pages 92-96 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOPs_of_states.pdf

[17] Circular IDSP/2020/435 Dated 23.05.2020

[18] Page 29-30 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOPs_of_states.pdf

[19] https://www.ndtv.com/india-news/coronavirus-lockdown-maharshtra-issues-new-rules-sop-for-passengers-flying-into-mumbai-2234935

[20] https://nenow.in/health/mizoram-govt-issues-sop-for-people-arriving-at-airport.html

[21] Pages 65-68 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOPs_of_states.pdf

[22] Office of Special Relief Commissioner, Government of Odisha, Circular No. 2902/ R&D (DM), dated 24.05.2020. Pages 39-41 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOPs_of_states.pdf

[23] Page 5 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOP-central.pdf, Page 23 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOPs_of_states.pdf

[24] Pages 16-17 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOP-central.pdf

[25] https://cms.tn.gov.in/sites/default/files/go/hfw_e_219_2020.PDF, https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOP-central.pdf (pages 6-7)

[26] https://twitter.com/chennaicorp/status/1264886449448591361

[27] https://www.outlookindia.com/newscroll/no-quarantine-in-telangana-for-domestic-travellers-without-covid-symptoms/1845035

[28] https://twitter.com/ANINewsUP/status/1264511207878225920

[29] https://twitter.com/ANI/status/1264536617663950849, Pages 17-19 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOPs_of_states.pdf

[30](Pages 6-7) https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOP-central.pdf

[31] Disaster Management Authority, Lakshadweep Administration, Circular no. F-21/7/2020-COL. Pages 43-50 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOPs_of_states.pdf

[32] Pages 51-52 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOPs_of_states.pdf

[33] Pages 53-58 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOPs_of_states.pdf

[34] Page 61-64 https://www.goindigo.in/content/dam/indigov2/6e-website/banners/2020/SOPs_of_states.pdf

COVID 19Hot Off The PressNews

Guidelines for domestic travel (air/train/inter-state bus travel)

1) Dos and Don’ts shall be provided along with tickets to the travellers by the agencies concerned.

2) All passengers shall be advised to download Arogya Setu app on their mobile devices.

3) Suitable announcement about COVID-19 including precautionary measures to be followed shall be made at airports/railway station/bus terminals and in flights/trains/bus.

4) The States/UTs shall ensure that all passengers shall undergo thermal screening at the point of departure and only asymptomatic passengers are allowed to board the flight/train/bus.

5) During boarding and travel, all passengers shall use face covers/mask. They will also follow hand hygiene, respiratory hygiene and maintain environmental hygiene.

6) At airports/railway stations/ bus terminals required measures to ensure social distancing shall be taken.

7) Airports/railway stations/bus terminals should be regularly sanitized/disinfected and availability of soaps and sanitizers shall be ensured.

8) Thermal screening at exit point shall be arranged.

9) Asymptomatic passengers will be permitted to go with the advice that they shall self-monitor their health for 14 days. In case, they develop any symptoms, they shall inform the district surveillance officer or the state/national call center (1075).

10) Those found symptomatic will be isolated and taken to the nearest health facility. They will be assessed for clinical severity at the health facility.

11) Those having moderate or severe symptoms will be admitted to dedicated COVID Health facilities and managed accordingly.

12) Those having mild symptoms will be given the option of home isolation or isolated in the Covid Care Centre (both public & private facilities) as appropriate and tested as per ICMR protocol available at https://www.mohfw.gov.in/pdf/Revisedtestingguidelines.pdf.

If positive, they will continue in COVID Care Centre and will be managed as per clinical protocol.

If negative, the passenger may be allowed to go home, isolate himself/herself and self monitor his/her health for further 7 days. In case, any symptoms develop they shall inform the district surveillance officer or the state/national call center (1075).

NOTE: States can also develop their own protocol with regards to quarantine and isolation as per their assessment.


Ministry of Health and Family Welfare

[Press Release dt. 24-05-2020]

COVID 19Hot Off The PressNews

Registrar General of Delhi High Court acceded to the proposal of Providing access to Lawyers to their respective chambers situated in three Lawyers’ Chambers Block of Delhi High Court.

The access is permitted with the following conditions and safeguards:-

  • Access shall be limited to one lawyer per chamber (or two per chamber where chamber is on twin sharing basis) with one assistance or one junior.
  • The timings for the access and use of chamber shall be from 10.00 am to 12.00 noon (morning phase) and from 2.00 pm to 4.00 pm (afternoon phase). Layover period be used by housekeeping agencies for sanitization and deep cleaning of the use portions of the building.
  • No intern or client shall be permitted access in the chambers.
  • The entry and exit of all users/visitors be properly documented, monitored and regulated by DHCBA. For the purpose of regulating entry and exit, one of the office bearers of DHCBA shall remaining present in every opened block to ensure compliance of the approved plan.
  • A report be submitted after two weeks by DHCBA so that situation is access and reviewed in the next meeting.
  • Entry of the vehicles shall be only from Gate No. 7 till further orders.
  • All vehicles shall be parked in the main surface parking. Drivers shall remain in the parking area only.
  • Sanitizers and handheld body temperature scanners be put to use at entrance of all such blocks.
  • Proper face masks shall be mandatory for all such visiting advocate etc.
  • No kiosk facility for tea, coffee etc. or ancillary services in any chamber block shall be opened till further orders.
  • No common use areas like Bar, Consultation Room etc. be opened for use. Only the toilets for the floor(s) to be used shall be opened.
  • Lift facility shall be provided only to the floor(s) in use and shall be used only by two persons at a time. It be primarily used by those who are unable to climb stair for any reason. Appropriate notice be passed by DHCBA outside lifts for due compliance.
  • For proper garbage disposal, every chamber-user shall ensure that garbage is properly disposed of in closed plastic bag in the dustbin provided for in every floor.
  • Where there are multiple staircases, the signages be put indicating one-way use to prevent persons coming face to face.
  • Persons allowed access shall avoid visiting other chambers.
  • Information of the above be disseminated by a public notice on the website of this Court.
  • The DHCBA shall issue necessary advisory about the manner of use of chambers while also requesting elderly members of the Bar to avoid coming to Court till further orders.

Access the Public Notice here: NOTICE


Delhi High Court

[Notice dt. 18-05-2020]

COVID 19Op EdsOP. ED.

Whether the remote hearings are on an online dispute resolution (ODR) platform, or  e-courts hearing the urgent reliefs; there are very many loopholes that the Indian legal system is going through currently. And I will try and throw light on some of them in this article.

All of us are stuck in an unfamiliar and unprecedented situation with coronavirus wrecking hell in our lives. We all know that we are far from finding a solution to this problem. Even if, hypothetically and focussing on a distant silver lining; the lockdown is lifted ; we will still have to voluntarily practice social distancing.

We should not ideally be exposed to public places or places where there are more than say 4 people. And even if there are only 4 people, coming from different places and backgrounds, you don’t know if it’s safe to be amongst them. Accepting this reality, we all know it is going to be difficult for courts to function normally for a long time now. So, we are at the mercy of technology, online dispute resolution and remote hearings to survive and try and normalise the court hearings as much as possible.

However, we are also far from being good and efficient at remote hearings or using online dispute resolution effectively. It’s been almost a month since the courts started hearing urgent cases through remote hearings. Hearing the court experience, and other experiences from platforms and other modes of dispute resolution, this article aims to talk about the practicalities that we need to take into consideration for remote hearings.

Let me start my addressing the technical considerations that one will have to be mindful of:

1. INTERNET BANDWIDTH

The first and foremost hindrance, especially in India will be the internet bandwidth. We are a country which doesn’t have 5G yet. Efforts are being made to reach there, but currently we do not enjoy 5G services.

These days where parents are working from home; also have children who are attending online schools. Both of them use the internet and hence if someone wants to be on a video call using the same wireless internet, it becomes difficult for them. Of course we have our mobile internet to be used as hotspot but does that suffice the bandwidth we need? Now, I’m no engineer or I don’t understand the technicalities of what internet speed we require, but out of personal experience I know that what we have is not enough.

So, amidst lockdown we’re all hooked on the internet and all of us are going to have to be able to deal with the limited resources.

I will give you another example, I was recently attending a webinar hosted by SIAC talking about making the shift to online arbitration. The irony here is that the moderator himself had to leave the session midway because of internet connection issues. Just imagine the contrasting nature of the system wherein you’re talking about online recourse of arbitration and dispute resolution; but you don’t even have the means to explain the instructions online.

In the Indian context where most of the nation is comprised of people in the middle class and upper middle-class strata of society, it is very difficult to suddenly find the technology in order to suffice everybody’s needs.

Internet, as we know is a must to hold video conferencing and we need urgent attention towards that. Giving my own example again, I was speaking at a webinar on this same topic recently and before starting the video call; I made sure my family doesn’t use the WIFI and made them switch to their mobile hotspot so that there are no interruptions at my end for the Webinar.

There will be a lot of similar compromises, in each household when it comes to internet availability and usability in India. And this is one of the core areas that we need to work on.

2. TECHNOLOGICAL ADEPTNESS

When it comes to technological adeptness, the instances of the online court hearings for urgent matters that are currently taking place shall serve as perfect examples.

The Judges are still coming to the court premises in order to attend the hearings. This move still puts them in danger, considering the phase where India is with respect to COVID 19. The Supreme Court notification and guidelines on video conferencing also provides for infrastructure in the Supreme Court for parties and their advocates to utilise if they don’t own or have a laptop, mobile phone or tablet to use. Of course, social distancing is maintained and the parties/advocates are in a different room whereas the Judges are in a different room. But that still puts them in danger. You never know where parties are coming from and what conditions they are living in, whether those conditions are sanitary or not?

And with the recent news coming in from the Supreme Court where in one of the clerks tested positive for COVID, is just another example how dangerous it is for people to still venture out.

However, most people are not technologically adept to hear or appear for matters from the comfortable corners of their home. Either they don’t have the infrastructure or they are not absolutely convinced of the fact that they will be able to handle the video conferencing and the applications by themselves, without any help.

If I give another example, is the situation of Gujarat High Court; wherein sanitization tunnels have been erected so that people who NEED to come to the Court to facilitate the online hearings, can do so without worry. Technological inability is one of the biggest obstructions that we are going to face for remote hearings.

Also, most Judges or adjudicators in a court hearing, arbitration or mediation are generally beyond the age group of 40. Given a specific age group, it is not very easy for them to learn to use technology efficiently. And that shall be a big lacuna, in my understanding. In such a short time, to not only be able to learn the technology but also then master it and use it efficiently; is going to be a big task.

Another issue is that most lawyers use stenographers, and do not type or draft applications by themselves. It is only people currently in their 30s and the generation after that who are able to draft and type on their own devices. If you look at any well-established lawyer in their 40s and beyond; and I apologize in advance for the generalisation; but I am pretty sure that all of them use stenographers.

Where do we get the stenographers in a complete lockdown state, currently? And how do we manage e-filing as well? I have also heard complaints with regards to uploading the applications or petitions via e-filing and that the portal does not provide with ample memory strength. They have a cap of 2MB or 5MB files and sometimes that may be less for voluminous records.

This wave of change, in my humble opinion should not be resisted. However, having said which I absolutely empathise with the generation of lawyers, Judges, arbitrators and mediators who have never used technology and who will have to float above the pressure created by the situation and be able to learn afresh.

While that is also a rosy picture I’ve painted, more often than not, people will have to make real efforts to be able to accept and adapt to this change or learn how to use the computer, from scratch. And this we are talking about people who can easily afford learning. However, what about people with minimum resources who would not be able to even afford the usage of technology? That is a question left unanswered.

Recently the Chairman of Bar Council of India wrote to the Chief Justice of India advising against continuing virtual hearings after the lockdown is lifted. His reason was that most advocates are not able to attend to technology well; and hence unable to be self-sufficient.

We absolutely need a well-rounded approach here to make the entire legal community adept to technological needs that we are facing currently.

3. CHOICE OF PLATFORM

Choosing the correct platform is also an important consideration for remote hearings because confidentiality plays a huge role, for any type of dispute resolution process. All of us have heard and read about what happened to Zoom. The Government of India has now come up with guidelines to make sure that under dire circumstances, even if we use Zoom, then we must ensure taking certain preventive steps so that we do not falter or get our accounts hacked.

Hence, choice of platform is one of the most sensitive considerations to be made while going for remote hearings. Google Meet, I believe is one of the safer alternatives (not a paid promotion).

Having said all of this, we will still have to be very careful in making the correct choice for an appropriate platform taking in mind the safety, security, confidentiality of the proceedings. The Supreme Court uses this app called VIDYO, for their video conferencing and court hearings.

There is also another part of confidentiality wherein people remotely attending hearings have been caught recording the hearings on their phones. This is an absolute breach especially in commercial matters. So, we need to bind people by an oath or we need another way to ensure that such activities happen. But how do we do that? We cannot enter the houses of the ones appearing, except virtually. So how do we ensure that no one is recording these hearings?

These are a few technical considerations,  that made me wonder and ask questions. I also wish to touch upon the considerations that a lawyer representing a client in a hearing or a counsel, should take into account before attending a remote hearing.

  • The foremost thing is the decorum. A counsel needs to make sure to consider this online hearing just as important as personal court appearance. Formal clothes and attire; are not excusable. We all have read about how lawyers were not adhering to the code of conduct and formal dressing while appearing for online hearings. And we need to make sure to consider this with extreme sincerity.
  • Absolute importance should be given to the written submissions. In India especially, more weightage is given to oral advocacy in comparison to sound legal drafting. However, when it comes to remote hearings; the technical glitches possible to occur are high as explained earlier. And hence, the reliance on written statements is bound to increase.

We have fast track arbitrations already in place wherein people tend to only rely on written submissions and oral hearings are seldom conducted. With the world going online and relying more on virtual hearings, it will be preferable for a lot of smaller disputes to adopt fast track arbitrations with focus only on the written submissions.

So, we need to make sure that our drafting is top notch and perfect, without any loopholes. Over the counter citing of case laws and introducing new precedents, at the time of the hearing; will definitely not be allowed anymore. So, one has to carefully draft the written submissions, to ensure that everything needed has been included and its carefully worded as well.

  • Secondly, with respect to oral advocacy, we Indians have the habit of splurging on oral arguments going on for days and days. With remote hearings, we will have to cut short the explanation of each and every point and go ahead with the assumption that the adjudicator/mediator/arbitrator/Judge has read the files thoroughly and that explanation on facts and smaller points is not required.

The counsel also will need to be brief and crisp with their arguments; all the while making sure that you are articulate enough and that everyone concerned can hear and understand you appropriately. Oral advocacy in remote hearings is hence going to be tricky and not the exact same that happens in face to face hearings, especially for the ones who are used to court hearings.

Another point that I need to make here is coupled with my earlier technical consideration of being technologically sound.

Referencing of the written material: Often times you will have to take the Judges through the written material or you’re reading out from the submitted written material. Being able to share those documents online and handholding the Judge through that, is only possible if you know how to share the screen and approach that in the video application, you are using.

Referencing documents and sharing the screen for pointing out the appropriate para or lines is a task that every counsel shall have to learn. In Zoom and most other video conferencing apps, we have the option to share screen and show particular documents to the people in the meeting. So, one has to be prepared with all the documentation and files open in the background to quickly show them across to the Judges/arbitrators in the meeting. It again gets us back to the point of how technologically adept you are to be able to efficiently juggle between these screens and multitask.

Most senior counsel during oral advocacy are habitual with their juniors handing out files and case laws to them. It is highly possible that the same treatment may not be available to them in remote hearings as everyone will be practicing social distancing and each man will be left to their own mercy. Hence, the counsel have to be as aware and adaptive to technology for being able to be articulate in their oral advocacy during remote hearings.

So, oral advocacy in remote hearings is definitely interrelated to how well you are able to operate the video application.

  • Another consideration is the entire concept of instructing counsels and arguing counsel will vanish or will be extremely difficult to survive, when it comes to remote hearings. The instructing counsel cannot discreetly guide or suggest something to the arguing counsel; during the hearing. Which they normally would if face to face. And this applies to all forms of dispute resolution.

How would they manage to do that here?

It will also come down to the fact that except for expertise, there will be just as much effort in mastering the technology by senior counsels. Even preparation by all parties concerned will be increased, because of inability of assistance during the hearing. 

  • Your preparedness will be absolutely visible and so will be your expressions. Unlike the courts or the arbitrations, there will not be a dias or any distance between you and the Judges. Your face will be visible and flashing on their screens; and hence the Judges will be able to read each and every one of your expressions. So, you need to be sure to not give away your bluntness or any of your overt expressions because even when not in the courtroom, utmost respect needs to be paid to the Judges.
  • There is another consideration for counsel during remote hearings; which is witness examination.

Technology availability at the witness’s end and his ability to use that technology, is one of the most important questions to consider. Also being able to prepare the witness well in advance, to be able to show him the relevant documents are going to be tough especially when it comes to doing all of this on video call and not being able to meet face to face.

Often times, our entire cases depend on witness testimony. And if we are not able to prepare the witness well, or the witness is not able to attend to technology well; that can pose as a big hindrance.

So, we will have to rely on the written witness statements more than the oral testimony because of the reasons earlier mentioned. Reiterating the importance of drafting a witness statement.

Indian courts have earlier often taken witness testimony through video conferencing. The most famous case is that of David Headley giving his testimony through video conferencing as he was and currently is in an American prison. He was proven to be an accomplice in the 26/11 terror attacks and hence his testimony was taken by the TADA court through video conferencing.

What I mean to say it is not impossible for us to get through witness examination via video conferencing. There will just be additional challenges, that all of us will have to be more mindful of. The Courts and the arbitral institutions as well as the chambers of commerce conducting ADR hearings will have to provide technological solutions to be able to reach the witnesses easily. Easy access to technology whether it is mobile phones, internet, video calling apps in remote interiors of the country and villages will be needed to get witness examination, at times. And that should be made possible without having to endanger anybody’s lives.

However, gaining the certainty that the witness is not being prompted or not reading out of a script; is a challenge still left to overcome. There is no way one can be aware of the fact that the witness is not being helped in a manner disallowed by court, ordinarily.

These loopholes still remain and are going to be very difficult to find answers or solutions to and hence the only solid way to straighten this discrepancy will be to focus positively on the written testimony than oral.

  • Another consideration is the transcripts:

Will transcribers also join a virtual hearing/meeting? Or do we have inbuilt transcribing softwares in our technology? If yes, are those softwares easily available?

These are obvious questions that come to mind. A lot of us, especially when a part of international arbitrations or complex arbitrations, rely heavily on transcripts. And that is very important for us to receive at the end of every day of the hearing.

If we happen to add transcribers to the virtual hearings, then technical mishaps might also hamper their ability to understand what the arguing counsel is arguing. If there are connection issues for example, they might not be able to hear what the counsel has said and in turn will not be able to add the same on the transcript.

We might need an inbuilt transcription software on to these video conferencing apps for us to be able to get clear transcripts.

However the same are not easily available and  also come with a heavy price tag which shall be a difficult situation for people to purchase, especially for smaller disputes.

We also do not have inbuilt transcription services in any of the popular video conferencing apps, as of now.

The above are certain considerations that all of us should be prepared and mindful of. While I discussed all of this, it may sound like I only focussed on the problems. However, there are many benefits of online and remote hearings as well. And it’s just a matter of time that all parties concerned educate themselves and get themselves adept to technology. We’re also waiting for technological innovation with respect to certain concerns and maybe we will be able to ace the remote hearings, in no time.

I hope we give our undivided attention to get better and learn more during this period; so that we could take advantage of all the innovation once the world gets back to normal; however distant and far that reality may be. Be safe, all of you!


* Arbitration Lawyer, B.Com LL.B (Hons)

COVID 19Hot Off The PressNews

National Directives for COVID-19 Management

  • Compulsory wearing of face cover in public and work places.
  • Spitting in public and work places punishable with fine.
  • Social distancing to be followed in public places and in public transport.
  • Marriage related gathering shall ensure social distancing and maximum number of guests not to be more than 50.
  • Funeral/last rites related gathering shall ensure social distancing and max. number allowed not to be more than 20.
  • Consumption of liquor, paan, gutka, tobacco etc. in public places not allowed.
  • Shops to ensure minimum six feet distance among customers and not more than 5 persons allowed in shops.

Ministry of Home Affairs ORDER

COVID 19Hot Off The PressNews

Ministry of Home Affairs issues  Standard Operating Protocol (SOP), for movement of persons by train.

Standard Operating Protocol (SOP), for movement of persons by train

  • Movement of trains shall be permitted in a graded manner in consultation with MoHFW and MHA.
  • All the specifications with regard to train schedule, protocols for booking, entry and movement of passengers shall be published by Ministry of Railways.
  • Passengers with confirmed e-tickets shall only be allowed to enter the station.
  • MoR shall allow the following at train stations:

— All passengers shall be compulsorily screened and only asymptomatic passengers are allowed to enter/board the train.

— Hand sanitizer at entry and exit points at station and in coaches.

— Passengers shall be wearing face masks/covers at entry and during travel.

  • All passengers will have to observe social distancing.


Ministry of Home Affairs

COVID 19Hot Off The PressNews

For Courts in State of Maharashtra, State of Goa and UT of Dadra and nagar Haveli & Daman and Diu 

In continuation with earlier circulars issued from time to time by the High Court, the Chief Justice and Judges of Administrative Committee have issued the following directions that –

A. The Courts shall function as they are functioning presently i.e. taking up remand work and extremely urgent matters as per guidelines issued in circular dated 16.04.2020 until further orders.

B. The Annual General Transfer of this year is kept in abeyance till April, 2021.

The COVID-19 pandemic requires precautions to be taken by everyone during lockdown and accordingly, it shall be necessary while entering the Court Complex, to take the following precautions in the interest and safety of everyone: –

1. It is advisable for all Advocates, Litigants and members of staff to install the Arogya Setu app on their mobile phones.

2. Identity proofs of Advocates and litigants shall be asked for at the entry point of the Court Complex.

3. A register be maintained at the entry point of the court complex and names of the entrants be recorded in the said register, after verifying due identification.

4. No person shall be permitted to enter the premises of Courts without wearing a mask.

5. Anyone showing signs or symptoms of COVID-19, after his apparent screening, shall not be allowed to enter or remain in the Court rooms. To meet any exigencies, pursuant to anyone found with COVID-19 symptoms, an isolation room shall be earmarked to isolate the said person and undertake the further course of action vis a vis further treatment at Hospital.

6. At the entry point / gates of the Court Complex keep liquid soap and water for hand wash. At the entrance of each Court hall, as far as possible make provision of hand sanitizer.

7. Necessary social distancing shall be maintained during the transaction of the Court business. Wherever there is a provision of lift, it should be ensured that not more than fifty percent of the capacity allowed at a time. As far as possible, the members of the Staff, Advocates and Litigants who are young and not differently abled should be encouraged to make use of stairs for their own safety.

8. The Advocates and Litigants shall be advised to follow strict social distancing while accessing any department of Courts.

9. The Departments shall endeavor to allot a time slot to address any query on the part of Advocates and Litigants and adhere the time slot in consonance with the social distancing mechanism.

10. The Judges and the members of the staff, in the unlikely event of having any symptoms of COVID-19, are requested to immediately report the same to the Medical Center and also the Principal District Judge / Principal Judge and District Registry. Same request is also made to the High Court employees who shall report to the concerned Registrar of their Department.

To access the official Circular, please click on the below link:

CIRCULAR


Bombay High Court

[Circular dt. 04-05-2020]

COVID 19Hot Off The PressNews

Court has decided to open the Courts at Allahabad as well as at Lucknow from 8th May, 2020 in two different shifts having different sessions for criminal as well as civil matters.

The timing for each session shall be from 10.30 am to 12.30 pm and from 1.30 pm to 3.30 pm. While making the Courts operational all protocol pertaining to social distancing shall be maintained.

The arrangement aforesaid shall remain in currency till further orders.

All fresh matters may be filed manually as well as by electronic mode for taking up fresh matters. No need shall be there to file any urgency application.

Other necessary modalities for smooth functioning of the system shall be settled by the Hon’ble Chief Justice, subsequently.

To access the Notice, please click the below link:

NOTICE


Allahabad High Court

[Order dt. 04-05-2020]

COVID 19Hot Off The PressNews

Ministry of Home Affairs (MHA), on 15.04.2020, had issued an order to exempt certain activities under the consolidated revised guidelines to fight COVID-19, in certain areas not included in hotspots/containment zones.

(https://www.mha.gov.in/sites/default/files/MHA%20order%20dt%2015.04.2020%2C%20with%20Revised%20Consolidated%20Guidelines_compressed%20%283%29.pdf)

Along with these guidelines, National Directives for COVID-19 Management and Standard Operating Procedure (SOP) for social distancing and hygiene measures to be followed by offices, workplaces, factories and other establishments have also been specified. The workplaces and industrial and commercial establishments are required to follow these guidelines, as well as standard health protocols as notified by Ministry of Health and Family Welfare (MoHFW).

Some apprehensions, based on wrong interpretation of the guidelines, have been raised in the media and by some companies having manufacturing facilities. Some of these are as under:

  • States may take legal action, including imprisonment of CEO, in case a COVID-19 positive employee is found in the factory.
  • In Such a situation, the premises of the factory would be sealed for 3 months.
  • In case of non-compliance of precautionary measures, the factory may be closed down for 2 days and may be allowed to restart after full compliance.

It is clarified that there is no such clause in the consolidated revised guidelines and therefore there is no basis for such misplaced apprehensions.

It is further clarified that the activities allowed under the consolidated revised guidelines dated 15.04.2020 have subsumed all the earlier activities that were permitted under the earlier guidelines issued on 24.03.2020 (including those permitted under the addendums), in addition to certain new activities that have also been permitted. Hence, the consolidated revised guidelines do not curtail the exemptions already provided earlier, unless the exempted activity falls within a containment zone.

Therefore, no separate/ fresh permissions are required from authorities for industries already permitted to operate prior to 15.04.2020, in areas falling outside containment zones.

It is emphasized that subject to compliance with the SOP on social distancing, no fresh license or statutory approval is required for resumption of permitted activities during the lockdown period.

MHA in a communication to all States/UTs has requested them that the industrial field establishments and field offices may be apprised of the guidelines of lockdown measures, which should be followed to prevent the spread of epidemic. It has also been directed that these should not be misused to harass the management of any manufacturing/ commercial establishments.

Click here to see the Official Communication to States


Ministry of Home Affairs

[Press Release dt. 23-04-2020]

[Source: PIB]

COVID 19High Courts

Karnataka High Court: A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J., while addressing a petition held that,

“…decision to keep open super markets 24×7 relates to purely a policy decision and nothing arbitrary in the said policy decision is found.”

Petition has been filed to quash the Order passed by respondent 4 allowing the opening of Super Markets 24 x 7 otherwise the consequence of the same would be that a large number of people will enter the supermarkets and will touch the articles, which will result into the spread of COVID-19.

Further the petition in view of the above submitted that the working hours of super markets will have to be restricted.

Another submission is for BMTC buses with regard to their cleanliness which is not maintained and if permission to travel is granted to 20 passengers, it will result in spread of COVID-19.

Bench with regard to the submission of super markets, stated that, depending upon the circumstances and local situation, it is for the Authorities of the State to take a decision regarding the time during which grocery shops and super markets can be kept open. Thus, the opening of supermarkets 24 x 7 relates to purely a policy decision.

For the second submission of the petitioner, Court stated that,

all the precautions will have to be taken while operating the buses and norms of social distancing will have to be strictly observed. Court found nothing per se anything wrong, arbitrary or illegal in the decision taken to allow BMTC buses to be used for transportation of persons who are connected with providing the essential services.

In view of the above, petition is disposed of. [Sandhya U. Prabhu v. State of Karnataka, 2020 SCC OnLine Kar 441 , decided on 21-04-2020]