‘None of us chose litigation to sit behind computers and argue. But we need to be aware of the realities. Covid still does not have a cure, nor is the vaccine readily available.’ – Shivani Luthra Lohiya

Ms. Shivani Luthra Lohiya is a practicing Advocate in New Delhi. She graduated from Amity Law School, Delhi and then went on to do an LLM from the University of Pennsylvania Law School and an M.Phil in Criminology from the University of Cambridge. Ms. Lohiya has had an independent practice since 2018 and has recently started a Chamber by the name of Law Chambers of Saluja and Luthra Lohiya. She has a keen interest in criminal law, commercial litigation and arbitration along with other allied laws.

Ms Lohiya, along with other women lawyers, had on January 18 moved the Supreme Court challenging the resumption of physical hearings in the Delhi High Court contending that they were not given the choice to argue cases virtually. On January 22, the Delhi High Court said it has initiated steps for a hybrid system where a hearing can be joined through virtual as well as physical mode. The high court issued an administrative order stating that when a particular bench is conducting virtual hearing, a lawyer may opt for the virtual hearing of a matter by giving prior intimation. 

Q. Why did you decide to file this petition against resumption of physical hearings in the Delhi High Court?

The fact is that the threat of Covid is still very much there. A lot of us lawyers live with parents with comorbidities, many lawyers have children, some themselves live with comorbidities. We all know people who have lost their lives due to the pandemic. Schools are still not open and many lawyers have small children and someone has to be there at home with their children to help them with their virtual schooling. These were the major concerns.

Now that we have waited for nine months for the courts to reopen, another two or three months would not be the end of the world. We can’t at this point be asked to choose between our right to practice, and our duty towards our parents or our children. 

Looking at all these facts, the petition was filed. The larger reason was the health concerns. None of us chose litigation to sit behind computers and argue. We don’t want virtual hearings to become a permanent fixture unless it is procedural in the path of progress. But, at the same time, we need to be aware of the realities. Covid still does not have a cure, nor is the vaccine readily available.

Q. Some lawyers have claimed that virtual hearings are creating hurdles in their work and that they want physical hearings to resume so that they can earn a living. How would you respond to this argument?

Of course virtual hearings have created hurdles for many lawyers. A lot of people are not technologically savvy. Many of our senior lawyers had to learn how to use this technology. There are also many people who do not have access to such technology. That’s why we suggested a hybrid system, where lawyers can choose whether they want to argue virtually or by being physically present in the court room. 

Physical hearings are unnecessarily burdensome on the judges during these times as well, as they have to go (when many others are present in court). Many judges are also in the high-risk category. They may have comorbidities. While it is true that in the courts there are screens to protect the judges from any direct interaction, and the judges sit far away (from the others), however, there is some interaction of the public with the court staff, who in turn interact closely with judges. 

The Delhi High Court is hearing only urgent matters. I don’t understand at this point what physically opening up the High Court will achieve when you’re not increasing the number of matters that are being heard. Reverting to the physical system will not help lawyers who are not having sufficient work. If I have to file an application in a pending matter today, I have to show some urgency. It’s not that matters are getting listed or taken up in regular course like they were before. Consequently, the virtual hearing system being done away with without increasing the number of cases, I don’t see how it would improve the plight of the lawyers who want to go physically. 

Another concern, which is not part of the petition, was that a lot people were looking at virtual hearings as the way forward. The courts have come up with some technological advancement. There is a mechanism to conduct hearings via video conferencing and the platform has been working quite well for arguments. I don’t think it has been causing too much of a problem if you have access to the internet. The courts have also established areas within the court complexes itself where people can access this technology. Ultimately, we’re all doing our meetings over video conferencing as well. 

Virtual hearings may actually lead to a more efficient system of Courts’ function. For instance, under normal circumstances very often we have to take a date in one Court because we are physically appearing in another Court. Transport takes time. But this is something for the Courts to consider in the future. That’ll depend on the Court’s discretion. For now, the petition simply said that Covid has not gone. 

Q. A lot of subordinate courts in small cities and towns don’t have the technology that’s available in courts in the metro cities to hold virtual court functions. In a post-covid world, do you think virtual courts are sustainable in the long run?

In my opinion, sustainability (of virtual courts) in the long run is a question mark. It’s a way forward, I think. But whether or not it can be a permanent fixture… at this point there’s lack of (internet) connectivity as well. Not just lawyers, but litigants also may not have access to the technology. And many litigants physically go into the courts to find lawyers. 

There’s nothing wrong with virtual hearings. It’s not that we’re not getting relief, or that judges are not able to understand what’s going on, or that we’re not able to hear each other or understand each other. Yes, there are glitches. Sometimes there’s an internet problem that causes the voice to break, sometimes you’re not unmuted when you have to speak and you’re trying to frantically call the court master saying can you please unmute us. So, there are certain disadvantages as well. But there are advantages which cannot be overlooked. You have to weigh the two. And it’s for the Courts to decide if virtual hearings are sustainable or not in the long run. In my opinion, I think it could be worked out. But it would require a very phased manner of implementation. It just cannot happen overnight. Physical hearings for accused in custody for remand matters are important in the long run and for clients in custody to meet their lawyers when normalcy returns. We’ll have to keep all the realities of the country in check — the level of education, the technology, the support being given by the government. It’s a long-term goal.

In fact, virtual hearings have enabled a lot of people, especially women, to juggle their work and childcare or household responsibilities. I have met women who have had to leave practice temporarily after having children and rejoined after some years. Perhaps they wouldn’t have if there was the option of virtual hearings at that time. 

Q. So would you say that promoting technology in the courts especially virtual hearings can lead to gender inequality in the long run?

That’s an argument people are using, but I won’t go so far as to say gender equality. I think women in litigation have to prove themselves just like any other man. We may have certain additional obstacles, but that doesn’t mean men don’t have any obstacles and that it’s a cakewalk for them. 

Q. Do you think some kind of a gender bias exists in the legal profession, like in many other professions, and that women lawyers have to work harder than men to prove themselves, even though men may have their own share of problems?

I think to some extent, yes. But it’s also because of the role of women in society that exists in people’s minds. It’s less to do with the profession and more to do with the mindset of people. It’s not that the profession is not meant for women. 

Q. How has the pandemic affected you personally — as a lawyer, and as a woman?

I do a lot of criminal law, particularly criminal trials and trials have not been taking place, evidence was not being recorded. Professionally, it has greatly affected me in that sense. Personally, I have older people and senior citizens in my home so I’ve had to be extremely careful throughout the pandemic. Some of my close friends have lost family members to Covid. That, of course, is a hazard of this pandemic that everyone is facing. It has been a blessing to have the judiciary balance the needs of the lawyers as well as the litigants by introducing a system of virtual hearings in the first place and thereafter, by considering introducing a hybrid system, giving an option to lawyers to appear through virtual / physical hearing.

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