IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION [RULE 4(e) (i) OF THE BOMBAY HIGH COURT PUBLIC INTEREST LITIGATION RULES, 2010] PUBLIC INTEREST LITIGATION (PIL) PETITION NO. _____ OF 2020
Chirag Chanani & Ors ... Petitioner
Versus
Union of India & Ors. ... Respondents
I N D E X
Sr. Date Exh Page Particulars No. No.
1. Proforma I-III
2. Synopsis A-E
3. Petition 1-22
4. Vakalatnama 23
5. Memorandum of 26 Address
6. List of Documents 27
7. 31.05.2020 A Copy of guidelines issued 29 by the Government of India
8. 19.06.2020 B Copy of circular issued by 41 divisional railway manager’s office
9. 19.06.2020 C Copy of letter by Bar 42 council of Maharashtra & Goa to Hon’ble Minister of Home Affairs.
10. 25.06.2020 D Copies of Circulars issued 43 by Respondents 03.07.2020
11. 18.05.2020 E Copy of order of Delhi 45 High Court
12. F Copy of the relevant 49 Section of The Maharashtra Essential Services Act 2017
13. G Copy of the Preamble of 57 Chapter II of Bar Council of India Rules, 2009.
14. 20.06.2020 H Copy of Representation 159 made.
15. 26.06.2020 I Copy of letter by 166 Respondent No.6
16. 08.06.2020 J Copies of SOP 167
24.06.2020
03.07.2020
17. 06.04.2020 K Copy of 181 circular/guidelines 184 18. Advocates Certificate
19. Affidavit in support 185 of Petition
20. Last page 185
Date: __.07.202006 Place: Mumbai Advocate for Petitioners Dewani Associates IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
[RULE 4(e) (i) OF THE BOMBAY HIGH COURT
PUBLIC INTEREST LITIGATION RULES, 2010]
PUBLIC INTEREST LITIGATION (PIL) PETITION NO. _____ OF 2020
Chirag Chanani & Ors ... Petitioner
Versus
Union of India & Ors. ... Respondents
Office Notes. Office Memorandum of Coram Court’s or Judges Orders appearance. Court’s orders or direction and Prothonotary’s Orders
Office Notes. Office Memorandum of Court’s or Judges Orders Coram appearance. Court’s orders or direction and Prothonotary’s Orders
Office Notes. Office Memorandum of Court’s or Judges Orders Coram appearance. Court’s orders or direction and Prothonotary’s Orders
A
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
[RULE 4(e) (i) OF THE BOMBAY HIGH COURT
PUBLIC INTEREST LITIGATION RULES, 2010]
PUBLIC INTEREST LITIGATION (PIL) PETITION NO. _____ OF 2020
Chirag Chanani & Ors ... Petitioner
Versus
Union of India & Ors. ... Respondents
SYNOPSIS
The Petitioners are lawyers, practicing in various Courts at Mumbai and suburbs interalia seeking direction to hold and declare that the services rendered by a lawyer are essential services and to include lawyers in the list of persons entitled to travel by local train in special trains being run during the Pandemic restrictions and to declare that the action of the respondent No. 2 and 6 in restricting prohibiting lawyers from commuting by local train during pandemic restriction is absolutely illegal and bad in law.
DATES AND EVENTS
SR. DATE EXH PARTICULARS PAGE NO. NOS.
1. 18.03.2020 Maharashtra Government had directed closure of all establishments in Malls, Gyms, Swimming pools, Theatres to deal with the situation in Maharashtra due to Pandemic.
B
2. 22.03.2020 There was self imposed curfew which was followed by Government of 23.03.2020 Maharashtra ordering for closure of all except few necessary establishments and offices, by imposing Curfew with effect from 23.03.2020.
3. 25.03.2020 The Government of India ordered for complete Lockdown for a period of 21 days from the midnight.
4. 01.06.2020 The lockdown was extended from time to time although many relaxations have been given by the Government of Maharashtra.
5. 31.05.2020 A The Government of Maharashtra had issued the guidelines, which were titled as unlock 1.0, wherein most of the establishments and private offices were allowed to be opened with certain restrictions
6. 08.06.2020 Private offices including lawyers office and courts started functioning.
7. 16.06.2020 It is evident from the news articles and other sources of media that the State Government has allowed almost 346 local trains to ply on Western, Central and Harbour line.
8. 125,000 essential staff, as identified by the State Government, is allowed and expected to travel by these trains
9. 19.06.2020 B The Divisional Railway Manager’s office issued a circular enumerating the categories of essential services staff permitted to travel by local train
10. 19.06.2020 C The Chairman of Bar Council of Maharashtra and Goa addressed a C
letter to the Hon’ble Minister of Home Affairs for the State of Maharashtra, requestingto grant permission to lawyers and staff of Bar Council of Maharashtra and Goa travel by local trains.
11. 26.06.2020 D The Respondent No.2 through its Chief Secretary addressed a letter to the Chairman of Railway Board thereby requesting to allow Defence and Bank Employees to travel in local train and thereafter Central Railway, Commercial Division, having its Divisional office at CST, issued a circular which enlisted the different categories of essential staff but unfortunately that list doesn’t include Advocates practising in Mumbai Metropolitan Region (MMR)
12. 18.05.2020 E The lawyers services have been considered has essential services by the Hon’ble Delhi High Court vide its order regarding issuing e-passes to lawyers.
13. F Section 2 (a) (iv) of The Maharashtra Essential Services Maintenance Act 2011, includes officers of the High Court within the definition of essential services. It is submitted that as the Maharashtra Essential Services Act includes lawyer’s services as essential service.
14. G Every lawyer enrolled under the Bar Council of India unquestionably is an officer of the Court and thus performs essential services of being a medium of rendering justice to people as D
mentioned in the Preamble of Chapter II of Bar Council of India Rules, 2009.
15. 20.06.2020 H The Petitioners were constrained to make a representation to the Respondent No. 2 to 5, seeking their intervention and necessary directions to permit the lawyers to travel by local train.
16. 26.06.2020 I The Respondent No. 6 has issued direction to Railway Authorities wherein the request is made to permit the staff of Government Pleader office, the office of Advocate General, as well as the staff of High Court to travel by local train
17. 08.06.2020 J Circulars issued by this Hon’ble court which has laid down procedure for 24.06.2020 physical filing commencing from 03.07.2020 25.06.2020 and that of Apex Court has also re-opened physical acceptance of documents/filing from 04.07.2020 onwards
18. 06.04.2020 K The Honourable Apex Court had vide circular/guidelines started the court hearing through virtual courts/video conferencing.
19. Hence this Petition
Points to be urged
1) Whether the services rendered by a lawyer are essential services ?
2) Whether respondent No. 2 and 3 should include lawyers in the list
of persons entitled to travel by local train in special trains being
run during the Pandemic restrictions? E
3) Whether the act of the that the action of the respondent No. 2 and
6 in restricting prohibiting lawyers/ advocates from commuting by
local train during pandemic restriction is justified, valid and legal
in law ?
List of Acts relied upon
1) The Constitution of India.
2) Disaster Management Act, 2005
3) The Maharashtra Essential Services Act 2011
4) Bar Council of India Rules, 2009.
Authorities to be cited
Nil at present
Place: Mumbai
Date: __.07.202006 Advocate for Petitioner
Dewani Associates
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION [RULE 4(e) (i) OF THE BOMBAY HIGH COURT
PUBLIC INTEREST LITIGATION RULES, 2010] PUBLIC INTEREST LITIGATION (PIL) PETITION NO. _____ OF 2020
1. Chirag S/o. Rajiv Chanani ]
Age: 37 Years, Occupation: Advocate ]
Residing at C-701, Gayatri Shivam CHSL, ]
90 Feet Road, Thakur Complex, ]
Kandivili (East), Mumbai – 400101 ]
2. Vinay Kumar ]
Age: 29 Years, Occupation: Advocate ] B/2, The Parle Colony CHSL, ]
Sahakar Road, Off Sahar Road, ]
Vile Parle (East), Mumbai – 400 057. ]
3. Sumit S/o. Jagdish Kumar Khanna ]
Age: 39 Years, Occupation: Advocate ]
F-505, OberoiSplendor, ] Opposite Majas Bus Depot, J.V.L.R ]
Andheri (East), Mumbai – 400 057 ] …Petitioners
….//VERSUS//….
1. Union of India, ] Ministry of Railway, ] North Block, New Delhi-110001 ] Through its Secretary ] Email :[email protected] ]
2. State of Maharashtra, ] 2
through its Chief Secretary, ] Department of Revenue and Forest, ] Disaster Management, Relief ] and Rehabilitation, Mantralaya, Mumbai ] Email: [email protected] ]
3. Commissioner of Police (Railways) ] --th Floor, Area Manager Building, ] PD Mello Road, ] Sandhurst Road, Mumbai-400 010. ] Email :[email protected] ]
4. Municipal Corporation of Greater Mumbai ] B.M.C HQ, Mumbai CST-400 001. ] Through its Commissioner ] Email :[email protected] ]
5. Commissioner of Police, Mumbai ] Crawford Market, Mumbai. ] Email: [email protected] ]
6. The Director, ] Disaster Management Unit, ] Government of Maharashtra, ] Mantralaya, Mumbai ] Email: [email protected] ] …Respondents
THE HUMBLE WRIT PETITION OF THE PETITIONER ABOVENAMED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR THE ISSUANCE OF:-
BY THE WAY OF APPROPRIATE WRIT, ORDER, DIRECT RESPONDENT NOS. 2 & 6 TO PERMIT/ALLOW LAWYERS/ADVOCATES /ADVOCATES PRACTISING IN ALL ACROSS MUMBAI METROPOLITAN REGION (MMR) TO 3
TRAVEL BY SUBURBAN/LOCAL TRAINS BEING RUN DURING THE PANDEMIC RESTRICTIONS;
PUBLIC INTEREST LITIGATION PETITION:-
The Petitioners named above most respectfully beg to submit as under:
I. Particulars of the cause against which the Petition is made:
The Petitioners herein are constrained to approach this Honourable Court invoking its extraordinary writ jurisdiction of the Hon'ble Court in public interest, as there is apparent arbitrary discrimination being done by the respondents, with the entire fraternity of Lawyers/Advocates , although in the respectful submission of the Petitioners, they are also rendering essential services during this period of restricted movement because of spreading of pandemic of Covid-19. The facts giving rise to the filing of the present petition are stated herein after.
II. Ground of it Being:-
The grievance of the Petitioners is that the Advocates are not allowed to commute by local trains, which according to the petitioners is totally unjustified, considering the fact that Lawyers/Advocates assist the people at large in getting appropriate justice apart from the fact that they are officers of Court and they render assistance to all Honourable Courts in effecting justice in matters placed before them and thus perform services of essential category.
III. Particulars of the Petitioners:-
1. The Petitioners are Lawyers/Advocates /Advocates based at Mumbai, practicing in various Courts at Mumbai and suburbs and are residing at the addressed mentioned in the clause title.
2. That the Petitioners are filing this instant Petition through Advocates Associates named under style of Dewani 4
Associates viz. Shyam Dewani, Heena Kapoor, Bhoomi Katira all practicing at the Bombay High Court.
IV. Declaration and understanding of the Petitioners:-
1. That the present Petition is being filed by way of Public Interest Litigation and the Petitioners does not have any personal interest in the matter as the issue concerns well- being of all Advocates who are practising independently over all the Courts having its Jurisdiction all over Maharashtra particularly at Bombay and whose livelihood are badly hit by this Pandemic. Therefore, the Petitioners are filing this Petition in the larger interest of justice.
2. That the entire cost of litigation is borne and paid by the Petitioners.
3. That to the best of the Petitioner’s knowledge and research, the issues raised in this Petition have not been dealt with or decided by this Hon’ble Court and neither a similar or identical Petition was filed by him earlier.
4. That the Petitioner understands that in the course of hearing this Petition, the Hon’ble Court may require any security to be furnished towards costs or any other charges and the Petitioner shall comply with such requirements.
V. Facts in brief constituting the cause:
1. That, the Respondent No. 1 is the Union of India, Ministry of Railway. The Respondent No. 2 is the State of Maharashtra, the Respondent No. 3 is the Commissioner of Police (Railway), Mumbai. The Respondent No. 4 is the Commissioner, Brihanmumbai Municipal Corporation. The Respondent No. 5 is the Commissioner of Police, Mumbai. The Respondent No. 6 is the Director, Disaster Management Unit, Maharashtra. All the above stated Respondents are statutory authorities and are state within meaning of Article 12 of the Constitution of India, thus they are amenable to the writ jurisdiction of this Honourable Court. 5
2. That, every state has three organs, namely Legislature, Executive and Judiciary. In order to enable the state to function for the very propose it exits, it is necessary that all the three organs of the state work continuously and in harmony, while minting its independence. Judiciary is the pillar of the State, which is established to uphold the Constitution and to protect the rights of the people. The said function of the Judiciary cannot be put to rest and therefore, it has to function at all times and by this very nature and function of judiciary i.e. dispensing the justice to the subjects of the State, it is an essential service.
3. That, at present the whole world, including India has been going through and suffering the effects of Pandemic Covid-19. To deal with the situation in Maharashtra since the nationwide lockdown has been declared, Maharashtra Government had initially directed closure of all establishments in Malls, Gyms, Swimming pools, Theatres from 18th March, 2020. Then there was self-imposed curfew on 22nd March, 2020, which was followed by Government of Maharashtra ordering for closure of all except few necessary establishments and offices, by imposing Curfew with effect from 23rdMarch 2020. Then, the Government of India ordered for complete Lockdown for a period of 21 days from the midnight of 25thMarch, 2020. Thereafter, the said lockdown was extended from time to time and presently since 1st June 2020 although many relaxations have been given by the Government of Maharashtra, but still there are many restrictions, and few of them are unreasonable such as the issue raised in the present Writ Petition.
4. That, as the entire nation was put under lockdown, it was witnessed from time to time, on each occasion a lockdown is announced/extended, Respondent No. 1 had issued guidelines, invoking the provisions of the Disaster Management Act, 2005 and at the advice of the National Disaster Management Authority. The Government of Maharashtra had issued the guidelines, which were titled as 6
unlock 1.0 on 31.05.2020, wherein most of the establishments and private offices were allowed to be opened with certain restrictions. The Guidelines dated 31.05.2020 issued by the Government of Maharashtra, are annexed herewith and marked as ANNEXURE – “A”.
5. That, after issuing the above said guidelines, the Government of Maharashtra has also permitted travel of local trains in Mumbai. However, the said privilege is restricted to certain class of passengers which is highly discriminatory. It is evident from the news articles and other sources of media that the State Government has allowed almost 346 local trains to ply on Western, Central and Harbour line from 16/06/2020. It was estimated that 125,000 essential staff, as identified by the State Government, is allowed and expected to travel by these trains. It was also mentioned by the State authorities that these special suburban services will not be for general passengers/public and will be strictly for essential staff as identified by the State Government of Maharashtra only. It is pertinent to mention here that the Divisional Railway Manager’s office has issued a circular on 19.06.2020, enumerating the categories of essential services staff permitted to travel by local train. Annexed herewith and marked as ANNEXURE – “B” is the copy of said circular dated 19.06.2020. The said circular, does not entitle the Lawyers/Advocates to commute in the local trains, despite the fact that services of Lawyers/Advocates /Advocates are essential services.
6. That, it is also significant to mention that the Chairman of Bar Council of Maharashtra and Goa addressed a letter dated 19.06.2020 to the Hon’ble Minister of Home Affairs for the State of Maharashtra, requestingto grant permission to Lawyers/Advocates and staff of Bar Council of Maharashtra and Goa travel by local trains. The said letter accentuates the need of Lawyer’s/Advocates services and highlights the pre- requisite of permission to travel by local trains under the emergency services for Lawyers/Advocates. Annexed herewith 7
and marked as ANNEXURE – “C” is the copy of said letter dated 19.06.2020.
7. That, it is equally germane to mention that, recently it has been highlighted by print media on 26.06.2020 that apart from the State Government staffers, even the Central government staffers, including those from Income- tax, Goods and Service Tax, Customs Defence, Postal and Banking sectors are allowed to board the local trains to reach their workplace. Thus, the State Government has already allowed Mantralaya staff, BEST, Local Civic Bodies, Police and Medical personnels. Now that the Central Government staffers also have been travelling by local. It makes it further apparent that the Respondent No.2 through its Chief Secretary has addressed a letter dated 25th of June, 2020 to the Chairman of Railway Board thereby requesting to allow Defence and Bank Employees to travel in by local/suburban trains in Mumbai/ Mumbai Metropolitan Region (MMR) and thereafter Central Railway, Commercial Division, having its Divisional office at Chatrapati Shivaji Terminus for short CST, have issued a circular dated 3rd of July 2020 which enlisted the different categories of essential staff but unfortunately that list doesn’t include Advocates practising in Mumbai Metropolitan Region (MMR). Therefore the offices of the Respondents indeed are acting mechanically by restricting Lawyers/Advocates /Advocates to travel by local trains. Collectively annexed herewith and marked as ANNEXURE – “D” is the copy of said circulars dated 25.06.2020 & 03.07.2020 respectively.
8. It is most respectfully submitted that the said decision of the Government to restrict the travel of general public is indeed an appropriate step taken in furtherance of the precautionary measures of social distancing as required during this pandemic of Covid-19. However, the grievance of the petitioners is that the Lawyers/Advocates are not allowed to commute by local trains, which according to the petitioners is totally unjustified, considering the fact that 8
Lawyers/Advocates assist the people at large in getting appropriate justice apart from the fact that they are officers of Court and they render assistanceto all Honourable Courts in effecting justice in matters placed before them and thus perform services of essential category. The Petitioners being residents of suburbs in Mumbai are required to undergo tremendous inconvenience to travel to the Courts and their offices in town as the Courts have also started functioning since 08/06/2020. This problem is faced by hundreds of Lawyers/Advocates /Advocates who do not have their own vehicles and are not in bus zone or are required to change 3 - 4 buses to reach Court which is also a problem as time constraint for legal profession are of outmost importance. All these difficulties are due to the mechanical direction of the State Authorities. It is an indisputable fact that the entire legal fraternity in Mumbai is facing this vital predicament and thus the petitioner have approached this Honourable Court representing the legal fraternity for the said purpose as well as the public at large, who are being and bound to be affected by such unreasonable restrictions being imposed by the Authorities on the members of the Legal Profession.
9. That, the Petitioners appreciate the measures which were and are being taken by the authorities for prevention of spread of Covid-19. However, as now the courts are functioning and most of the Lawyers/Advocates /Advocates have their offices in town and they reside in suburbs, it is inevitable to consider the travel provisions of Lawyers/Advocates by State authorities. The Petitioners takean exception to not permitting the Lawyers/Advocates to travel by local trains to reach their offices and court premises.
10. It is pertinent to mention here that the members of legal fraternity are one of the important pillars in giving effect to the Laws enacted by the Parliament and their services are connected with the matters with respect to justice delivery system. Considering the very nature of services provided by the Lawyers/Advocates , there is no doubt that the services of 9
Lawyers/Advocates /Advocates are essential services. In view of the nature of the services provided by the Lawyers/Advocates /Advocates, the Honourable Supreme Court in the matter reported in AIR 2003 SC 739 has held that the Lawyers/Advocates are not permitted to go on strike, as it affects the administration of justice. Thus, going the ratio laid down by the Honourable Apex Court also there is no iota of doubt that the services of a Lawyers/Advocates /Advocates are essential services.
11. It is also imperative to draw this Hon’ble Court’s attention to the fact that even during the crises of Covid-19 , the Lawyers/Advocates services have been considered has essential services by the Hon’ble Delhi High Court vide its order dated 18.05.2020 regarding issuing e-passes to Lawyers/Advocates . It has been categorically stated in the said order that, “Legal services are essential services”. The advocates represent their clients in cases to protect and advance their rights – including fundamental rights, which may be at stake, and to deny such litigants the right to avail of legal services through their engaged advocates, would be denial of such rights. The rights of such advocates to earn their livelihood – which is a facet of the Right to Life and Liberty, andtheir freedom to carry out the profession, are also at stake. The same cannot be completely denied and can only be regulated with reasonable restrictions.” The Hon’ble Court directed the State of U.P to adopt the same method for issuance of e-passes on weekly basis.” Annexed herewith and marked as ANNEXURE –“E” is the copy of said order dated 18.05.2020. It is needless to say that the said orderspeaks volumes about the Lawyers/Advocates’ services are essential services and hence for the purpose of the present petition Lawyers/Advocates should be allowed to travel by local trains.
12. It is submitted that the Hon’ble Supreme Court has time and again stressed upon the important role of Lawyers/Advocates in the entire justice system. In the matter of All India Judges 10
Association vs. Union of India, it was held thatadministration of justice and the part to be played by the Advocates in the system must be looked into from the point of view of litigant public and the right to life and liberty guaranteed under Article 21 and right to free legal aid as contemplated under Article 39A of the Constitution of India. In the said decision, while considering the directions required to be given to improve the service conditions of the Judicial Officers the Hon'ble Supreme Court al paragraph 43 observed as follows:-
“43. Krishna Iyer, J. described the scene very graphically thus:
"Law is a means to an end and justice is that end. But in actuality, Law and Justice are distant neighbours; sometimes even stage hostiles. If law shoots down justice, the people shoot down law and lawlessness paralyses development, disrupts order and retars progress. This is the current scene."
“It calls for serious introspection." (Emphasis supplied)
13. That, it is significant to mention that Section 2 (a) (iv) of The Maharashtra Essential Services Maintenance Act 2017, includes officers of the High Court within the definition of essential services. It is submitted that as the Maharashtra Essential Services Act includes lawyer’s services as essential service, it is highly indecorous on part of the Respondent Authorities to restrict the Lawyers/Advocates from travelling by local who are a vital part of the essential services. Annexed herewith and marked as ANNEXURE –“F” is the relevant Section of The Maharashtra Essential Services Act 2017. Similarly, The Bar Council of India Rules, 2009 made under Section 49 (c) of the Advocates Act, 1961 categorically states in the Preamble of Chapter II, Part VI of the said Rules that “An Advocate, shall at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community.” It is needless to say that every lawyer enrolled under the Bar Council of India unquestionably is an officer of the Court and thus performs 11
essential services of being a medium of rendering justice to people. It is ardently stated that there is absolutely no logical reasoning to restrict the Lawyers/Advocates from travelling by local trains to reach the courts. Annexed herewith and marked as ANNEXURE –“G” is the Preamble of Chapter II of Bar Council of India Rules, 2009.
14. It is also needless to state, that the judiciary is one of the organs of maintaining law and order apart from Law Enforcement Agencies, Legislature and Executives. The Courts are considered as watch-towers guarding the liberty and Fundamental Rights of the citizens. The Courts continue to serve and servile the arbitrariness in the acts of the other organs of Constitution, even during the emergent situations like the present situation of Lockdown because of the spread of Covid-19 Epidemic and therefore like all other Essential Services, Courts are functioning for rendering appropriate justice to the public at large. At this juncture it is submitted, that when the courts are functioning for dispensing justice to the people, services of a lawyer cannot be viewed in isolation and cannot be categorised as non-essential.
15. That, justice delivery system being an essential service, the services of Lawyers/Advocates, as they being an integral part of justice delivery system, is also essential services. It is well settled, that every litigant has a right to be represented through a lawyer in the court of law, before authorities or otherwise. While the Courts are functioning and taking up the matters, it is the duty of the Respondent Authorities to ensure that means of transport are being made available to the members of legal fraternity. By not providing the means of public transport to the members of legal fraternity, the fundamental right of the litigants to be represented by lawyer is also being taken away, for if the lawyer cannot reach the Court or if he cannot have access to his office, he cannot represent his client. Similarly, legal services being imparted for every aspect of life, the public at large cannot be deprived from use of the said services, when all other aspects involving 12
violation of their rights are not suspended. Every citizen has a right to be defended and represented by a lawyer of his choice, which cannot be denied to a citizen by putting any unreasonable restrictions, like the one imposed by the Respondent No. 2, by not permitting the members of the legal fraternity to travel by local trains. Due do such unreasonable restrictions, hundreds of Lawyers/Advocates are not in a position to reach their offices and Courts.
16. That, it is submitted that due to Social distance and other aspects, threat and exposure of COVID-19, the Advocates are more reluctant to call their clients to their residence to prevent Covid, where social distancing is not possible. It is submitted that the entire infrastructure of an advocate is at his office and he is unable to work from home efficiently as he has to refer to the books, assess to the Computers, Books, Stationery etc. which is available in the office and apart from that he has to depend upon Typist or Stenographers, who find it comfortable working at office than home. Needless to say that it is utmost necessary to allow Lawyers/Advocates to travel by local trains.
17. That, the Law is very well settled and is brought to the kind notice of this Hon’ble Court, there should not be any scope for such unreasonable restriction of not allowing Lawyers/Advocates to travel by local trains, which may result in causing injustice to the needy litigants and the practicing Lawyers/Advocates rendering the legal services, which are essential in nature.
18. Any representation etc. made: - That the Petitioner through themselves have made a representation in this regard before to the Respondent No. 2 to 5. That, due to the said impractical and unfair restrictions on travel of Lawyers/Advocates by local trains, the said action of the State Authorities has made it impossible for the Lawyers/Advocates to carry on their profession and therefore, in such circumstances, on 20th June 2020, the Petitioners were constrained to make a representation to the Respondent 13
No. 2 to 5, seeking their intervention and necessary directions to permit the Lawyers/Advocates to travel by local train. Despite the representation urged an ardent issue which required instantaneous response from the said respondents, unfortunately the petitioners have not received any reply till date. Annexed herewith and marked as ANNEXURE – “H” is the copy of said representation dated 20th June 2020, for kind perusal of this Honourable Court.
19. That, it appears that the Respondent authorities have not considered the representation made by the petitioners and the same has been impliedly rejected. Apart from the said fact, it is imperative to bring to the kind notice of this Hon’ble Court that the Respondent No. 6 has issued direction to Railway Authorities on 26.06.2020, wherein the request is made to permit the staff of Government Pleader office, the office of Advocate General, as well as the staff of High Court to travel by local train. Annexed herewith and marked as ANNEXURE –“I” is the copy of said letter dated 26.06.2020. It is submitted consequent to the said letter, staff of Government Pleader office, the office of Advocate General, as well as the staff of High Court is permitted to travel by local train.
20. That, it is also noteworthy to bring to the kind attention of this Hon’ble Court thatat present 362 local trains are running daily, including 162 on western railway, 130 on Central main line and 70 on Harbour line. Almost 1 lakh essential staffers travel daily and it was also mentioned in print media as well as well by several news channels that the number of trains plying shall be increased by adding 40 more trains very soon. It is needless to say that if the number of trains is increased it shall not be a Herculean task to accommodate Lawyers/Advocates in local train. Additionally, Lawyers/Advocates being educated and responsible persons, the norms of social distancing are ought to be followed and hence there is no harm in allowing the Lawyers/Advocates to travel by local trains. 14
21. That, it is pertinent to mention here that the respondent authorities are recognising that the services offered by the Lawyers/Advocates is an essential service and consequently, staff of Government Pleader office, the office of Advocate General, as well as the staff of High Court are being permitted to travel by local train. Nonetheless, other Lawyers/Advocates are not permitted to travel by local trains which unquestionably amount to be absolutely discriminatory and biased. It is emphatically stated that allowing the staff of High court and other legal offices but not allowing the Lawyers/Advocates is totally an unreasonable classification having no rational nexus to the object sought for classification and thus the Respondents are unreasonably classifying between Government Pleaders who themselves are Lawyers/Advocates and Lawyers/Advocates who undertake private practise like the Petitioner herein. It is submitted that the said action on the part of Respondent Authorities is discriminatory, as there cannot be class legislation under the pretext of reasonable classification. It is settled law that there can be reasonable classification but there cannot be class legislation. It appears in the instant issue raised by the Petitioners, the Respondent Authorities have created a class within a class of Lawyers/Advocates which totally arbitrary and unreasonable. Needless to say, such action on part of the respondent authorities is impermissible by law.
22. It is further submitted that as the Government Pleaders and High Court staff are permitted to travel by local trains who belong to the same legal fraternity, the said classification of not allowing other Lawyers/Advocates to travel by local trains is not based on any substantial distinction. It is ironically stated that such act on part of the Respondent Authorities indeed amounts to class legislation. It is a cardinal principle of equality that equals cannot be treated with differently and the same amounts to discrimination if treateddifferently without a reasonable ground. Such an act of part of the Respondent Authorities of class legislation has demonstratedimproper discrimination by conferring 15
particular privilege of permission to travel by local only upon a class of Lawyers/Advocates arbitrarily selected from other practicing Lawyers/Advocates. Such classification drastically fails to secure the object of reasonable classification, and the object legislature for the purpose of achieving the specific ends.
23. It is submitted that due to the discriminatory approach adopted by the respondent authorities, particularly the respondent No. 2 and 6, it has become impossible for the petitioners and other Lawyers/Advocates to carry on their profession and therefore, in such circumstances, the petitioners are constrained to approach this Honourable Court, in public interest, for seeking necessary directions in the matter, in the compelling circumstances stated herein. Needless to state, if such unreasonable classification is permitted to be carried out by the Respondents, ultimately the working of all Courts would be hampered as the Lawyers/Advocates like the Petitioners hereinwould not be able to assist the Honourable Courts in advancement of justice.
24. It is most humbly submitted that the discriminatory classification by the respondent authorities has given a blow to the cardinal principle of fairness and reasonableness deeply enshrined under Article 14 and 21 of the Constitution. Additionally, such biased action of permitting a class of persons working in legal profession and restricting Lawyers/Advocates to travel by local train is not only violative of right to equality and right to life but also infringes right to trade and profession of Lawyers/Advocates embodied under Article 19 (1) (g) of the Constitution. It is a matter of fact that as per the Advocates Act 1961, Lawyers/Advocates are not permitted to have a parallel source of earning or profession. Needless to say the sole source of livelihood for Lawyers/Advocates is through their legal profession. And by restricting the Lawyers/Advocates from reaching their offices and Courts by not allowing them to travel by local train 16
undoubtedly violates right to trade and profession. The Honourable Court may be pleased to take a judicial notice of the fact that in a Metro City like Mumbai which is spread in an area of more than 600 Sq. Kms., public transport, more particularly Local train is the only way of commute for majority of the population who doesn’t own a private vehicle due to parking, traffic chaos and time constraints. Restricting use of the same to Lawyers/Advocates, who are performing essential service of assisting the Honourable Courts for effective justice in the matters, would result in restraining majority of the Lawyers/Advocates (more particularly Junior Lawyers/Advocates) from travelling for their matters in various Courts across Mumbai, which would ultimately have an adverse impact effective disposal of matters by all Courts.
25. It is respectfully submitted that every person has a right to get redressed of his grievances, with the unreasonable restrictions as aforesaid imposed; thereby depriving the Lawyers/Advocates to travel by local train is resulting in depriving the litigants of effective legal service. It is needless to submit that our country being the second most populous nation of the world, it is crucial to have the justice system roll on its wheel to impart righteousness to people, who are victims of the situations. It is submitted that the judicial system being as one of Essential Services and the functioning of the same, having been never stopped, there is no reason for not allowing the Lawyers/Advocates commute through local train as Lawyers/Advocates services are also essential services.
26. The Petitioners respectfully submits that like any other essential services and therefore like members of other fraternities providing essential services, Lawyers/Advocates too being very much within the definition of essential services are required to be permitted to commute through local trains. By not permitting the Lawyers/Advocates to commute by local trains, the Respondents are committing absolute illegality, which needs to be corrected by the Honourable 17
Court. It is submitted that such unreasonable restriction imposed on the Lawyers/Advocates are absolutely impermissible in law.
27. It is submitted that maintaining law and order is one of the major perquisites of a system, which cannot be avoided and thus though the ‘World is under a pandemic, the Courts are working, as the right to life cannot be denied to an individual as per Article 21 of the Constitution of India. It is also worthwhile to state that in this virtual new way of functioning, through Video Conferencing, it is absolutely necessary for the Lawyers/Advocates, who do not have their offices at home to run and operate their offices, which are situated at a distance, for which the Lawyers/Advocates are required to travel by local train. Moreover, the facility of Video Conferencing is available only for the High Court matters. The Lawyers/Advocates are expected to be physically present in lower courts for appearance, filing, etc. It is needless to say that Lawyers/Advocates inevitably are in need of reaching their offices to function and hence it is essential for Lawyers/Advocates to be permitted to travel by local trains. It is submitted that it is significant to mention that the Hon’ble Bombay High Court has issued the Standard Operating Procedure (SOP) for the Subordinate Courts in the State of Maharashtra, State of Goa and Union Territory of Diu, Daman and Dadra Nagar Haveli on 08.06.2020. The said SOP categorically states that physical filing shall be accepted with tokens, and advocates in Court premises should maintain social distancing apart from other instructions for Advocates to be followed while present in court physically. Further as per circular dated 24th of June, 2020 this Hon’ble Court has laid down procedure for physical filing commencing from 25th of June, 2020. Further it is brought kind notice of this Hon’ble Court that Apex Court has also re-opened physical acceptance of documents/filing from 04.07.2020 onwards. Hereto collectively annexed herewith and marked as ANNEXURE –“J” is the copy of SOP dated 08.06.2020, circular dated 24.06.2020 & circular dated 03.07.2020. 18
28. That, by imposing the unreasonable restriction on travel of Lawyers/Advocates by local train will not only have impact on the lives of litigants, Lawyers/Advocates , but also on the entire justice system, in as much as, it will be practically difficult for the Lawyers/Advocates to render proper assistance to the Honourable Courts. Such unreasonable restrictions on the functioning of the important limb of rendering justice, i.e. legal services, may result in Justice itself being a casualty to the pandemic.
29. It is submitted that considering the need for justice delivery system remaining operational during this pandemic, as it not only fundamental right of the citizen to get access to legal aid and the justice, it is also necessary for the law and order situation, the Honourable Apex Court had vide its order dated 06.04.2020 has issued certain guidelines about hearing through virtual courts/video conferencing. In the said circular/guidelines, it has been specifically stated that justice delivery system cannot be shut. The said order dated 06.04.2020, is annexed herewith and marked as ANNEXURE –“K”. Besides that it is also necessary to point out that promoting justice and securing the access to justice and providing legal aid to the citizens, is the duty of the State and it is included in the directive principles under Article 39A of the Constitution of India.However, by imposing unreasonable restriction, not permitting the Lawyers/Advocates to commute by local train, the citizens are being denied of their fundamental rights, as it renders the Lawyers/Advocates incapacitated to reach their office and court as well, ultimately resulting in denying the legal assistance to the citizens.
30. It is submitted that the Respondent Authorities cannot act in such an unfavourable manner without any rhyme or reason. In fact, it important to mention that in few countries, such as United Kingdom and United States of America, the Government first notified legal practitioners as key workers and then notified how different categories of Courts shall 19
function as Lawyers/Advocates in these countries are considered central for the operations of the judicial system. Unfortunately in Mumbai, Lawyers/Advocates are even restricted to travel by local trains to render their services which include travel Courts, prisons, police stations, offices, residence, etc.
31. That, from the perusal of the list of persons who have been allowed to travel, as well as the letter dated 26.06.2020, it is apparent on the face of it that the action of the Respondent authorities, particularly the Respondent No. 2 and 6, in not permitting the Lawyers/Advocates to travel by local train is arbitrary and discriminatory and hit by Article 14 of the Constitution of India. It is pertinent to mention here that the services of a lawyer are essential services. Various personnel and staff of government establishments, who are providing essential services, are being permitted to travel by local train. However, when the Lawyers/Advocates are also providing essential services, then there is no reason to have a different approach towards the Lawyers/Advocates and restrain them to travel by local train. The said approach on the part of the respondent authorities is discriminatory against the Lawyers/Advocates and the same calls for interference of this Honourable Court.
32. The Petitioners are Lawyers/Advocates by profession and they are espousing the cause of public at large, more particularly the members of legal fraternity, in as much as, the impugned action of the Respondents causing difficulties to run their offices and providing legal services to the public at large and also assist the Honourable Courts as well as tribunals for rendering effective justice. The present petition being filed in public interest, the petitioners are separately seeking the leave of the Honourable Court to grant them permission to file the present petition in public interest. The petitioners are although having personal interest in the present matter, their interest is common as that of any other member of legal fraternity, particularly practicing in Mumbai 20
City and its Suburbs including Mumbai Metropolitan Region, who are aggrieved by the action impugned in the present matter. In short, the petitioners are bringing to the kind notice of the Honourable Court the grievances of public at large in the circumstances stated herein above and seeking the indulgence of the Honourable Court in the larger public interest.
33. The petitioners further most respectfully submit that the petitioners do not have any alternate remedy, much less, an efficacious one than to approach this Hon’ble Court in the instant matter under Article 226 of the Constitution of India invoking its extraordinary writ jurisdiction.
34. The petitioners herein further most respectfully submit that the petitioners have not approached this Hon’ble Court or Hon’ble Supreme Court challenging the impugned action any time before.
35. The petitioners further most respectfully submit that the petitioners undertake to furnish the true translation in English of the documents, which are in vernacular, as and when directed by this Hon’ble Court.
36. That the Petitioners are residing in the city of Mumbai and the Respondents also have their offices in the city of Mumbai. Hence, this Hon’ble Court has Jurisdiction to try and entertain the instant Petition.
37. The Petitioners have paid a fixed copy of Rs. ____250 on the instant Petition.
38. The Petitioners are not guilty of delay or laches in preferring this present Writ Petition under the Article 226 Constitution of India.
39. The Petitioners will rely upon documents, a list whereof is annexed hereto.
40. The petitioners herein further most respectfully submit that the petitioners herein have not received a caveat notice in the 21
instant matter from any of the respondents till the date of the filing of the instant petition before this Hon’ble Court.
Hence, this Petition.
PRAYER: It is therefore, humbly prayed that this Honourable Court may kindly be pleased to:
a) By way of appropriate writ, order and direction, hold and declare that the services rendered by Lawyers/Advocates are essential services;
b) By way of appropriate writ, order and direction, direct the Respondent Nos. 2 and 3 to include Lawyers/Advocates in list of essential staff that are residing in various parts of Mumbai, who are required to attend courts and their offices, in connection with rendering legal services to the public at large;
c) By the way of appropriate writ, order, direct Respondent Nos. 2 & 6 to permit/allow Lawyers/Advocates /Advocates practising all across Mumbai Metropolitan Region (MMR) to travel by suburban/local trains being run during the Pandemic restrictions;
d) By way of appropriate writ, order and direction, hold and declare that the action of the Respondent Nos. 2 and 6 in restricting prohibiting Lawyers/Advocates from commuting by local train during pandemic restrictions is absolutely illegal and bad in law;
e) Pass any other orders as this Hon'ble Court deems fit in the interest of justice;
And for which act of kindness, the Petitioners shall remain duty bound and ever pray. 22
MUMBAI
DATE : 06 /07/2020 PETITIONER NO. 1
PETITIONER NO. 2
COUNSEL FOR PETITIONERS PETITIONER NO. 3
VERIFICATION/ SOLEMN AFFIRMATION
I, Chirag Chanani, aged about 37 years, Resident of "C-701,
Gayatri Shivam Chsl, 90 Feet Road, Thakur Complex, Kandivili (E),
Mumbai – 400101, the Petitioner No.1 abovenamed, do hereby state on solemn affirmation that the contents of paragraphs 1 to
29 are true and correct to the best of my knowledge and the contents of paragraphs 30 to 40 are based on legal advice which I believe the same to be correct.
Solemnly affirmed at Mumbai ]
On this ___06th Day of July, 2020 ]
DEPONENT
Identified by me;
Advocate for Petitioners
23
We are not the member of Advocates welfare fund. Hence stamp of Rs.2/- is not affixed.
(Advocate)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
[RULE 4(e) (i) OF THE BOMBAY HIGH COURT
PUBLIC INTEREST LITIGATION RULES, 2010]
PUBLIC INTEREST LITIGATION (PIL) PETITION NO. _____ OF 2020
1. Chirag S/o. Rajiv Chanani ] Age: 37 Years, Occupation: Advocate ] Residing at C-701, Gayatri Shivam CHS ] 90 Feet Road, Thakur Complex, ] Kandivili (East), Mumbai – 400101 ]
2. Vinay Kumar ] Age: 29 Years, Occupation: Advocate ] B/2, The Parle Colony CHSL, ] Sahakar Road, Off Sahar Road, ] Vile Parle (East), Mumbai – 400 057. ]
3. Sumit S/o. Jagdish Kumar Khanna ] Age: 39 Years, Occupation: Advocate ] F-505, Oberoi Splendor, ] Opposite Majas Bus Depot, J.V.L.R ] Andheri (East), Mumbai – 400 0__ ] …Petitioners
//VERSUS//
1. Union of India, ] Ministry of Railway, ] North Block, New Delhi-110001 ] Through its Secretary ]
2. State of Maharashtra, ] through its Chief Secretary, ] Department of Revenue and Forest, ] Disaster Management, Relief ] and Rehabilitation, Mantralaya, ] Mumbai. ] 24
Email: [email protected] ]
3. Commissioner of Police (Railways) ] --th Floor, Area Manager Building, ] PD Mello Road, ] Sandhurst Road, Mumbai-400010. ] Email:[email protected] ]
4. Municipal Corporation of Greater Mumbai ] B.M.C HQ, Mumbai CST-400001. ] Through its Commissioner ] Email :[email protected] ]
5. Commissioner of Police ] Crawford Market, Mumbai. ]
Email: [email protected] ]
6. The Director, ] Disaster Management Unit, ] Government of Maharashtra, ] Mantralaya, Mumbai ] Email: [email protected]]…. Respondents
VAKALATNAMA
To,
The Prothonotary & Senior Master, Original Side, Bombay High Court, Respected Sir
We, Chirag Chanani, Vinay Kumar, Sumit Khanna the Petitioners above named do hereby appoint M/s. Dewani Associates, Advocates, to act, appear and plead for us in the above Matter.
IN WITNESS WHEREOF, I have set my hand to this writing on this
____6th Day of July, 2020.
25
1. Chirag Chanani
2. Vinay Kumar
3. Sumit Khanna
Accepted
M/s. Dewani Associates Advocates for Petitioner O.S Registration No: 13659 Adv. Code: I-10154 83-B, Mittal Court Nariman Point, Mumbai -400021 Phone : 022-22044923 Email :[email protected]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
[RULE 4(e) (i) OF THE BOMBAY HIGH COURT
PUBLIC INTEREST LITIGATION RULES, 2010]
PUBLIC INTEREST LITIGATION (PIL) PETITION NO. _____ OF 2020
Chirag Chanani & Ors ... Petitioner
Versus
Union of India & Ors. ... Respondents
MEMORANDUM OF REGISTERED ADDRESS OF THE PETITIONER
Chirag Chanani & Ors.
C/o. M/s. Dewani Associates
Advocate, High Court, Bombay,
83-B, Mittal Court
Nariman Point,
Mumbai – 400 021.
Ph: 022-22044923
Email:[email protected]
Advocate for Petitioner Dewani Associates