By Dr Swati Jindal Garg
Ever since the Covid-19 lockdown in 2020, normal life has taken a massive beating down. Staying indoors has become the new normal and even though people have slowly and steadily started taking baby steps out of the sanctuary of their private sanctums, normalcy as we knew it is still far away. The legal fraternity in India too bore the brunt of the lockdown as the normal functioning of courts was affected and litigation was reduced to a large extent owing to relaxation in the limitation granted by the Supreme Court through its orders in a suo motu petition.
Virtual hearings have been taking place in the Supreme Court for more than 18 months. The Court released various SOPs on giving discretionary powers to judges and the parties involved in litigation to give their acceptance to physical hearings. The Supreme Court Bar Association (SCBA), which was rooting for more physical hearings, however, opposed this SOP. Responding to this opposition, the Court released another SOP wherein physical hearings were made compulsory for two days in a week.
Just like one man’s sorrow is another man’s joy, the SCBA is pushing for more physical hearings, while most lawyers have simply welcomed the return of it. “We still want the resumption of full physical hearings for all days,” Vikas Singh, president of SCBA, reportedly, said in a Supreme Court WhatsApp chat group when asked about the resumption of Court hearings for two days a week. “The Supreme Court has acted on our representation partially; there should be more [changes] coming.” There is another section of the legal fraternity that is stiffly opposing the resumption of physical hearings, citing the inevitable onset of the third wave of Covid-19.
Senior lawyers Dushyant Dave, Ranjit Kumar and C Aryama Sundaram had their own reasons to avoid coming to Court. Dave, a former president of SCBA, reportedly, said: “The registry of the Supreme Court has issued the SOP exparte (without hearing the other side). They should have consulted the Bar. We too are anxious to attend the Court.”
Ranjit Kumar, reportedly, pointed out that requiring lawyers to obtain a Special Entry pass for each case, then being made to wait in the library and entering the courtroom just before the case hearing after following the safety processes required for Covid-19 as per the SOP was not an easy task. Moreover, physical hearing was restricted to only 20 persons at a given time.
Then there are lawyers who preferred to appear through virtual court proceedings for safety concerns and in the interests of aged and sick parents at home. Sundaram appearing before the bench headed by Justice S Abdul Nazeer, reportedly, said: “We all are anxious to see you physically, but it is not the courts but the corridors, the entry/ exit gates that we fear.” He was perhaps pointing to the fact that even though the courtrooms were being sanitised, the same is not the case with the rest of the areas that are being used by lawyers. Senior lawyer Meenakshi Arora, reportedly, informed the Court that she preferred virtual hearing as she had aged parents at home.
Another big problem that has surfaced due to the onset of the hybrid hearing system is the opening up of the senior-junior divide. It has been noted by a bench of the Supreme Court that a handful of senior advocates were benefiting from virtual hearings and many were reluctant to appear physically. The observations came from a bench headed by Justice Vineet Saran where he, reportedly, said: “Mr (Kapil) Sibal (who was appearing for the state government) is getting in-person instructions. He will get in-person instructions but he does not want to appear in person. In fact, no senior advocate is willing to appear in physical hearing…. It’s a far more efficient system.” To this, Sibal, reportedly, said that many young advocates were also appearing through virtual modes.
However, many young lawyers have faced difficulties because of virtual hearing, Justice Saran said. This is true and has been aptly explained by Alok Prasanna Kumar, Senior Resident Fellow at Vidhi Centre for Legal Policy. He said in an interview: “Earlier, senior counsels would be difficult to get for cases in different cities as doing one outstation matter meant letting go of several matters they would have in their own city. However, with hearings online, they can argue in different courts from the comfort of their homes, without giving up on any matters.”
A similar view was taken by Senior Advocate Mahalakshmi Pavani who, reportedly, said: “Advocates found it more prudent to conduct hearings from their screens. There is also the worry that once in physical court, advocates cannot effectively attend virtual hearings before other courtrooms. To avoid this logistical hurdle, advocates have found it more prudent to skip physical appearances.”
While a majority of advocates is suffering, some 20% of senior ones are doing exceptionally well as they are able to attend High Courts, Supreme Court and NCLAT hearings in their own comfort zones. “If Delhi has eased restrictions on malls, restaurants and marriage halls, restricting the functioning of the Supreme Court is not justified. Courtrooms are our homes, we belong to that place, but we have become strangers in our own houses for the past two years.
This is completely unacceptable to us,”said Pavani.
Vikas Singh explained why senior lawyers want virtual hearings to continue: “Senior advocates can sit and argue in 10 courts. They want that luxury to remain.”
The crux of the matter is that while virtual hearings helped high-profile lawyers to take workations (work plus vacation) to another level, with big names like Senior Advocate Mukul Rohatgi appearing in a Supreme Court case from his farm house, the not so lucky ones are forced to go back to their home towns due to lack of work. As final hearings have not been taking place, the stakes involved in preliminary hearings went higher. More and more senior and influential advocates were hired even for preliminary matters, increasing their workload and eating into the work of other lawyers, who owing to their lack of influence and face value, are unable to get matters listed on priority in these difficult times.
In fact, not only lawyers, but their support staff has also been badly hit. “Some lawyers have left Delhi, while others have even left the profession,” said Pradeep Kumar Rai, Vice-President of SCBA. “Quite a few people couldn’t pay the annual Supreme Court Bar Association fees. We also launched a financial assistance scheme and were surprised to see that many lawyers, who one would think were doing well, required assistance.”
The old adage—fall seven times, stand up eight—seems to be working in favour of young lawyers who not only lost work as all trial courts were shut, but also lost the opportunity to network, thus shutting off traditional avenues of soliciting work. Most are only now realising that they are made of stronger stuff. While many junior lawyers have decided to leave the profession till conditions improve, others have found new ways and avenues to survive. Some took up higher studies and other courses to hone their skills, while others tried new fields in law, something they could not do earlier due to lack of time.
However, juniors are happy about one thing. In the online mode, especially in Webex, submissions are made one at a time and it becomes extremely cumbersome if multiple people speak together. So junior lawyers are happy that they can finally finish making their submissions in peace. Some also say that they are being heard more patiently by the judges who are allowing them to finish their submissions. The fact that judges have fewer matters to hear can also be a contributing factor to their being more patient. These virtual hearings are happening from the relative comfort of their chambers/homes and as there is a lack of audience, the situation is less scary for junior lawyers. Many senior advocates are allowed leeway in physical courts and can get away with dramatic body language and flamboyancy that will never be appreciated in a junior lawyer. In the virtual set-up, the scope for dramatics is limited and hence, those who cannot indulge in it feel less pressurised and safer.
Another aspect that has been beneficial for young advocates is that filing has now been made online. It is now as simple as sending a mail or uploading a few files in a portal. At best, any discrepancies can be rectified and resent and that too from the comfort of one’s home. There is no need for a battery of supporters to manage different courtrooms and the registry. One can appear both in the High Court and the Supreme Court on the same day at more or less the same time.
Franklin D Roosevelt rightly said: “When you come to the end of your rope, tie a knot and hang on….” It might be stormy now, but it can’t rain forever.
—The writer is an Advocate-on-Record practising in the Supreme Court of India, Delhi High Court and all district courts and tribunals in Delhi