By Sahil Chandra
The Supreme Court in In Re: Guidelines For Court Functioning Through Video Conferencing During Covid-19 Pandemic passed the order on April 6, 2020 that gave legal recognition to the idea of virtual hearings that it has been struggling with for more than a year now. After a prolonged period of time of 527 days, the physical courtrooms were sought to be opened in a phased manner in the apex court. A hybrid mode of hearing has now been initiated from September 1, 2021, with Mondays and Fridays being completely virtual.
However, on the first day, post-lunch, there was no one to be seen around the courtrooms. Before Court Room No. 6, where the bench of Justice Sanjay Kishan Kaul and Justice MM Sundresh sit, there were 24 participants virtually and stalwarts of the Court, such as Senior Advocates Datar and Naphade chose to appear online. Similar was the situation before Court Room No. 5 where the bench of Justice L Nageswara Rao, Justice BR Gavai and Justice BV Nagarathna sit. There were 55 persons who had appeared virtually with only four lawyers present physically.
On September 2, the Chief Justice of India (CJI), NV Ramana, had to mute himself multiple times to address the technical glitches during hearings. Once just before being muted, the CJI could be heard saying: “What is this…”. Addressing the court staff, he remarked: “What is happening? Why is the system deteriorating with each passing day? We can’t even see the face of counsels.” In his court, over 50 participants were present virtually and none physically. As yet, the “reopening” of the top court does not seem to be quite a success.
On August 28, the Standard Operating Procedure (with hybrid option) was released. It was directed that there would be a gradual facilitation of physical hearing. A break of about 15 minutes in between was also contemplated for sanitisation purposes. As per the SOP, the average working capacity of the court rooms is 20 people at any given time. In one matter, for each party, the AoR or his nominee, one arguing counsel, one junior counsel and one registered clerk are to be allowed entry up to the court rooms. The AoRs are required to register themselves on the Supreme Court of India portal and submit their preferences for appearing before the Court, either through physical mode or through video/teleconferencing mode within 24 hours/1:00 PM next day, as the case may be, after the publication of the weekly list of final hearing/regular matters. Further, once hearing through physical mode is opted, hearing through video/teleconferencing mode to the party concerned will not be facilitated.
The entry of the counsel/parties into the high security zone is also regulated by issuance of daily “special hearing passes” for each case, which will be issued by the Court’s registry. Persons shall enter through a designated gate after requisite checks in the form of temperature, infection status, etc. The entry into the courtroom shall be only ten minutes prior to the start of hearing of the matter before which the designated waiting areas will be utilised. The movement shall be only through movement corridors created and demarcated for that purpose.
Upon a careful study of the SOP, dated August 28, the Supreme Court Bar Association (SCBA) addressed a letter to the chief justice of India, stating that it was a “non-starter”. This was in the light of the conditions for physical hearing. The requirement of special passes will dissuade lawyers from applying for physical hearing. The letter takes note of the distinct architecture of the Supreme Court, where the lawyers move from one court to another in an open-air corridor where the chance of infection is negligible. According to the SCBA, the restriction on movement “should only be with regard to going inside the courtroom and not with regard to entering the high-security area.” It was noted that the high security area has large open areas in the form of corridors where lawyers wait for matters and has large Bar rooms, libraries, canteens where Covid-19 protocols can be followed.
The suggestion of the SCBA is that the system of issuing special passes should be done away with. It suggests that the entry to the high-security area should be permitted by the use of a proximity card and the waiting areas can be libraries and lounges, and the corridors can be used if the other two places are full. It also states that limiting the number of persons to 20 in every courtroom is arbitrary as the size of the courtroom differs substantially. The number 20 can be justified only in the smallest of courtrooms. It is also stated that the adjournment of a matter at the last minute, in case the number exceeds 20, is unjustified as it will disrupt a lot of hearings. The letter also states that the number of Covid-19 cases in Delhi/NCR has fallen considerably and the positivity rate in the national capital is 0.4 percent. It further made clear that the World Health Organization’s chief scientist Dr Soumya Swaminathan has also opined that India has entered into the endemic stage of Covid-19. It has been pointed out that the experts have observed that there is a low level of transmission in India unlike the exceptional growth in previous months.
The SCBA letter refers to the fact that with the newly appointed judges, there are 15 court rooms functioning. It states that if the physical courts are resumed, the number of cases disposed of would increase substantially, thus reducing pendency. The association opined that the peak of the pandemic is past us and the situation has gotten much better. The stringent measures are uncalled for. However, this is not to say that the members of the Bar have turned a blind eye towards the situation. The likelihood of a third wave would be known immediately and suitable measures can be taken thereafter.
The apex court must resume normalcy so that in a similar fashion, the other courts could resume their normal functioning. It was noted by the SCBA in its letter that the courts in our country account for a very small aggregation of people, and even with normal functioning, this cannot result in a spike in Covid-19 cases. Other public places, such as malls, cinema theatres, marriage functions and restaurants have been allowed to open despite the fact that Covid-19 protocols are difficult to maintain there.
There had been repeated requests from many, especially from the members of the Bars across the country to resume physical hearings. At the outset, the main concern was availability of computer resources with a functioning internet connection. For many lawyers, the office infrastructure was not available at their homes, and even when it was, an uninterrupted internet connection was found wanting. The art of advocacy is such that it involves reading the courtroom and a face-to-face interaction with the judge. The demeanour and tone of the persons involved can be judged best when they are in physical proximity of each other. The disturbances in the form of background noise and interrupted voices are commonplace in virtual hearings. Another major grievance is that lawyers are kept on mute, and therefore, are not able to interject at the right moment when required. The gestures showing agreement or disagreement are also not gauged.
From the perspective of the bench also, it is not an ideal situation when lawyers are connected from their moving vehicles or from public places. This shows disrespect to the court.
With time, such incidents were widely noticed. Very recently, Justice Khanwilkar while hearing a matter had allowed Senior Advocate Dushyant Dave to argue a matter out of turn on request that he had to catch a flight. He candidly remarked that they have seen people arguing from moving vehicles and could hear arguments from the plane also.
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When the virtual mode was started before the Delhi High Court earlier this year, it was observed that when one of the parties appears physically and the other is on a virtual mode, it poses the added problem that the party appearing physically is unable to see or hear the arguments of the other side properly.
There is no gainsaying the fact that a physical hearing is certainly beneficial for everyone concerned. In this regard, the objections raised by the SCBA need to be paid heed to. The SOP introduced by the Supreme Court does not lead to a practical solution. The restrictions in the form of passes and entry procedures are an unnecessary hassle.
A lawyer who is already burdened with briefs on a daily basis and has to prepare for matters regularly will be reluctant to opt for the physical hearing solely because of the added formalities which in itself are unnecessary. This should also be seen in the light of the vaccinated population amongst whom the staff and judges of the Supreme Court are included. Vaccination drives have also been done specifically for lawyers and almost everyone has been vaccinated with most being fully vaccinated with two doses.
—The writer is an advocate