"We Are Not In Position To Take A Call On Account Of Uncertain COVID Situation": Justice Nageswara Rao On Resumption Of Physical Hearings In Supreme Court

Justice Rao, sitting with Justice Aniruddha Bose in the Supreme Court premises, had asked Senior Advocate P. S. Narsimha if the latter prefers to argue virtually from the confines of his office or if he  would like to be in the courtroom physically before the bench.

When it was indicated before the bench that the COVID numbers seem to be rising again, Justice Rao said,

"Yes. That's why we are not in a position to take a call. One moment you feel that things are improving and then suddenly there is information that the third wave is around the corner"

Mr. Narsimha said that while VC hearings have their advantages, for final hearing matters, he would prefer physical hearings. At this point, Justice Rao remarked that the Court has been hearing advocates finally over a span of several days via VC.

Justice Rao commented that VC hearings are 'here to stay' and that 'the technology can be put to good use'.

At the same time, the judge expressed that 'advocacy is not at its best when on the screen as compared to when in court' and that 'eye contact is missing'.

"We are missing you all. We are here sitting in the court and we see that seats before us are all empty, we only have the law clerks sitting in front of us", said Justice Rao.

Last month also, the Supreme Court Bar Association (SCBA) wrote to CJI NV Ramana to consider the resumption of physical functioning of the Supreme Court in view of the dip in COVID-19 cases.

After going virtual since the onset of pandemic in March 2020, the Supreme Court of India on July 30th heard a case in physical court where both parties appeared physically. A Bench of Justice L. Nageswara Rao and Justice S. Ravindra Bhat had directed the case to be listed for physical hearing after the counsel for both the parties in a criminal matter agreed to appear physically to present their case. The case will be further heard on September 2, when also the parties will appear physically.

Talking about his experience, Advocate Rajesh Shrivastava told LiveLaw that it was great to be inside the Court with no fear of connection being snapped or being muted, after so long.

He said that

" The feeling was similar to when I first time came to supreme court in July 1995. There is no substitute for the comfort which physical appearance before the court will give you. It was an emotional moment to be present in court in person. I must thank Hon'ble judges for the opportunity. Looking forward for next hearing."

Elaborating on why he prefers physical hearing over virtual hearing any day, Mr. Shrivastava said that the human touch is an essential part of justice dispensing system and there is no substitute for the same. "While one can modulate one's arguments keeping in view the reaction of the Court, the same is missing in virtual hearings", he said.

The onset of COVID-19 led the Supreme Court to adopt virtual hearings for safety of lawyers, litigants, court staff, judges and other stake-holders, and to ensure that justice was delivered to the public without any disruptions.

The last one year has seen litigants and lawyers being divided on the issue of resumption of physical hearings. While some prefer continuation of the virtual norm calling it quite the success, especially considering the unprecedented situation in which it started, several others insist on reverting back to hearings in physical courts.

Last year in August , the top court had decided to resume physical hearing on an experimental basis in certain court rooms for final hearing of matters with the consent of advocates. Though a list of 1000 cases for physical hearing was published, it did not take off as only a handful of advocates consented to it.

When the Delhi High Court had in January this year decided to resume large-scale physical hearing before itself and subordinate courts in Delhi with effect from January 18, it had received severe backlash, so much so that pleas were filed before the Apex Court challenging the decision.

A Bench headed by the then CJI SA Bobde had observed that while the Court was eager to 'go back to action', however, the same would be done only after taking into account the opinion of health authorities.

A difference of opinion regards the resumption of physical hearings was again witnessed during the hearing of the case, as Senior Advocate Kapil Sibal had raised the issue pertaining to the 'clear and present danger' involved with lawyers exposing themselves to COVID-19, while Senior Advocate Vikas Singh had stated that the common man was unable to access justice due to the virtual mode of hearing.

As a result of the backlash, the Delhi High Court had then decided to permit lawyers to appear before it via-video conferencing, on an advance intimation.

The Coordination Committee of the Supreme Court had on February 13th, 2021 clarified that once physical hearings before Supreme Court resume with Virtual Courts in a hybrid manner, the parties will have an option to appear physically or virtually.

The Supreme Court Bar Association in March through its representation to CJI had asserted that virtual hearing was only a 'stop-gap' arrangement to keep the wheels of justice moving during the pandemic, and that Open Court hearing is both a convention and a Constitutional requirement. Stating that the pandemic was 'very much in control', it had urged CJI to open the Supreme Court for physical hearing of cases.

Post several representations made in an attempt to restart physical hearings by Supreme Court Advocates On Record Association, SCBA, etc., the Supreme Court of India had decided to start hearing cases in a hybrid manner from March 15th, 2021 on experimental basis.

However, the second wave of covid and surge in cases put a halt on the efforts of resuming court hearings physically or in hybrid form. The Bombay High Court which had begun hearing matters through physical hearing in December, 2020 also had to get back to virtual hearing in part.

Supreme Court Judge, Justice SK Kaul during one of the hearings before him had remarked  that virtual hearings gives lawyers a more patient hearing via video conferencing than in physical court.

In April, Justice Chandrachud, during launch of Supreme Court's new website for Judgments and e-Filing had addressed the apprehension amongst the litigants regards the virtual hearing. He had stated that the idea of having virtual courts is to show flexibility of the Indian Judicial system and not to replace the physical hearing. However, they are also conscious of the need to protect public health of the lawyers, litigants who come to Courts across the country.

Recently, in June, Justice DY Chandrachud, who is also Chairperson of the Supreme Court e-Committee had addressed a letter to the Chief Justices of all the High Courts, stating that it may not be possible to conduct physical Court hearings due to the ongoing COVID-19 pandemic and courts may resort to hybrid model of hearing for some time.

The e- Committee had therefore proceeded to authorise the High Courts to make VC arrangements on any platform of their choice and re-appropriating available funds in case they face any issues with the present VC platform. While acknowledging the digital divide that exists in the country specially in rural areas, CJI Ramana had recently during a panel discussion emphasised the necessity of providing Centres exclusively to provide facilities to Rural Lawyers to address the Courts.

While many institutions around the country have gone back to physical functioning, the Courts in India have continued to function in virtually.

"In the middle of difficulty lies opportunity", a quote by Albert Einstein perfectly describes how the Indian Judiciary, through virtual courts, dealt with the situation of pandemic that it confronted since last year.

The Covid induced digitisation of courts was not a pre-planned execution. Therefore, several issues were faced by people while getting used to the new order.

Some of the issues flagged by lawyers regarding virtual courts have been poor connectivity, inferior audio-video quality and failure to accommodate all the lawyers who appear in a case at a time. Others include not being un-muted by the court staff and matter being adjourned without hearing the counsels, and quality of voice and video transmission not being upto the mark.

Those in favour of virtual courts or a hybrid system have argued that it gives more flexibility to litigants and safeguard the safety of the parties.

While it is true that an open court system cannot be fully replaced by virtual system, it is important to acknowledge that in the unprecedented crisis that the country was faced with, virtual courts have been a saving grace for both people in the profession and the public.

As stated by Justice Chandrachud in his letter to Chief Justice's of High Courts, during the course of the pandemic, 96,74,257 cases (High Courts: 33,76,408 and District Courts: 62,97,849) were heard by courts through video conferencing from 25 March 2020 till 30 April 2021 using the digital infrastructure provided by the e-Courts project.

Considering the number of lives lost due to COVID in first two waves, the pace of vaccination in the country, and the fact that a third wave of the pandemic is said to be imminent, virtual courts and hybrid hearings might be here to stay for some more time.