For the past 3 months, the Supreme Court has stopped the physical hearing in the Courts. The Court has been functioning through Video Conferencing instead. The earnest desire of the Court to be available for the dispensation of justice is clearly reflected through the arrangements for video conferencing. However, by and large the feedback that is available from the Advocates is that most of them, in fact almost all, are not satisfied with the hearing through video conferencing. The view is so prevalent that there is no substitute for physical hearing.
The manner in which we have learned about Covid and the manner in which it is still unfolding with each passing day, in terms of gravity, spread and treatment, it is evident that this problem will be here to stay for another few months, if not a year. In the above backdrop, I thought of following suggestions for starting the physical hearing of the Courts without compromising the safety and security either of the the Judges , Court staff, or the Advocates and their Clerks.
As of now there are 4 or 5 Courts functioning through video conferencing on a given date. We have had the experience of limited functioning of the Courts in the first week after Holi vacation, when about 4 or 5 Courts used to function and about 16 odd matters used to be placed before each Court with the split of the cause list in two[DPA1] parts. During such limited functioning of court, there used to be a notice above the cause list of each of the court room stating that first 8 matters will be taken up first and the advocates only in those matters will be allowed an entry in the court room. Once these eight matters are over, court room will be vacated by advocates. Judges will take a break of 5 minutes and the court used to re-assemble thereafter. Before court re-assembles advocates in remaining eight matters were given an entry. Thus, List of each court used to be split in to two parts to avoid crowding of courtrooms. The restriction imposed was that only Advocates and if a Senior Advocate is engaged, then the Senior Advocate too , will be allowed to enter the courtroom in their respective cases. In normal circumstances, as we all aware, the lawyers enter as a small contingent with assisting lawyers, office juniors, clerk and clients etc. My suggestion in this regard is that we should have the three phases/sessions of hearing of the matters in 4 -5 Courts at a given point of time. There can be a first session from 10:30 to 12:30. Second session can be 1.15 to 2.45 and the third can be held between 15.15 to 17 hours. With this, all the Courts should try to function on a given day. We can follow the same pattern of hearing with not more than 20 matters before any bench with the list being split into three or more parts. The functioning of the benches can also be based on its physical location, to avoid crowding and mixing of the lawyers. A separate entry to certain court rooms can be provided to allow the physical distancing of Advocates safely at a given point of time . In the case of Supreme court, while two benches/courts which are situated in the front side can assemble, one or two Courts can assemble on Mezzanine floor and 2 two more courts can be made functional towards back side of the court building . The court will have to compromise with its sitting order of seniority from Chief Justice to junior most puisne judge to accommodate such sitting arrangement . On any slot of hearing , the Advocates who have the matter listed will only be allowed an entry through main security gate , in addition to the Senior Advocate who is engaged in a particular matter. A day before the date of listing concerned, the Advocate should provide list of counsel/Sr Advocate to the Registry and they will only be allowed an as per their slots. The clerks should be allowed only at the beginning of the slot so that arrangement of the books and files can be made before the Courts assemble. Litigants can be provided with the video view so that they are not deprived of the opportunity of being witness to the proceedings. Since there will be less number of matters divided in slots, court staff should also be assigned work in turn based on slot wise . As number of matters will be less, the work can be handled by lesser staff. This may allow those members of staff who are traveling in public transport system to take off in between. In the deployment of court staff, they should be given work with a gap of 3 to 4 days, so that in case of any symptom, coming to the court can be avoided. Number of matters that the Courts will be able to handle in this manner will be much more than what are being handled through video conferencing. Since this is based on physical hearing process, the Courts, the Judges and the Advocates will be much more satisfied. The physical hearing is the essence of the court proceedings which can't be overlooked at all.
Since number of matters taken up for hearing will be far less than what the Courts in normal situation are able to hear, even saturdays can be kept for hearings. Though the number of working days will be increasing, that is required to compensate the loss of working days. Since the Judges will not have more matters to deal with, on a given day, addition of one more working day will not cause any work pressure on the judges. The libraries should switch over to e-library, the procedure should be simplified as possible I don't suggest that this will be an ideal working situation. However, this model of working can be experimented for one or two months so that the comparison of what we are experiencing through video conferencing and what we are going to experiment with can be made. Even in these proceedings, the courts can be a little bit lenient if there is a specific request made by the Advocates for inability to attend the proceedings as a result of either the infection or because of the sealing or containment of the area in which they reside. It is my suggestion that this form of physical hearing is unavoidable as we don't see normalcy in the near future.
Views are personal only
(The author is a Senior Advocate at Supreme Court of India)