Bar Council of India's (BCI) Chairman, Manan Kumar Mishra, has urged Chief Justice of India (CJI) SA Bobde to issue appropriate directions to all Courts to resume physical open court hearings from June 1, 2020.
Claiming to have consulted with State Bar Councils and a majority of Bar Associations across the country, Mishra conveyed the reservation and grievances of advocates regarding the prevalent practice of virtual hearings, through a letter dated May 26.
This letter is in furtherance of a communication made by him on April 28 on the same issue. In that communication he had requested the CJI that though virtual hearings were the need of the hour, the practice should be done away with as soon as the COVID-19 lockdown is lifted. It was his claim that virtual courts are only accessible to a few lawyers, which leaves 95% of the fraternity brief-less, or without work.
Reiterating his apprehensions, Mishra has pointed out that the Supreme Court, High Courts and most lower courts across the country have been functioning in a restricted manner, wherein only urgent matters are being listed before virtual courts. He has further apprised the CJI that with respect to even those matters which ought to be listed, several complaints suggest that not all requests for listing have been entertained adequately.
As a result, he adds, only certain privileged Advocates are beneficiaries of virtual hearings whereas a huge majority of lawyers are left without work and therefore struggling to make ends meet. The current plan for the functioning of courts, through virtual hearings, offers no respite to these disgruntled advocates, contends the BCI Chairman.
Apprising CJI Bobde of the 'harsh reality' of virtual hearings, Mishra thus throws light on the anguish of Advocates:-
"The cases of only a few fortunate persons are being fixed, the kith and kin of only a few have earned huge money during this lockdown in almost all the High Courts. Such messages are pouring regularly in BCI.
This has caused great loss to Common Advocates and there is a resentment developing among 95% of Advocates in almost all Courts.
Therefore, we are bringing all these harsh facts to the knowledge of our Apex Authority. Almost same is the case with Supreme Court Advocates."
Expressing strong reservations against the Courts functioning through virtual hearings, the letter states,
"Our view is that virtual court cannot displace and replace traditional courts even partly due to lack of knowledge and training in technology, lack of technological infrastructure and also due to law and procedures of dispensation of justice in trial matters, which, as we said, occupies a space of 80% in the litigation spectrum in India."
'Litigants Unable To Get Justice Through Virtual Courts' : Bar Council Of India To Hold Consultations On Resumption Of Physical Functioning Of Courts
Invoking various features and procedures of a traditional hearing, Mishra vehemently advocates against the continued reliance on virtual Courts.
"We cannot even imagine of trial court work being done in/through virtual courts proceedings. Can we think of recording of evidence in virtual courts? Exhibiting documents, confronting witnesses with documents, watching the demeanor of witnesses and, above all, ensuring that the witness is deposing without any pressure, coercion or undue influence, are some salient features of traditional court which would be impossible to achieve in virtual courts.
We deeply ponder and wonder and find no plausible answer, as to why are we encouraging virtual hearings in the Supreme Court and High Courts when the system of Actual/Physical/face to face open court Hearing is fool-proof and fully successful. It is fully transparent and gives full satisfaction to all and when more than 80% of Supreme Court and High Court Lawyers are comfortable with Actual Hearings in court rooms, then why should we encourage Virtual Hearings and to think further about continuing with this system even after Lockdown."
Admitting that the COVID-19 situation will not go away anytime soon, the need to work safely around the pandemic is pressed by Mishra. Accordingly, the CJI has been asked to consider coming up with a suitable scheme, containing guidelines which would facilitate Advocates to safely appear physically in Court for open court hearings. To this end, the following suggestions have also been given:-
"We could start with listing of limited number of cases, and allow only those Advocates whose matters are listed to enter court rooms/premises, and time slots for hearings may be fixed, leading to even lesser people inside court rooms/premises at a particular time slot. Waiting halls ensuring social distancing norms may be developed in the already available area. The Bar Associations/Chambers/Libraries may not be opened for general sitting of the Advocates, only those Lawyers may be allowed to enter the Bar Rooms/Chambers who have some work in the Courts.
Those Advocates who wish to mention their matters may be allowed entry at a fixed time subject to showing their identity to the appropriate authorities at the entry gates of the Courts and particular time slots may be fixed for mentioning too, to be regulated by someone deputed for each of the courts which are sitting and working. All Advocates wishing to mention may be asked to wait in a hall, where social distancing may be ensured and their mentioning be regulated and after mentioning they would be requested to leave the court premises and regulators will have to ensure the same in a strict but polite manner."
Averring to those who are at greater risk to the Corona Virus, on account of age or medical health, Mishra states that virtual hearings may be considered only for them, subject to the consent of Advocates from both parties. This indulgence, he adds, may be allowed only till the time the Virus is looming large as e-courts cannot be allowed to function when normalcy is resumed.
Click here to download letter