"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 L. Nageswara Rao on Tuesday remarked that on account of the uncertain COVID situation, the Supreme Court is "not in a position to take a call" as to when and how to resume physical hearings. 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 ...

"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

Mehal Jain

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