Only A Handful Of SC Advocates Give Consent To Appear Physically In 1000 Cases Listed For Physical Hearing

Physical hearing in Supreme Court is unlikely to resume from September 1, after barely a handful of lawyers gave their consent in favour of attending physical proceedings inside courtrooms.

Certain courtrooms had been readied to resume limited hearings from September 1, in accordance with instructions received from the 7 Judges Committee of Supreme Court. A list of 1000 matters, which would be considered by the Top Court during this experimental restoration of normalcy in Court functioning, had also been released.

However, the fundamental pre-requisite to go ahead with such hearings, of obtaining a written consent from all stakeholders expressing their willingness to physically appear in Court, has not been fulfilled.

It has been confirmed that in the 1000 matters that were to be listed before the Top Court, merely 4-5 persons gave their consent to undertake the risk of exposing themselves to the COVID-19 virus by physically appearing in Court.

Notably, the Supreme Court Bar Association (SCBA), the Supreme Court Advocates on Record Association (SCAORA) and the Bar Council of India (BCI) had on a number of occasions brought up the issue of difficulties being faced by advocates on account of physical hearings not being conducted by Court. Various meetings were held wherein office bearers from these bodies made representations before the Supreme Court Judges and urged the Court to resume normal hearings. Several suggestions and recommendations to ensure that safety and precautionary were in place were also forwarded.

Despite the plight of lawyers, clerks and other court staff being raised as the most prominent ground to restore normalcy in the functioning of courts, it appears that the Advocates appearing in Courts themselves are unwilling to take such a risk just yet.

Speaking to LiveLaw about this particular peculiarity, Senior Advocate Jaideep Gupta said that "the anomaly here is that the Bar bodies are claiming an overwhelming support for physical hearings, but the people actually working in court seem to be backing out".

Mr. Gupta, who himself was one of those who consented to physical hearings stated that he did so for his client, but went on to elaborate that the Supreme Court premises are a dangerous place at this time. He said-

"The courts are a very dangerous place because there is no restriction on people moving around the campus. But I consented to a physical hearing since when an opportunity is available for the client I don't want to delay his case.

I still think that the hybrid model wouldn't work because we can't do physical as well as virtual hearings at the same time. It should be either virtual or physical, but physical is difficult right now as we are unable to control our environment outside the courtroom. For courtrooms you can make an SOP, but you can not do that for the campus…

…It must be pointed out, however, that Courts aren't closed. Courts are open and a lot of work is being done. Virtual hearings, though not perfect, are still getting the work done."

Voicing concern regarding the situation, Senior Advocate Dr. Maneka Guruswamy also stated as follows-

"The public health concerns are significant. The Court and legal profession need to balance the risk to health with those of the benefits of physical courts. But, clearly virtual courts are here to stay, and the challenge now is how to expand the number of cases the virtual court system can process. Also, how better to enable access to the technology necessary for more lawyers to navigate virtual courts."

Given the repeated pitches made by Bar bodies to persuade Supreme Court to resume physical hearings on account of sufferings of young advocates, LiveLaw reached out to a couple of such advocates who have been practicing independently and have suffered in terms of work due to the pandemic situation.

One such advocate, Priyadarshi Banerjee, who recently started practicing independently said that while work was definitely suffering, it is understandable that lawyers would be skeptical about gathering in Court.

"In a situation where we all know at least one person personally who has died due to COVID-19, where India is belting out 70,000 cases per day, it is normal for people to be scared to take up physical court assignments. Crowding is a real concern which surely increases the risk of contracting the disease.

Yes, VC proceedings are inadequate and work is surely suffering. But it is just unsafe to be frank! However if the Court believes it's time to reopen then I like the idea of it being optional. However really cannot blame anyone if they refuse consent in the present situation. I am guessing everyone is waiting for a vaccine to come", he said.

Echoing this sentiment, Advocate Irshan Kakar, who also has his own practice goes on to suggest that the current infrastructure might be sufficient to conduct hearings in matters which are not being listed at present. Having spoken about the impending risk of reopening Courts at the moment, Kakar went on to urge that "where technology can be utilised to cut any such risks to zero, our generation is duty-bound to embrace & improve on such technological measures in the interest of the future rather than remain nostalgic for times gone past. All of these things would weigh in the minds of lawyers when making a decision regarding attending physical hearings…

…Yes, work is down as regular hearings are all being adjourned, bills are stuck and clients are wary of starting new litigation. I guess physical hearings would improve matters, but it would do equally well if they start hearing regular matters apart from just urgent matters through virtual means. The Hon'ble judges are hearing over 1000 cases during lockdown which is appreciable, it shows the success as well as potential of this medium. I feel with the present infrastructure as well cases which aren't listed for final arguments and evidence could be heard."

Advocate Ashish Virmani, who has had an independent practice for some years now, sees the refusal to give consent to appear before a physical court as a statement by lawyers in support of the present system of virtual courts.

"Lawyers have given a resounding support to VC hearings by not giving consent for physical hearings, and rightly so. The time has come, albeit forced on us, to evolve into a fully online Court system with even sensitive matters being heard through VC, with cooperation, support and patience from both the bar and the bench", claimed Virmani.

During an interaction with office bearers of SCBA, SCAORA and BCI on July 24, the Judges Committee expressed that they were fully conscious and deeply concerned about the difficulties faced by the lawyers and were anxious to gradually restore normalcy in physical functioning. The Committee, which was constituted on July 22 to look into the possibility of resuming physical hearings, had also assured that inputs and suggestions of these bodies would be duly taken into consideration as regards timing and modalities.

However, they had added that a decision in that regard had to be guided by a holistic assessment of the situation based on medical advice, and also taking into account the safety and health of lawyers, judges, litigants and court staff.

On August 11, the 7-Judges Committee held a meeting in which it was decided that physical hearings were to be resumed in a limited scope, subject to the decision of the 'competent authority'.

The Committee, had categorically necessitated the prior written consent of all stakeholders in order to go ahead with such hearings.

Having considered several recommendations and suggestions received by them from advocate bodies and acting on the advice of medical experts, the Committee had directed the concerned authorities to ensure proper social distancing as well as setting up of desired infrastructure in order to facilitate the implementation of the pilot project. The Committee had also recommended that three of the biggest court rooms in Supreme Court be readied within a week to accommodate physical hearings on a trial basis, as a pilot project.

Communicating this decision of the Committee to SCAORA, the Supreme Court Registry had clarified that "on an experimental basis, and as a pilot scheme, three amongst the Court Rooms may be got prepared, within a week's time through concerned agencies, strictly adhering to the prescribed distancing and other norms and as per medical advice with regard to the proper infrastructure required in these Court Rooms;

Subject to the decision of the Competent Authority, it has been suggested that a limited number of cases be listed for physical hearing on experimental basis after ten days in such readied Court Rooms upon prior consent and willingness in writing of all parties to such matters/cases".

It had also been clarified that only specific matters would be taken up for physical hearing while miscellaneous matters would continue to be heard through virtual means.

"Subject to the directions of the Competent Authority, only a limited category/number of matters for final hearing may be listed for physical hearing inside such Court Rooms, and the numbers may be gradually increased if the ground situation so warrants and permits", stated the communication with regard the decision of the Judges Committee.

Despite the infrastructure being set up and instructions of the Committee being strictly followed, the project has fallen through since lawyers are not willing to physically appear in Court just yet.