"You Get A More Patient Hearing Via Video Conferencing Than In Physical Court": Justice SK Kaul

"You get a more patient hearing via video conferencing than in physical court", Justice S. K. Kaul told SCBA President and Senior Advocate Vikas Singh on Wednesday.

The remark came when a matter, in which Mr. Singh was appearing, came up before the bench of Justices Kaul and R. Subhash Reddy and it appeared that Mr. Singh happened to be unmuted slightly late.

"We can't hear you, Mr. Singh", said the bench.

Mr. Singh, on being unmuted, submitted, "This is what is happening in virtual hearings! Matters are being decided even without hearing advocates!"

"No, no, don't say that. The virtual hearing system is working very well. You, in fact, get a more patient hearing via VC than in physical court", observed Justice Kaul.

"I have a live example!", pressed Mr. Singh.

"No, no...", said the bench.

The Supreme Court Bar Association (SCBA), on Monday, has filed a writ petition before the Top Court seeking quashing of the Standard Operating Procedure issued by the SC Registry last week for enabling 'Hybrid Physical Hearing' from March 15 onwards.

Supreme Court of India had issued its Standard Operating Procedure dated 5th March, directing resumption of hybrid court hearings from 15th March. The Court issued several directions regarding its functioning in consideration of the ongoing Covid 19 pandemic and suggestions given by the Bar Associations. The Court devised a pilot scheme to hear cases in the hybrid mode on an experimental basis. According to the scheme, the final hearing and regular matters listed on Tuesdays, Wednesdays and Thursdays will be heard in the hybrid mode , after consideration of the number of parties in a matter and the limited capacity of the Court rooms. However all other matters, including those listed on Mondays and Fridays will continue to be heard through video -conferencing mode.

On Saturday, the SCBA decided to not accept the said SOP as it was prepared without taking into confidence the Bar, despite the assurance given to them by CJI Bobde in the meeting held on March 1st 2021.

In its plea, the Association insisted that hybrid hearing should have been for all days i.e. from Monday to Friday. However, in the impugned SOP, it said, "there is no provision for hybrid hearing for the matters listed on Monday and Friday, i.e. Miscellaneous days when primarily fresh matters are listed."

The plea also raises the issue of oral mentioning before the Supreme Court, a practice that was prevalent during pre-Covid days. It states,

"For around last one year this Hon'ble Court is working through virtual hearing and there is no provision for Oral mentioning in Standard Operating Procedure dated 05.03.2021 and as a result lawyers would still not be able to make Oral mentioning."

It stated that a large number of urgent matters are going unheard because of the peculiar system of listing, i.e. sending an email to the Mentioning Registrar giving the reasons for urgency.

The Association said that most of the High Courts, including the Delhi High Court, have either started holding Physical Courts or are in the process of starting Physical Courts; and it is high time that like every other institution, the Supreme Court also restores normalcy and begins physical hearings with adequate precautions like temperature check at entry points, wearing of masks and maintenance of social distancing.

Stating that the pandemic is now "very much in control", the President of the Supreme Court Bar Association has urged the Chief Justice of India to open the Supreme Court for physical hearing of cases.

Last week, a letter addressed to the CJI, SCBA President Vikas Singh wrote,

"There is no justification to not open the Supreme Court for physical hearing completely. As far as safety is concerned, it can be ensured that the lawyers continue to wear their masks and maintain as much practicably possible social distance so that we are not compromising the safety of the lawyers. Adequate thermal checks can be made at entry point for lawyers and litigants entering the Supreme Court and hand sanitizers can be placed outside each Courtroom. These steps are enough for starting full physical hearing in Supreme Court which is the only way this institution is supposed to function."

Singh 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.

He stated that virtual hearings cannot by any stretch of imagination be equated to open hearing for the following reasons:

The right of the Registry to mute and unmute lawyers at will is completely contrary to the concept of open hearing. There are instances galore where lawyers are not unmuted when their matters are called out or where a matter is adjourned without it being called out and without unmuting the lawyers.

The quality of voice and video transmission has not been upto the mark resulting in lack of adequate communication between the counsels and the Judges.

There has been no mentioning in the Supreme Court because of the technical glitches in virtual hearing since the pandemic has hit, which has never been barred in the history of this Court. In fact, there has been a practice in this Court for mentioning in the Chief Court which has been completely denied to the Bar and also a practice of mentioning matters before judges in respect of matters which have already been listed before a particular Judge which also has not been permitted in this virtual platform created for the Supreme Court.

In batch matter hearings, invariably all counsels are not unmuted and hence a very many times the counsels are unable to make submissions.

Even in the platform being used by the Delhi High Court with the Registry no right reserved with the Registry to mute lawyers and the right to mute or unmute is exclusively vested with the counsels appearing in that Court.

Singh said that the younger members of the Bar are suffering greatly due to the current virtual system coupled with truncated listings, hence now, in view of the fact that the pandemic is practically over, at least in Delhi, there is no justification to continue with the virtual system and full physical court hearing ought to resume at the earliest in the larger interest of the Bar.