Plea To Declare Virtual Court Hearing As Fundamental Right : Supreme Court Issues Notice To BCI, SCBA & 4 HCs
The Supreme Court on Monday issued notice to the Bar Council of India, Supreme Court Bar Association and four High Courts on a writ petition seeking a declaration that virtual court hearing is a fundamental right.A bench comprising Justices L Nageswara Rao and BR Gavai issued notice on the writ petition which sought for the retention of the hybrid options for physical and virtual hearings...
The Supreme Court on Monday issued notice to the Bar Council of India, Supreme Court Bar Association and four High Courts on a writ petition seeking a declaration that virtual court hearing is a fundamental right.
A bench comprising Justices L Nageswara Rao and BR Gavai issued notice on the writ petition which sought for the retention of the hybrid options for physical and virtual hearings in courts saying that it enhanced the right to access justice.
The High Courts of Uttarakhand, Bombay, Madhya Pradesh and Kerala are arrayed as respondents in the petition. The bench also impleaded the BCI and the SCBA, observing that it wanted to know their views on the matter.
The petition was filed by an organization of lawyers called "All India Association of Jurists" and legal reporter Sparsh Upadhyay, challenging the recent decision of the Uttarakhand High Court to revert to complete physical hearings, without hybrid option.
Although Senior Advocate Sidharth Luthra , the petitioners' counsel, sought for an interim order to stay the decision of Uttarakhand High Court, the bench said that it cannot pass any such order at the present juncture.
Senior Advocate Vikas Singh, the President of the SCBA, told the bench that he was opposing the petition and will file an affidavit in that regard.
Court room exchange
Luthra said that the first petitioner organization represented around 5000 young lawyers.
"Young lawyers whom you mention want physical hearing", Justice Rao commented.
Justice Gavai made a reference to the statement made by the Bar Council of India Chairman Manan Kumar Mishra that the livelihood of many advocates were affected due to virtual hearings.
In a lighter vein, Justice Gavai commented that due to virtual hearing, some can afford to appear from locations like Nainital or Mussorie.
"Mr Luthra, you know the difference between online courts and offline courts. In (physical)court, there is an eye to eye contact and this makes the lawyer's arguments more effective. How will the young lawyers learn?".
Luthra said that he was seeking a relief that the hybrid option should be retained.
"Hybrid option should not be done away with. The litigants will save a cost on the lawyers to travel & also reduce the carbon footrpints. It'll also be a relief for the litgants", he said.
The bench asked if the petition is for the litigants or for the lawyers. The bench also asked which fundamental right of the lawyers was being violated.
Luthra submitted that virtual hearing eased the access to justice, which has been recognized as a fundamental right. He also referred to a Parliamentary Committee report which suggested that the Courts should retain the hybrid option. In response, the bench observed that virtual court hearing was adopted as an emergency measure in view of COVID.
"Hybrid court cannot function forever and physical courts cannot be just done away with. What is the fundamental right being violated here? 19 (1)(g)? Let us hear the Bar Council and SCBA next time", Justice Rao commented.
After the bench issued notice, SCBA President Senior Advocate Vikas Singh said, "The SCBA stand is clear. We want full physical hearing".
The petition has been drawn and settled by counsel Mr. Siddharth R. Gupta and the same has been filed through AOR Mr. Sriram Parakkat.
The petition had also impleaded Registrar Generals of 3 High Courts of the country, vis Madhya Pradesh High Court, Bombay High Court and the Kerala High Court averring that the SOPs of the High Courts, though permit virtual hearings,many Courtrooms were compelling and coercing lawyers to appear only physically. It was also contended that many High Courts were not conveniently providing joining links virtually for attending their cases through a virtual mode in the hybrid model adopted by them.
The petition had also averred the denial of access to the facility of conducting cases through virtual mode is akin to denial of Fundamental Rights under Article 19 read with 21 of the Constitution of India.
Therefore, the plea had sought writ of Mandamus restraining the Registrar Generals of all the 4 High Courts from denying access to virtual courts through Video Conferencing to any lawyer and Journalists intending to opt for the same only on the ground that physical hearing in the concerned High Court has commenced and the said mode of physical hearing must be preferred.
The petitioners had thus pleaded that access to virtual courts for dispensation of justice by the counsel or the client was an essential facet of Fundamental Rights guaranteed under the Constitution of India and thus could not be lightly denied to the lawyers.Petitioner number 2 (legal Journalist) in turn had pleaded that the denial to virtual access of courts in fact has the effect of denying him the freedom of speech and expression under Article 19(1)(a) as they would be denied their right to report the proceedings on a real-time and live basis.
Referring to the judgment of M.R. Vijay Bhaskar v. Chief Election Commissioner, the journalist had claimed that if access to virtual courts is wiped out, then the exercise of Fundamental Rights would become impossible.
The matter is now expected to be heard after 4 weeks.
(Case Title : All India Association of Jurists and another v. High Court of Uttarakhand and others)Click Here To Read/ Download Order