The Gujarat High Court is one of the first High Courts in the country to start functioning virtually. In the beginning of Covid, only a few benches were functioning, but with the passage of time and a slight reduction in the number of Covid cases, almost all the benches became virtual. The Chief Justice's Court took one step further by starting live streaming of proceedings on YouTube. Pleased with the acceptability and success, almost all the courts of the High Court of Gujarat had adopted live streaming.

Obviously, there are some advantages and disadvantages in physical and virtual functioning of the court. But the happenings in the Gujarat High Court Bar Association suggest that the focus on the debate on 'hybrid' or 'physical' hearing has been lost, leading to a marked division among the lawyers.

The High Court was functioning virtually post Summer Vacation till 15.08.2021. A General Body Meeting of the Association was held on 13.07.2021 under the Chairmanship of the Bar President Mr. Y.N. Oza. There was a demand by large number of lawyers attending the meeting that since the pandemic situation has improved, the physical courts should open. A few lawyers did voice that the court should adopt hybrid system i.e. if someone doesn't want to come to court but wants to argue the case through virtual platform, she should be given such an option and the other party can opt to be physically present in the Court room. Since the majority was in favour of exclusive physical hearings, it was unanimously resolved that physical hearings shall commence. As per the request of lawyers, the High Court, on 06.08.2021, announced resumption of physical functioning with effect from 17.08.2021, subject to congenial situation prevailing at that time.

In the meantime, many High Courts like Mumbai, Delhi, Madhya Pradesh, Karnataka, Orissa, Madras, etc. had already announced their Standard Operating Procedures (SOPs), detailing both physical and virtual options. When the Gujrat High Court published draft SOPs for resumption of physical functioning of the High Court of Gujarat, some aged and lawyers with comorbidity realized that there was no option of hybrid platform. Some of them addressed a letter on 09.08.2021 to the Chief Justice of Gujarat High Court, requesting him that while the High Court may open physically, the virtual option (Hybrid) should also be made available. It was particularly for this reason that the draft SOPs had suggested that advocates, party in person, registered clerks above the age of 65 years and those suffering from co-morbidities may refrain from appearing in the courts. Such request was rejected and on 10.08.2021, the final SOP was notified by the High Court, which did not provide for any hybrid hearing. After notification of the SOP, a letter was addressed by 187 lawyers on 12.08.2021 to the Hon'ble Chief Justice of Gujarat again suggesting that the High Court, which had been so aggressive in marrying technology, should adopt hybrid hearings.

On 15.08.2021, 40 advocates including a few senior advocates, addressed a letter to the President of Gujarat High Court Advocates' Association for requisitioning an Extraordinary General Body meeting of the Advocates' Association. It was for discussing, considering and passing a resolution requesting the Chief Justice and other Judges of the High Court of Gujarat to provide for a virtual hearing option in addition to the physical hearing as provided by various other High Courts. But the High Court started functioning physically on 17.08.2021 without offering any hybrid platform.

The debate on hybrid or physical hearing also affected Bar Association meetings mode. It was indicated that the extraordinary general body meeting would be held on 23.08.2021, in the bar room of the Gujarat High Court premises at 01:55 pm. 127 lawyers, which included 6 senior advocates, addressed a letter dated 20.08.2021 to the President / Honorary Secretary requesting that the scheduled extraordinary general meeting of Gujarat High Court Advocates' Association be held virtually and not physically. A few lawyers also addressed a letter to the President that as per the SOP, it may not be permissible to have the general meeting of the Gujarat High Court Advocates' Association in the bar room of the High Court, a copy of the letter to the Deputy Registrar and Covid Coordinator, High Court of Gujarat. Finally, the extraordinary general body did not happen.

With the recent petition demanding that virtual hearings be made a fundamental right, it has become clear that the debate between hybrid and physical modes of functioning is not confined to the Gujarat High Court alone but has become a heated topic of discussion between the bar as well the bench of other High Courts and the Supreme Court.

LiveLaw spoke to Mr. Yatin Oza , the President of High Court Bar Association to know his stand on the controversy. He has sent the following statement.

"After the effect of the COVID pandemic having considerably gone down, almost to a NIL in the State of Gujarat, there cannot be any substitute to physical hearing.

Very few can attend the Karnataka High Court, NCLT, Bombay High Court and then Gujarat High Court simultaneously. Such people are not more than 50 in number. I took a sense of my Bar and 70% are in favour of physical opening.

Effectiveness of arguments in virtual hearings is reduced to 50%. This is what the general feeling is. To me personally, any of the three modes make no difference. Hybrid is bogus. So long as I am President of the Bar, with the confidence that the Bar has reposed in me to serve the interest of the Bar, all members of the bar have opined that my opinion should be the last as the President ( I have served for 19 years as President).

I have seen the suffering and I have seen the pain. People have had to mortgage their cars for financial aid. The Gujarat Bar Association is the only Bar Association which created a huge corpus not only to provide aid to advocates but also the support staff.

This hybrid & virtual only meant for blessed class. That is why it doesn't make any difference to me.

I congratulate the Chief Justice for opening the Court fully for physical hearing. In Bihar, Rajasthan, Haryana etc too, the cases have gone down. Why should the doors of Court remain shut?

Now barring Kerala and few North Eastern States, corona has reduced. There are advocates who earn only when they come to Court. Some come for bail, furlough, parole and so on.

It will be very difficult when one person argues in court and other argues from office. Important arguments will go unnoticed for one of the sides.

We have been doing this physical hearing for ages, it is unfortunate that Corona hit us. Corona figures in Gujarat have gone down.

The people anticipating a 3rd wave are the blessed class who can survive for 1-1 ½ months without coming to Court. That does not give them license to kick on the stomachs of 2000 advocates.

Regarding the requisition for calling the General Body meeting, Mr. Oza said

"Since establishment of High Court Bar Association every requisition is forwarded to President/Secretary, and invariably a meeting called . Unfortunately, in this 22 seniors directly went to the Chief Justice as if Bar does not exist. Before that I had convened 3 meetings to discuss the matter of physical hearings but they didn't attend the meetings. When I inquired from those 22 seniors, 14 said that they did not know that a representation as being sent to Chief Justice. Thereafter 146 advocates again directly made a representation to the Chief Justice, without realising that nobody in Gujarat High Court can beat me in the number game. This really irked me but if I would have reacted, I would have been in danger of a physical attack.

When Chief Justice told them that he will not entertain their requests till it comes through the Bar Association. Then 40 advocates requested me to call a meeting. I called a physical meeting in the Bar room on 23.08.2021 giving a week's notice. We have a huge bar room. But I got a letter one day before the meeting saying that physical meeting would violate COVID norms.

They also sent a letter to the COVID coordinator appointed by the HC who said that it would have to put before the Chief Justice, thus I was forced to postpone the meeting.

Now unless the Chief Justice conveys whether he would grant permission or not I cannot hold a meeting. We have huge lawns in the High Court where people can assemble following COVID norms. I will request the acting Chief Justice to grant permission to use the lawn in the event of getting a positive response from the acting Chief Justice.

I have no personal interest as I said, all three modes are convenient for me. But as President, I have to act in the interest of the Bar. Virtual and hybrid modes are only for blessed class".

LiveLaw spoke to Mr. Dhaval C. Dave, Senior Advocate, Gujarat High Court. He responded by saying

" Virtual Hearing, stepped in as felt necessity of COVID-19, deserves a permanent recognition. When introduced into the system, I had my reservation about its effectiveness. However, as time passed, it was realised that it was as effective as physical hearing. In my opinion, the best way to give recognition to virtual hearing on permanent basis is to opt for the hybrid mode. The number of matters which were disposed of during virtual hearing bears the testimony of its effectiveness. Every field has to evolve with technology and that includes the legal field too. Walking in hand with superior use of technology would only help in making our system embrace an efficient future. At least, for the time being, when it is not possible to rule out confidently the imminent threat of third wave of COVID, the hybrid mode seems to be the need of the hour. It is apt to quote Charles Darwin - " It is not the strongest of the species that survive, nor the most intelligent, but the one most responsive to change".