Hybrid hearing Vs Physical hearing: A brief history of what has transpired in the Supreme Court thus far
A Supreme Court bench consisting of Justices L. Nageshwawar Rao and A.S. Oka yesterday agreed to hear a batch of petitions seeking continuance hybrid hearings at length. The petitioners in these matters seek the indulgence of the court on the ground that hybrid and virtual hearings enable access to justice for people living across the country.
Sidharth Luthra, Senior Advocate, sought for the urgent hearing of the matter by informing the court that a litigant from anywhere in the country can keep track of his case and see how the courts are functioning.
The bench retorted to this saying that there was not problem with access to justice for the last 70 years, however there is a problem with physical hearing now. The bench further observed that they had earlier tried hybrid hearings, however people did not turn up to courts as they had expected and that normalcy had to return and courts have to function physically.
However, since Luthra mentioned that the matter is not being listed by the registry, the court decided to hear it at length in December.
While the court has remained consistent in its stand, there have been litigation and mentioning by a section of seniors who feel it is necessary to retain hybrid mode of hearing.
Here is a brief history of such litigation and mentioning
Plea by All India Association of Jurists (7th September 2021) :
Uttarakhand High Court on 16th August issued a notification to revert to full physical functioning from Aug 24 to the exclusion of virtual mode of hearing cases completely. A plea was filed challenging this notification by "All India Association of Jurists", and legal journalist Sparsh Upadhyay.
Sr. Adv. Sidharth Luthra, appearing for the petitioners informed the court that the petitioner organization represents more than 5000 lawyers, to this the Court observed how BCI Chairman had already stated that virtual hearings were the reason why younger lawyers were suffering as their livelihood had been affected because of it.
Sr. Adv. Vikas Singh, the President of the Supreme Court Bar Association made it clear that they are against the petition and want only full physical hearing. He said that he will file an affidavit in that regard.
A Supreme Court bench headed by Justice Nageshwar Rao issued notice to the Central Government, four High Courts, the Bar Council of India (BCI) and Supreme Court Bar Association (SCBA). The matter is yet to be heard at length.
Supreme Court issues modified SOP (7th October 2021) :
The Supreme Court on 07.10.2021 issued a modified Standard Operating Procedure (SOP) according to which all matters listed on Wednesday and Thursday would be heard only in physical presence of the counsels and parties in court room. The SOP further states that in a matter listed for physical hearing the AoR (or his nominee), one arguing counsel and one junior counsel per party will be allowed.
Plea by National Federation of Societies for Fast Justice (8th October 2021) :
National Federation of Societies for Fast Justice filed a PIL which sought virtual hearing as a fundamental right. Manoj Swarup, Senior Advocate, who appeared for the petitioners argued that hybrid hearings were being sought by the citizens such as Julio Robello and RTI activist Shailesh Gandhi and not by the lawyers. He further argued that hybrid mode be considered a part of right to access to justice by citizens.
The bench remarked that virtual hearing cannot be a norm as it was the off shoot of the extraordinary crisis created by COVID-19 pandemic. The bench further remarked that while public have the right to witness court hearing online, it cannot exactly be said that they have the right to virtual hearings.
Justice Nageshwar Rao remarked that the petitioners should be told about the principles of open courts and open justice. He further said that they want the courts to be open to public again. He further informed the petitioners that despite making physical hearing optional, the lawyers haven’t turned up to court. He said “Do you want the building in which we are sitting be closed because of virtual hearing?”
The Bench issued notice returnable in 4 weeks along with suggestions on how to lay down norms for virtual hearings in exceptional cases. This case was tagged with an earlier petition filed by All India Association of Jurists.
Kapil Sibal, Senior Advocate, requests for hybrid hearing for challenge to certain provisions of PMLA (8th October 2021) :
A bench of Justice Khanwilkar has permitted hybrid mode of hearing in a batch of petitions challenging provision of Prevention of Money Laundering Act at the request of Senior Advocate Kapil Sibal, who is appearing for one of the petitioner(s).
This request was made in the light of Supreme Court issuing a modified Standard Operating Procedure (SOP) which mandates that all the matters listed on Wednesday and Thursday as non-miscellaneous days will be heard only through physical hearing mode.
Sibal told the bench that since it is a voluminous matter, he will need the assistance of more than the stipulated number of counsel. The bench accepted the request citing the size of this matter and voluminous pleadings involved in the matter.
Seniors mention before CJI requesting court to reconsider notification mandating physical hearing on Wednesdays and Thursdays (20th October 2021)
Senior Advocates Kapil Sibal, AM Singhvi, Mukul Rohatgi and SG Tushar Mehta today urged to Chief Justice of India to reconsider the amended Standard Operating Procedure (SOP) mandating physical hearings on Wednesdays and Thursdays.
Sibal appraised the court that many matters he has been engaged in are voluminous and the it is humanly impossible for a limited number of counsels as contemplated in the SOP to assist him. He mentioned that Justice Khanwilkar had permitted a hybrid mode of hearing for the constitutional challenge to the powers of ED in PMLA.
The Chief Justice of India N.V.Ramana mentioned to the seniors that this decision was taken by the judges of the court under immense pressure from bar associations. He further said that the decision was taken after a lot of deliberation, it was decide that the court will hold physical hearings for just for 2 days in a week. He informed the seniors that this was done pursuant to a 7 member committee formed by the former Chief Justice Bobde and the lawyers will have to express their apprehensions on physical hearing before the committee. Sibal agreed to this and informed the court that the lawyers would appear before the committee and appraise them of their grievance.
Mr.Vikas Singh, Senior Advocate, intervened and informed the court that he was opposing this. He contended that while the senior advocates could go on a 6 month long vacation without having to appear in a single matter, the juniors are starving.
However this representation was not entertained by the court.