March 25, 2021

By Lucy Rana and Nihit Nagpal

In addition to the various challenges already faced by the Indian Judicial and Legal System, the pandemic has added another challenge of conducting court hearings. During lockdown, the Courts across the country embraced a novel way to conduct hearings virtually. As things are coming back to normal with resumption of physical hearings, and even though appearing in Courts poses its own challenges, primarily owing to the crowding that goes hand-in-hand, there is dissection of group of lawyers having separate opinions and reservations on resumption of physical hearings.

The Supreme Court had recently rolled out the Standard Operating Procedures (SOPs) for a Hybrid System of hearing before itself. However, these Standard Operating Procedures have not been received well by the Supreme Court Bar Association (SCBA).

In the recent order of the Hon’ble Supreme Court in Supreme Court Bar Association & Anr. vs Supreme Court of India[1] has given considerable thought and advise on a series of connecting Special Leave Petitions that were heard on March 16, 2021.

Virtual hearings on Mondays and Fridays and Physical hearings on Tuesdays, Wednesdays and Thursdays

Under the latest Standard Operating Procedures of the Hon’ble Supreme Court, it has been laid down that the Court shall hear matters virtually on Mondays and Fridays, whereas there shall be physical hearing on Tuesdays, Wednesdays, and Thursdays. This raised a major concern for the Supreme Court Bar Association with special mention of the fact that the Hon’ble Judges have their separate corridors and passage, with appropriate screens between the Judges and the Lawyers, for protection. However, there is no such added protection for lawyers who are open to the crowds that the physical hearings shall bring in with it.

Though the Hon’ble Supreme Court has not considered whether the physical hearings with parallel running of virtual hearings should be made a mode of hearing for a long run, calling it a separate remit from the current situation, the Hon’ble Court has definitely made sincere efforts to iron out the differences cropping up in the Supreme Court Bar Association vis-à-vis the Standard Operating Procedures. The Learned Secretary General has been called out to request the Judges Committee to fix an early meeting with the Supreme Court Bar Association to chalk out a plan regarding the same. The matter is now adjourned for March 23rd, 2021[2] in this regard.

The Hon’ble Supreme Court has given certain observations on the decision of the Delhi High Court dated March 9th, 2021 (calling it an impugned order keeping in view its nature) to resume physical hearings completely in the Hon’ble Delhi High Court and the lower courts.

Vide the impugned order, the Hon’ble Delhi High Court has specified that parties may opt for virtual hearings before the Hon’ble Court which the Hon’ble Court may decide on merits. However, the Court shall allow the same only in “exceptional cases” and hence, the Court would have to apply its mind to allow the same. Also, as per the order, the lawyers must disclose their location from where they are hearing the matter. It is a known fact that there are persisting issues of connectivity breakage and keeping the same in view, deciding on lawyers’ requests for virtual hearings will be an added responsibility for the Hon’ble Courts already loaded with the pendency of cases.

On the above decision of the Hon’ble Delhi High Court, the Hon’ble Supreme Court has observed that equal opportunity should be given to lawyers who want to make submissions via physical hearings or virtual hearings.

The Hon’ble Delhi High Court, in the impugned order, has observed in Para 5 of the judgement that requisite infrastructure should be made available in all Courts so that request for virtual hearings may be entertained on merits. In view of the same, the Hon’ble Supreme Court have expressed their expectations towards judges to show accommodation wherever a lawyer requests a virtual hearing provided he connects it and that is not used as an excuse for adjournment. The place from where they connect is immaterial. It would be appropriate for the Hon’ble High Court to facilitate virtual hearing wherever so sought.

Keeping the above in view, in a welcome office order dated March 19, 2021[3], the Hon’ble Delhi High Court has directed the High Court itself as well as the Delhi District Courts to conduct hybrid hearings wherever possible and feasible, to avoid unnecessary crowding in the Courts. Since the infrastructure for facilitating hybrid hearing is not completely in place in the District Courts, the Hon’ble Delhi High Court has directed the following steps to be incorporated:

  1. Judicial Officers may not insist physical presence of parties, unless unavoidable;
  2. In case advocates / parties / witnesses seek adjournments on account of old age, health condition, taking care of a family member, etc, the Courts may suitably accommodate such requests;
  3. All Principal District and Sessions Judges and Principal Judges, Family Courts have also been directed to take appropriate measures to:
  4. Regulate entry of litigants and stakeholders in the Court complex;
  5. Ensure sufficient sitting place for them;
  6. Ensure regular deep cleaning and sanitization of Court complexes and Lawyers’ Chambers Blocks;
  7. Ensure strict adherence by all to social distancing norms and Covid-19 guidelines and regulations.

The Hon’ble Delhi High Court has further issued advisories to the Advocates to further advise their Clients to refrain from being physically present in the Court premises. The District Bar Associations have also been duly informed that suitable advisories may be issued from time to time to avoid crowding in Lawyers’ Chamber Blocks.

With the second wave of Covid-19 hitting the nation, the pandemic does not seem to end any time soon. Keeping this in view, a hybrid system of Court hearings only seems the appropriate way to adjudicate the pending hearings and with this order, the Hon’ble Supreme Court has also endorsed going the hybrid, the new normal way.

[1] W.P. (C) No. 329/2021 and W.P. (C) No. 310/2021 ; SLP(C) No.4516/2021 & Diary No.7210/2021

[2] W.P. (C) No. 329/2021 and W.P. (C) No. 310/2021

[3] https://delhihighcourt.nic.in/writereaddata/Upload/PublicNotices/PublicNotice_YZ1V40N8F2T.PDF


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