By Bindra Rana and Rima Majumdar
“The Time and the World do not stand still, for change is the law of life and those who look only to the past or the present are certain to miss the future.”– John F. Kennedy, 1963
The aforesaid testimonial is more valid and relevant post COVID-19, which pushed industries across the world to adopt to a remote working setup; including the legal fraternity. Recently, the Hon’ble Supreme Court of India took note of the shifting dynamics of the Indian Judicial System vis-à-vis the status of hybrid mode of hearings, in the case of Sarvesh Mathur v. The Registrar General of Punjab and Haryana High Court[1] .
Hybrid Hearings: A mandate
The present Writ Petition was filed in the Hon’ble Supreme Court of India by an individual, Mr. Sarvesh Mathur, who raised a concern about the discontinuation of virtual hearings by the Hon’ble Punjab and Haryana High Court.
It was averred by the Petitioner that, for the duration of the COVID-19 pandemic, virtual hearings were widely adopted as a safety measure, so that hearings could be conducted from anywhere within the country. The same proved to be a step forward in the right direction. However, the Petitioner brought to the Hon’ble Court’s notice that the Hon’ble Punjab and Haryana High Court had ceased to offer the facility of virtual hearings as the pandemic has now come to an end.
Considering the matter from a broader aspect instead of limiting it to the Hon’ble Punjab and Haryana High Court, vide its order dated September 15, 2023 the Apex Court had first issued notice to the Registrars General of all the High Courts, the National Company Law Appellate Tribunal, the National Consumer Disputes Redressal Commission, and the National Green Tribunal, and directed them to file an Affidavit detailing:
- How many video conferencing hearings have taken place in the last three months; and
- Whether any courts are declining to permit video conferencing hearings.
The Solicitor General was also requested to assist the court with data on hybrid hearings in the tribunals under various ministries of the Union Government on the next date of hearing.
Re: the High Courts
Pursuant to these directions, on October 06, 2023, the High Courts of Allahabad, Bombay, Calcutta, Chhattisgarh, Gujarat, Guwahati, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Madras, Meghalaya, Orissa, Patna, Punjab & Haryana, Rajasthan, Sikkim, Andhra Pradesh, Telangana, Uttarakhand, Jammu & Kashmir and Ladakh filed their Affidavits.
Vide these Affidavits and the submissions of the Standing Counsels for the High Courts, it was observed that, while some High Courts are providing hearings through the hybrid mode, other High Courts were not. The inconsistency in this regard was identified as under:
- The absence of a uniform Standard of Practice (SOP), which brings clarity to the manner in which access to the electronic mode of hearing can be obtained.
- Application for VC link has to be submitted in advance, sometimes even 3 days before the hearing.
- The existing SOPs are also arbitrary. Some High Courts have VC Rules wherein hybrid hearings are allowed for advocates/parties-in-person who are 65 years of age or above, thereby being an unfair disadvantage to young lawyers.
- Most High Courts do not provide Wi-Fi or internet connectivity to the members of the Bar and litigants within the precincts of the High Court.
- Links for video conferencing hearings are not provided in the cause-list.
- Many High Courts do not have online filing system, which complements hybrid hearings.
- Several High Court, despite after having VC facilities, do not provide hybrid hearings.
Re: the Tribunals
The Standing Counsel for NGT submitted that both the NGT Principal Bench and the Regional Benches provide hybrid hearings. The Additional Solicitor General appearing on behalf of the NCDRC also submitted that the tribunal is holding hybrid hearings.
The Standing Counsel for NCLAT submitted that, infrastructural requirements have to be upgraded to provide hybrid hearings, and funds for the same have been sought from the Union Government. Pursuant to giving directions to the Finance Ministry and the President of NCLAT to hold meetings to expedite the disbursement of funds, it was also directed that the NCLAT shall hold hybrid hearings within a period of 4 weeks from date of the present order.
However, prima facie a simple search on the internet for VC links at NCDRC showed that there are no links for hybrid hearings on the website.
Directions of the Hon’ble Court
In view of the aforesaid, the bench appointed two amicus curiae who were requested to collate all the information which has been provided in the Affidavits of the High Courts and Tribunals, in a tabulated chart so that further effective orders can be passed by the Court. The Amicus were also directed to contact the Registrar Generals of all the High Courts to obtain necessary information regarding the steps which have been taken by them to facilitate e-filing.
In the interim, the bench passed the following directions:
- No more denial of VC Links: Within two weeks of this order (October 06, 2023 order) being passed, no High Court shall deny access to hybrid mode of hearing to any member of the bar who is desirous of obtaining the same. For this, all State Governments were directed to provide necessary funds to the High Courts to put into place the facilities necessary for that purpose.
- Sufficient internet Facilities: All the High Courts were instructed to ensure that adequate internet facilities, including Wi-Fi with sufficient bandwidth, is available free of charge to all advocates and litigants appearing before them.
- Visibility in Cause Lists: VC links must be provided in the daily cause list of each Court, eliminating the need for a separate application for the same. Any age restriction or other arbitrary requirement for accessing VC Link is also to be removed.
- Standard Operating Procedure (SOP): All the High Courts are required to establish a SOP to allow litigants access to hybrid hearings. For this, Justice Rajiv Shakdher, Hon’ble Judge of the High Court of Delhi has been requested to prepare a model SOP, in conjunction with the Amicus.
The case is now tentatively listed on December 11, 2023.
Author’s note
These directions come as a welcome change in the hybrid hearing spectrum of Indian Courts. It is a known fact that, litigants as well as advocates may have cases which are pending all across the country. Providing hybrid modes of hearing to them makes the legal process easier, and therefore it was of utmost importance that such intervention be done by the Supreme Court.
A uniform SOP for conducting hybrid hearings along with the necessary technological facilities at the concerned Courts, including District Courts, will be highly beneficial for the legal profession as well as the litigants.
Aditya Vats Sharma, Associate at S.S. Rana has assisted in the research of this Article.
1. W.P. (Crl) 351/2023
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