Hard to justify not having physical courts when schools, malls are open: SC

The bench went on to post two matters on September 23 and 30 asking lawyers appearing in the case to appear physically. “Most of the regular matters listed before us are lengthy matters that require physical arguments. We are also missing seeing lawyers face to face. We will be there to welcome you openly,” it said

The Supreme Court on Thursday said that the absence of having physical courts is hard to justify at a time when schools, malls and metro rail have opened.

Supreme Court. (HT archive)

Not finding senior lawyers coming to the Supreme Court despite standard operating procedure (SOP) put in place to permit hybrid hearing (physical and virtual hearing) of cases on Tuesdays, Wednesdays and Thursday, two separate benches of the Supreme Court expressed their angst with one saying in a lighter vein that “mandamus (order) needs to be issued to enforce physical presence of lawyers” while another bench giving priority for listing of case for those lawyers who agreed to appear physically.

The bench of justices Vineet Saran and Aniruddha Bose said, “Schools are open, malls are open, and the Metro rail is open. How do you justify that only the Supreme Court is not open. How do you justify that you will go to the market but not come to the Court. We (judges) are coming every day to court.”

The bench went on to post two matters on September 23 and 30 asking lawyers appearing in the case to appear physically. “Most of the regular matters listed before us are lengthy matters that require physical arguments. We are also missing seeing lawyers face to face. We will be there to welcome you openly. Even the lighter moments during arguments are missing during virtual hearing,” the bench remarked.

Earlier in the day, another bench of the Supreme Court felt that lawyers should begin to come to court. A bench of justices S Abdul Nazeer and Krishna Murari said, “It seems we have to issue a writ of mandamus to ensure lawyers appear in court.”

The remark evoked frank responses from three senior lawyers – Dushyant Dave, Ranjit Kumar and C Aryama Sundaram, who had their own reasons to avoid coming to court. Dave, a former president of the Supreme Court Bar Association was candid in stating that the SOP issued by Supreme Court for beginning hybrid hearing from September 1 was passed without consulting lawyers.

“The registry of the Supreme Court has issued the SOP ex-parte (without hearing the other side). They should have consulted the Bar. We too are anxious to attend the court,” Dave said.

Senior advocate Ranjit Kumar was forthright to expose the lacunae in the SOP that required lawyers to obtain a Special Entry pass for each case, wait in the library and enter courtroom just before the case hearing after following the safety processes required due to Covid-19. Physical hearing was restricted to only 20 persons at a given time.

“We are missing the courts as sitting on the chair all day long is not a good feeling. But if I have three matters in the Supreme Court, I cannot go without taking three separate passes and the accompanying permissions,” Kumar said. He added that not all courts are open to physical hearing. “Some courts have specifically mentioned that they don’t want physical hearing,” Kumar told the court.

Echoing the concerns of the Bar, Supreme Court Bar Association (SCBA) President and senior advocate Vikas Singh said, “I had predicted that this would happen as the SOP creates many restrictions on movement of lawyers within the high security zone of the Supreme Court.”

The SCBA – having 13,000 lawyers as its members –wrote a letter to the Chief Justice of India (CJI) NV Ramana on August 30 stating, “The SOP is a non-starter as our members would not like to take the option for physical hearing with so many conditions attached.” The SCBA has been in favour of a wider opening up in the court citing that the situation is conducive with Covid positivity rate dropping to as low as 0.04%.

SCBA president said they are yet to hear from the CJI on its letter. “It is absurd how the Supreme Court has gone about hybrid hearing without discussing with us. Had this SOP been shown to us before, we would have outrightly rejected it. They have not even responded to our letter,” Singh said.

There are lawyers who have preferred to appear through virtual court proceedings for safety concerns and in the interest of aged and sick parents at home.

Senior advocate C Aryama Sundaram appearing before the bench headed by justice Nazeer said, “We all are anxious to see you physically, but it is not the courts but the corridors, the entry/exit gates that we fear.” The lawyer was referring to the fact that while courtrooms are to be sanitised under the SOP, there is no corresponding provision for other areas used by lawyers. Senior lawyer Meenakshi Arora informed the court that she preferred virtual hearing as she had aged parents at home.

The SCBA had begun vaccination drive for its members in March and by now, most lawyers have received both doses of the vaccine. The judges and staff of the Supreme Court have also been vaccinated.