Virtual court can’t be the norm, says Supreme Court; explains its reservations
NEW DELHI: Virtual courts cannot become the norm as this would envisage that the building in which we sit should be closed, the Supreme Court observed on Friday, expressing its strong reservations on a petition that asked for continuation of virtual court hearings as a matter of fundamental right.
“It is one thing to demand live telecast of court proceedings, and quite another to say that when Covid is receding, people need not come to courts and instead continue with virtual hearing,” the bench of justices L Nageswara Rao and BR Gavai said.
The bench, however, went ahead to issue notice to the Union government, pointing out that the court will take up the petition after four weeks along with a similar plea filed earlier by a group of lawyers.
The court on Friday was hearing a petition by National Federation of Societies for Fast Justice, an advocacy NGO that campaigns for judicial reforms, along with former Central Information Commissioner (CIC) Shailesh Gandhi and former Mumbai Police Commissioner Julio Ribeiro.
The petition, drafted by lawyer Siddharth R Gupta, also wants the top court to bar high courts from discontinuing virtual court hearings without the Supreme Court’s approval, pointing out that high courts of Uttarakhand and Gujarat have already issued orders to this effect on August 10 and 16, respectively.
“For more than 70 years, we all understood courts to function physically. It was in view of Covid-19 pandemic that we thought that courts should continue to function and developed this new system of virtual hearing of cases. But virtual courts cannot become a norm as courts have to function physically when normalcy gets restored. The result of seeking virtual hearing as a norm is to envisage that the building where we sit should be closed down.”
Senior lawyer Manoj Swarup, appearing for the petitioners, said virtual courts allowed litigants to address the courts and get justice at a very cheap cost. “They also have the advantage of engaging a lawyer of their choice and all this promotes access to justice which no system of governance can ignore,” Swarup said, urging the bench to allow the option of virtual courts to continue.
The bench wondered what would happen to the provisions in Indian Penal Code and Code of Criminal Procedure (CrPC) which talk about open courts and open justice, referring to the 18th century English philosopher Jeremy Bentham who advocated for courts to be open for the public to enhance public confidence in the justice delivery system.
In contrast to in-person hearings, virtual hearings can be accessed by a limited number of people and often, due to technical glitches and connectivity issues, the hearings get interrupted, sometimes making it difficult for judges to appreciate arguments advanced by the litigants or lawyers.
“When you make submissions looking into our eyes, it is more effective than we are looking into the screen while you are addressing,” the bench said.
The top court also countered a suggestion that physical court hearings put people living in remote areas at a disadvantage since they have to travel all the way to Delhi for hearings.
“Nobody in remote areas is being denied access to justice. There is only a small percentage of cases that reach the Supreme Court from trial courts. Litigants already have the facility to approach those courts. If we allow virtual courts that will be sounding the death knell for physical functioning of courts,” the bench remarked, and asked Swarup if there was any study to back up its argument.
The petition referred to findings of the Supreme Court E-Committee which propagated virtual courts as the most accessible, affordable, transparent, and cheap mode of justice available to litigants of the country, especially those coming from the marginalized sections.
The bench referred to the standard operating procedure (SOP) released by the Supreme Court on Thursday, by which virtual hearing of cases would be discontinued on two days in a week beginning October 20. “So, you want us to set aside that SOP also,” the bench told Swarup, stating that it is a huge challenge the top court is facing to resume physical functioning.
“You ponder over how physical courts have to resume after normalcy returns. We started a hybrid hearing in the Supreme Court, but lawyers are not coming to court. What norms can be laid down; we can think over it at the next date of hearing.”
At one point, the bench questioned whether this petition was driven by the interest of lawyers. “You want this happy option to remain so that lawyers can argue from Mussoorie, Shimla or London,” the bench remarked, to which Swarup responded saying this petition is by citizens who genuinely feel that keeping the option of videoconferencing open is in the interest of access to justice.