Supreme Court Issues Sop For Hybrid Hearings Effective March 15

KEY TAKEAWAYS

• The Supreme Court, which is hearing cases through video-conferencing since March last year due to the COVID-19 pandemic, will commence hybrid physical hearing from 15 March 2021.
• The bench will decide if a case will be listed for hybrid hearing, depending on the number of parties involved in a matter and the capacity of the courtroom.
• However, the Supreme Court Bar Association (SCBA) moved the Apex Court seeking the quashing of the Standard Operating Procedure (SOP), saying it has been framed without consulting the Bar, an equal stakeholder in justice delivery system.

INTRODUCTION

After the demands for physical hearings from several bar bodies and lawyers the Apex court issued the SOP for the hybrid physical hearing that will commence from March 15 where the parties can choose the mode of appearance for attending the listed matters.

The counsel for any given case has to login on- https://registry.sci.gov.in/court/hearings/hybrid_physical_hearing/ where they have to register themselves through E-nomination for hybrid physical hearing.

However, according to the resolution issued by SCBA’s Secretary, Ardhendumauli Kumar Prasad stated that, "The executive committee has unanimously resolved and decided to not accept the SOPs and directions issued by the top court as it was prepared without taking into confidence the Bar, despite the assurance given to them by Chief Justice of India (CJI) Sharad A Bobde in the meeting held on 1 March."

FURTHER DETAILS

According to the SOP, the Advocate On Record (AOR) has the option to chose the mode of hearing matters listed before the Supreme Court. AOR has to register first on the E-nomination portal of counsels/clerks for Hybrid Hearing.

The SOP issued said, “On an experimental basis, and as a pilot scheme, the final hearings/regular matters listed on Tuesdays, Wednesdays and Thursdays may be heard in the hybrid mode, as may be decided by the bench, considering the number of parties in a matter as well as the limited capacity of the courtrooms; all other matters, including those listed on Mondays and Fridays, shall continue to be heard through video/tele-conferencing mode".

AOR’s may submit their preferences for appearing before the court either physically or through video or tele-conferencing mode within 24 hours or by 1pm the next day after the publication of the weekly list of final hearings or regular matters.

The SOP also stated that, “It may be noted that wearing of masks, frequent use of hand sanitizer and maintaining physical-distancing norms are mandatory for all entrants into the Supreme Court premises, including into the courtrooms".

According to the SOP, a Special Hearing Pass has to be generated through the SC website for each particular item on given day. The entry through proximity cards will be suspended for the time being till further orders.

The SCBA' plea, settled by its President, said the bar body has around 13,000 members and has been constrained to file the plea as "the SOP has been issued by the Registry without consultation with the Bar even though Bar is an equal stakeholder in the dispensation of the Justice Delivery System and the suggestions given by the Bar ought to have been taken into consideration.

BACKGROUND

On Friday (March 12) the Delhi High Court recapitulated that the hybrid hearing mode will only be an exception and not the norm. A host of counsels on Friday including the senior counsels in the matters appeared before the bench of Justice Vipin Sanghi and Justice Rekha Palli whilst some of them contended that the hybrid form of hearing should be undertaken in appropriate cases.

However, the counsels appearing for Delhi High Court Bar Association, Bar Council of Delhi and the Coordination Committee of All-District Bar Association supported the decision of physical hearing from March 15. The court said, “A beginning has to be made and the fear that has gripped the people – including the Advocates, has to be shaken off."

The court also took into the account the report filed by the Registrar General of the Court, which stated that the hybrid system of hearing in the courts subordinate to the Delhi High Court is not feasible. However, the High Court directed that adequate infrastructure of hybrid hearings be installed in all the 25 courtrooms before March 15 with imparting requisite training to the court staff so as to enable them to be able to operate the hybrid system.
The SOP said that the types of attendees that the types of attendees nominated by the AOR can be- 1) Senior Counsel 2) Advocate-on-record (other than the user) 3) Appearing Counsel (any other advocate otherwise eligible) 4) Registered Clerk of the concerned AOR or nominee. The registered clerk are not allowed to enter inside the court room.

However, a bench of justices Sanjay Kishan Kaul and Hemant Gupta headed by SCBA president, Vikas Singh did not agree with the SC’s SOPs on hybrid physical hearing, saying that the Bar is an "equal stakeholder" in the justice delivery system and the decision has been taken unilaterally and thrusted upon it.

The plea filed by SCBA and its Treasurer Meenesh Kumar Dubey has sought quashing of the SOP and a direction to the Apex Court’s Registry not to issue “any circular without consulting the Bar”.

The plea has said that paperless e-filing of judicial records and hearing through video-conferencing would save lives as papers have been found to be carriers of the Covid-19 virus.

“In the SOP …, there is no provision for hybrid hearing for the matters listed on Monday and Friday, i.e. Miscellaneous days when primarily fresh matters are listed. That for around last one year this court is working through virtual hearing and there is no provision for oral mentioning in Standard Operating Procedure dated 05.03.2021…,” the plea said.

The plea also stated that last one year has affected the young members of the Bar and there were lot of problems regarding the muting and unmuting of lawyers in virtual hearings so it is high time that with safety precautions of temperature check at entry points, wearing of masks and maintaining social distancing the normalcy must be restored in the courts as well.

“The right to mute at will during virtual hearing mitigates against the very concept of open hearing which is the convention/norm and the constitutional requirement under article 145 of the Constitution of India. Also open hearing as understood prior to the pandemic is the only hearing permissible in law. Also there are a lot of problems in the software being used. Even what software to use should not be implemented without consulting the Petitioner Association,” the plea said.

DIRECTIONS BY THE COURT

While making the request for video conferencing hearing the opposite counsel or parties should also be put into notice and request would be allowed to be made at least one working day in advance, the decision to grant this request would be on the discretion of the Judges.

If there will be poor internet connectivity then the Court would not be obliged to adjourn the proceedings. Also the parties should make sure that the records are circulated well in advance so that they are brought on record/documents/copies of decisions and also served on the opposite parties.

Absence from the geographical limits of Government of National Capital Territory of Delhi (GNCTD) alone, will not be considered as a sufficient ground for making a request for video conferencing hearing. The court also observed that the infrastructure to hybrid form of hearing cannot be arranged in case of the District Courts for the time being.

The Court set aside the direction issued by the Single Judge on 26th February 2021, to the effect that no adverse order shall be passed by subordinate courts in Delhi if the counsel does not appear for physical hearing.

Multiple sets of one chair and table will be placed inside the courtrooms in the areas demarcated for Ld. Advocates. The entry of parties in a matter will be permitted not earlier than 10 minutes before the start of the hearing of that matter. On completion of hearing of the respective cases, the Ld. Advocates, Registered Clerks etc. will move out of the High Security Zone through the movement corridors and exit from the designated gates.

The court also said that in order to facilitate video conferencing for the counsels, a VC Facilitation Centre is located in Block ‘C’, Ground Floor, Additional Building Complex, Supreme Court of India which can be accessed through Gate No. 1 of that Complex.

CONCLUSION

Multiple representations had been made to the Chief Justice of India till now for the resumption of physical court hearings. Previously, the Executive Committee of Supreme Court Bar Association and Supreme Court Advocates On Record Association had submitted a joint representation seeking resumption of physical hearings after their joint meeting. The Supreme Court Advocates On Record Association had also separately written to the Chief Justice of India seeking resumption of physical hearings with the existing virtual Courts in a hybrid manner. However, the SCBA decided to not accept the said SOP as it was prepared without consulting the Bar despite the assurance given to them by CJI Bobde in the meeting held on March 1 2021.