The Supreme Court today refused to interfere with the decision of the Delhi High Court regarding resumption of physical hearings with the facility of virtual hearing available in exceptional circumstances.
While doing so, the Bench of Justices Sanjay Kishan Kaul and Subhash Reddy observed that it “expects courts to take into account request for virtual hearing unless being used as a reason for adjournment.”
The Court made it clear that the manner of opening of courts or starting virtual courts is something that will have to be handled at the High Court level, and that it would not issue directions based on the perceptions of different lawyers.
The Delhi High Court had earlier notified that from March 15 onwards, virtual hearings would be the exception and not the norm, ordering that whenever a request for a hybrid/video conferencing hearing is made, the party concerned should not only state the exceptional circumstance, but also indicate his/her geographic location.
The apex court today heard petitions challenging this decision as being arbitrary. The Court noted that issues raised during the hearing will have to be fine-tuned by the administrative side of the Delhi High Court.
Some of the issues pointed out before the Court were crowding of courts and requests for virtual access to litigants, among others.
“All these things require fine tuning on the administrative side. However, in the wisdom of the administration, hybrid hearing was envisaged. The only problem appears from the word ‘exceptional circumstances’,” the Court said.
The Court further expressed that it has “no doubt that judges will make accommodations to make hybrid hearings successful till physical hearing starts”.
Having appeared before the Delhi High Court in the last two days, Advocate Nancy Roy submitted,
“There is no facility for physical distancing in Delhi High Court today even though half list is taken up…Fully air-conditioned with no ventilation. It’s dangerous.”
However, Supreme Court Bar Association (SCBA) President and Senior Advocate Vikas Singh stated that now the choice was between “death by starvation” and “death by COVID.”
Senior Advocate Mukul Rohatgi strongly argued against the Delhi High Court order on the aspect of insisting on geographical location of counsel.
“These kinds of arguments that you are in Delhi or you are somewhere else…What kind of attitude is this? Today we don’t have a second shot. After 45 days, we have a second shot then 15 days. Summer vacations are coming. We can have physical hearing then,” said Rohatgi.
The Court clarified that allowing or declining virtual hearing would be the discretion of the judge(s) concerned and no personal hearing in this regard would be entertained.
“As far as what would constitute an exceptional circumstance, would have to be left to discretion of the judge(s) before whom request is made. However, to put to rest any uncertainty, it would be appropriate that such a request is made at least one working day in advance...”
The Court nonetheless added that insofar as young mothers are concerned, their request for virtual hearing for the reason that they cannot leave their homes would be “examined compassionately” by the concerned judge(s).
The order was passed in a petition seeking to defer complete physical hearings in the High Court and subordinate courts at least till the first phase of the vaccination process of all lawyers is completed.
The petition will be heard again next Tuesday along with a plea by SCBA challenging the hybrid mode adopted by Supreme Court to hear cases.
On March 9, the Delhi High Court Bench of Justices Vipin Sanghi and Rekha Palli said,
“While making the requests, parties should clearly set out the exceptional circumstance/case and indicate their geographic location from where they would be joining (the video conferencing hearing). Mere absence of the counsel or party within the NCT of Delhi may not be a sufficient ground for making a request for VC hearing.”
The High Court had clarified that allowing or declining virtual hearing would be the discretion of the judge(s) concerned and no personal hearing in this regard would be entertained.