Hybrid hearing by courts post-COVID is inconsistent with the open court mandate and dehors procedural laws and the Supreme Court Rules. In any event, it cannot be an alternative or an answer to the establishment of National Court of Appeal with Regional Benches, says V. VASANTHAKUMAR.
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ARTICLE 130 of the Indian Constitution says that the Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India(CJI) may, with the approval of the President, from time to time, appoint. It will be of interest to revisit this provision which has partly remained dormant all these years, as no CJI has so far thought it appropriate to facilitate the sitting of the Supreme Court outside Delhi.
In 2009, the Law Commission recommended four regional benches of the Supreme Court – Cassation Benches for the northern region/zone at Delhi, the southern region/zone at Chennai/Hyderabad, the eastern region/zone at Kolkata and the western region/zone at Mumbai – to deal with all appellate work arising out of the orders and judgments of the high courts of the particular region.
The Law Commission favoured a liberal interpretation of Article 130, so that no Constitutional amendment is required for the purpose of setting up of Cassation Benches in four regions and a Constitution Bench at Delhi. If it is found that Article 130 of the Constitution cannot be stretched to make it possible to implement the above recommendations, Parliament should enact suitable legislation or constitutional amendment for this purpose, the Law Commission recommended in its report.
In July 2021, Bar Councils in the south submitted a representation to the CJI N.V.Ramana as well as the Vice President, M.Venkaiah Naidu seeking that a Supreme Court bench be set up in south India. But successive CJIs have been lukewarm to the idea of regional benches on the ground that it would affect the prestige of the Supreme Court. One CJI, K.G.Balakrishnan, even remarked that it would lead to its disintegration.
But that was not the view of all his successor CJIs. CJI T.S.Thakur was certainly receptive to the proposal, and even tried to find a judicial solution to it when he referred my petition seeking setting up of a National Court of Appeal to a Constitution bench.
The debate on the setting up of regional benches of the Supreme Court seems to have been revived with many favouring virtual and hybrid courts as an alternative in the aftermath of COVID-19 pandemic.
The relative success of virtual hearings by the courts at all levels during the pandemic has made many to suggest that hybrid hearings (a combination of virtual as well as physical hearings) could well be an answer to the demand for establishing regional benches of the Supreme Court, as mandated by the Constitution. The Law Ministry’s view notwithstanding, this is far from the truth, as I will explain in this article.
Why open court is sine qua non of effective justice delivery
Under Article 145 (4) of the Constitution, no judgment shall be delivered by the Supreme Court save in open court, and no report shall be made under Article 143 save in accordance with an opinion also delivered in open court.
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Under Section 153 -B of the Code of Civil Procedure, the place of trial should be deemed to be open court. To reproduce Section 153-B in full:
The place in which any Civil Court is held for the purpose of trying any suit shall be deemed to be an open court, to which the public generally may have access so far as the same can conveniently contain them:
Provided that the presiding Judge may, if he thinks fit, Order at any stage of any inquiry into or trial of any particular case, that the public generally or any particular person, shall not have access to, or be or remain in, the room or building used by Court.
Under section 327 of the Code of Criminal Procedure, the court has to be open.
Section 327 says:
[(1)] The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court, to which the public generally may have access, so far as the same can conveniently contain them:
Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.
(2) Notwithstanding anything contained in sub section (1), the inquiry into and trial of rape or an offence under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB section 376E of the Indian Penal Code (45 of 1860) shall be conducted in camera:
Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.
(3) Where any proceedings are held under sub section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings except with the previous permission of the Court:
Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.
Section 119 of the Evidence Act is equally relevant. It says:
Witness unable to communicate verbally – A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open court, evidence so given shall be deemed to be oral evidence:
Relevant portions of the Supreme Court Rules, 2013 also may be relied upon.
Under Order XII [Judgments, Decrees and Orders]
1. The Court, after the case has been heard, shall pronounce judgment in open court either at once or on some future day, of which due notice shall be given to the parties or their advocates on record, and the decree or order shall be drawn up in accordance therewith.
2. A member of the Court may read a judgment prepared by another member of the Court.
3. Subject to the provisions contained in Order XLVII of these rules, a judgment pronounced by the Court or by a majority of the Court or by a dissenting Judge in open court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission.
Under Order XXXIV [Hearing of the suit], the following have been laid down.
l. Rules 1, 2, 3, 16, 17 and 18 of Order XVIII in the First Schedule to the Code with respect to the hearing of suits and examination of witnesses shall apply in suits instituted before the Court.
2. Witnesses in attendance shall be examined orally in open court and their evidence taken down in shorthand in the form of question and answer by such officers of the Court as may be appointed for the purpose.
A conjoint reading and harmonious construction of the Constitution of India, relevant provisions of the Statutes and Rules extracted hereinabove makes it abundantly clear that at all times the proceedings of the Court must be conducted only in open court.
Case against continued reliance on hybrid hearing
Virtual/ hybrid hearing is a by-product of the COVID-19 pandemic which served its purpose and made it possible and facilitated citizens to have access to justice during the pandemic. No doubt, technological innovations played a vital role in dispensation of justice.
Virtual mode of hearings was started exclusively to meet the extraordinary circumstances of the pandemic. A hybrid system would see only a few lawyers come to court. Hybrid option would have privileged lawyers argue from exotic spots around the world while judges sit in courtrooms. The court building cannot remain closed. Physical courts have to start functioning with regular courtroom arguments.
Hybrid hearing which is a combination of physical and virtual mode of court proceedings cannot be made as a permanent feature which would sound the death knell to physical courts.
The courts must be opened up to the public. If hybrid hearings become the norm, only a handful of lawyers would appear physically, apart from the Law Officers. Most of the lawyers are very comfortable in their offices and hybrid hearing would pave the way for hijacking the profession by elite lawyers having sophisticated offices in cities. Indeed, most lawyers have begun to leave or have been thinking of leaving the profession because of lack of infrastructure, which would satisfy the requirements of hybrid hearing.
Moreover, how will lawyers argue when one case is posted for “physical hearing” and another posted for “virtual hearing” at the same time? The concerned lawyer will have to physically appear inside the courtroom then come out to the corridor and argue therefrom on virtual mode via mobile.
This would lead to unrest among the lawyers and would not be conducive to conduct cases efficiently which would result in causing injustice to the clients. Further, hybrid mode of hearings would also cause inconvenience to the court. A lawyer appearing physically would be in a more advantageous position than his counterpart appearing virtually. The lawyer appearing virtually may face sudden disconnection of power supply, week internet, disturbance in hearing and so on.
Time for reform
There is a view among lawyers that the virtual/hybrid mode of court proceedings made the Supreme Court a truly National Court (lawyers can appear from any part of the country without travelling to New Delhi) and it obviates the necessity of establishing Regional Benches of the Supreme Court.
Most importantly, the true intent of constituting the Supreme Court is to interpret questions of law involving national importance and interpretation of the Constitution whereas the Supreme Court entertains all types of cases under Article 136 such as motor accident claim cases, labour cases, “lis” between individuals, criminal cases of petty offences. Therefore, it is high time for the Parliament and the Judiciary to introspect as to whether the Apex Court of the country is functioning as a true constitutional court.
It is pertinent to state that there is a long line of judgments of the Supreme Court lamenting about the declining stature of Apex Court including in my petition titled V. Vasanthakumar Vs H C Bhatia which has been referred to the Constitution Bench for authoritative pronouncement with regard to establishment of a National Court of Appeal with Regional Benches.
The necessity for establishment of a National Court of Appeal bifurcating the Supreme Court into two divisions, the Constitutional and Legal Divisions, is buttressed by various reports of the Law Commission of India, namely, 95th, 125th and 229th reports. These reports envisage one Constitutional Court and one Legal Division at Delhi with regional benches at metropolitan cities to absorb all appellate works emanating from respective High Courts within their jurisdiction. In that event, the Supreme Court at New Delhi would be left with original and advisory jurisdiction, besides interpretation of questions of law having national importance and the Constitution.
Time has come to take bold steps to carry out reforms in the judiciary. Since the eclipse of COVID-19 has receded, the Courts have to return to the conventional mode of physical courts, which would be truly open courts, by giving a complete go-bye to the virtual and hybrid hearings, while continuing with a few exceptions, which were allowed earlier by the courts for certain valid reasons due to force majeure and in the interest of privacy of certain category of litigants.
(The author is an advocate practising at the Madras High Court and at the Supreme Court of India)
