VIRTUAL HEARING

[Mr. M. GOVINDARAJAN]

Virtual hearing

Virtual hearings are court hearings conducted by audio-visual means, where cases are progressed without the need for participants to attend the Court in person.

Covid - 19

The Supreme Court had resorted to virtual hearings on 23.03.2020, a day before the lockdown was imposed by the government. On 06.11.2020, the Supreme Court issued orders under Article 142 to allow all courts to switch to the virtual mode, giving legal sanctity to digital courts.

The Supreme Court, after taking suo motu cognizance of a letter written by former Supreme Court Bar Association president and senior lawyer Vikas Singh, had on 06.04.2020 issued a slew of directions to use technology for conducting hearings in courts across the country to avoid congregation due to the ‘extraordinary’ outbreak of COVID-19.

In exercise of the powers conferred on the Supreme Court of India by Article 142 of the Constitution of India to make such orders as are necessary for doing complete justice, directed that:

• All measures that have been and shall be taken by this Court and by the High Courts, to reduce the need for the physical presence of all stakeholders within court premises and to secure the functioning of courts in consonance with social distancing guidelines and best public health practices shall be deemed to be lawful.
• The Supreme Court of India and all High Courts are authorized to adopt measures required to ensure the robust functioning of the judicial system through the use of video conferencing technologies.
• Consistent with the peculiarities of the judicial system in every state and the dynamically developing public health situation, every High Court is authorized to determine the modalities which are suitable to the temporary transition to the use of video conferencing technologies.
• The concerned courts shall maintain a helpline to ensure that any complaint in regard to the quality or audibility of feed shall be communicated during the proceeding or immediately after its conclusion failing which no grievance in regard to it shall be entertained thereafter.
• The District Courts in each State shall adopt the mode of Video Conferencing prescribed by the concerned High Court.
• The Court shall duly notify and make available the facilities for video conferencing for such litigants who do not have the means or access to video conferencing facilities. If necessary, in appropriate cases courts may appoint amicus-curiae and make video conferencing facilities available to such an advocate.
• Until appropriate rules are framed by the High Courts, video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage. In no case shall evidence be recorded without the mutual consent of both the parties by video conferencing. If it is necessary to record evidence in a Court room the presiding officer shall ensure that appropriate distance is maintained between any two individuals in the Court.
• The presiding officer shall have the power to restrict entry of persons into the court room or the points from which the arguments are addressed by the advocates. No presiding officer shall prevent the entry of a party to the case unless such party is suffering from any infectious illness. However, where the number of litigants are many the presiding officer shall have the power to restrict the numbers. The presiding officer shall in his discretion adjourn the proceedings where it is not possible to restrict the number.

The Supreme Court also issued standard operating procedure for Advocate, party in person for mentioning, e-filing and video conference hearing. 

The Supreme Court said the system of video-conferencing in providing access to justice to citizens during the ongoing pandemic situation has been ‘extremely successful’ and granted liberty to the High Courts to frame rules for such virtual hearings for themselves and the subordinate courts.

Professional dress

The legal profession traditionally follows certain rules of decorum. Judges wear black robes and attorneys, clients, witnesses, and jurors are encouraged to dress suitably and modestly.   It is equally important to pay attention during the online hearings.  Working on the computer, working out, walking out of the room because something was left on the stove, or even sleeping in bed are few examples of inappropriate behavior during online proceedings.  Vide Circular dated 13.05.2020 the Supreme Court directed that the advocates may wear ‘plain white-shirt/white-salwar-kameez/ white saree, with a plain white neck band’ during the hearings before the Supreme Court of India through Virtual Court System till medical exigencies exist or until further orders.  Vide circular dated 16.05.2020 the Supreme Court exempted the Advocates from wearing heavy upper body clothings like coat, chapkan, achkan, sherwani, gown and jacket (and such other heavy items which are not washable daily/frequently) and they may wear the dress as prescribed under the Bar Council of India Rules with plain white band, ensuring proper decorum before the Virtual Courts.

Advocate in Baniyan

A lawyer appeared in a virtual hearing in the Supreme Court while lying on bed and donning a T-shirt, drawing displeasure of the judge who observed that ‘minimum court etiquette’ should be followed given the public nature of hearings.  It observed that lawyers appearing in matters via video- conferencing should be ‘presentable’ and avoid showing images which are not appropriate.

The Supreme Court is of the view that when counsel appears in court video hearings, they should be presentable and avoid showing images, which are not appropriate and can only be tolerable in the privacy of their homes," the court noted in its 15.06.2020 order.

The Supreme Court is passing through trying times and hearings by virtual courts have become an order of the day. Yet minimum court etiquette in terms of what can be considered decent dress, background, etc should be followed, given the public nature of the hearings,  the apex court said.

The incident had happened when the top court was hearing a petition seeking transfer of a case pending in a family court in Haryana's Rewari to a competent court in Bihar's Jehanabad.

Most high courts in the country, as well as the Supreme Court, have been conducting hearings via video conferencing during the lockdown period. Refusing to hear the bail application, Justice Sharma, Rajasthan High Court reprimanded the lawyer and issued a formal order recording, ‘Learned counsel for the petitioner was contacted through video conferencing and he was found to be wearing baniyan.’  The order passed by Justice Sharma reiterated that court functioning during the lockdown does not exempt lawyers from wearing their uniform. The High Court order observed that the hearing might be through digital means, the decorum of the court needs to be maintained. 

Advocate in vehicle 

The Gujarat High Court in Misc Application No. 13094 of 2020 in ‘MANSUKHBHAI POLABHAI DHADUK VERSUS STATE OF GUJARAT - 2020 (11) TMI 507 - GUJARAT HIGH COURT’, the High Court directed the Registrar, Judicial to initiate appropriate proceedings against the Advocate for his irresponsible conduct.  The High Court held that the report prepared by the Registry would be forwarded to the Bar Council of Gujarat.  The Bar Council of Gujarat and Bar Association of High Court shall inform the Advocates to maintain a dignified decorum while conducting the matters through video conferencing.  They shall be informed that the proceedings conducted through video conferencing shall be either from their respective residence or any office space, barring any vehicle or any open ground.  While attending the proceedings from their respective residences/offices, they shall also maintain appropriate sitting posture while addressing the Court.

The Presiding Officer DRT – I, Ahmadabad on 03.11.2020 imposed a cost of ₹ 10000/- upon an Advocate who attended the virtual hearing while sitting inside his car.

Sharing of video link

Vide order dated 06.11.2020 the Supreme Court directed that the sharing of screen is prohibited unless permitted by the Court.  Such sharing of Video-Conferencing links or sharing of screen, being violative of the above mentioned Standard Operating Procedure, is unauthorized, and creates hindrance in the proceedings of the Court.   The Advocates/parties-in-person appearing in violation of above mentioned Standard Operating Procedure shall not be allowed to address the Hon’ble Court, rather their audio and video access will be prohibited. Any breach or violation of above directions in future may invite adverse consequences against the Advocate-on-Record/party-in-person, or any other concerned person responsible for the above said violation.

Vide their letter dated 16.11.2020, the Supreme Court Advocates-on-Record Association, New Delhi requested the Supreme Court to withdraw its circular dated 06.11.2020 as there are no facilities made available for oral mentioning in the hearing through video conferencing and further issue an Standard Operating Procedure to enable oral mentioning of matters in the hearing through video conferencing.  The Association further requested to generate additional link to enable access to the AOR/Advocates, to view the proceedings of the Court hearing through video conferencing of all Courts.

Conclusion

The conduct of legal cases through video conferencing is a successful one as observed by the Supreme Court in the present Covid – 19 situations.  There is no much hindrance in conducting the virtual hearings except some cases.  The judicial system is continuously rendering its justice to public even in the unexpected Covid – 19 situations.