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Physical or virtual hearing; what does India call for?

Physical hearings are the heart and soul of our judicial system. During the trying times of the pandemic, we introduced the concept of virtual hearing as an option, but nevertheless, the method has its own limitations, and in no way, it can become a perfect replacement for the actual functioning of court.

When the supreme court of India or the apex issued guidelines on the further working of the court, the main issues that were discussed was the need to reduce the physical presence of all litigants within the court premises by adapting the social distancing guidelines. These guidelines were issued by invoking Article 142 of the Indian Constitution as an extra-ordinary jurisdiction.

But now, with things turning back to normal, states have been requesting for resumption of physical hearings in courts. On October 8th, 2021, the Bar Council of Tamil Nadu and Puducherry passed a resolution, urging for the re-opening of the madras high court.

During the hearing, several points were raised, including, that majority of the advocates have received their vaccine shots, there isn’t any requirement to continue with virtual hearings. Another issue to be raised was the improper internet connection in many areas, which can sometimes delay the hearings in court.

State secretary of (All India Lawyers Union) AILU, advocate, L Shajji Chellan said, “When government counsels are present in the open court and get adjournment in some cases, it is difficult for the petitioner counsels to effectively oppose the same through virtual mode. This affects the litigants when there is urgency in the matter. Also, lengthy arguments are not possible in online hearings.” Chellan also demanded for the opening of the bar associations and law chambers. He pointed out, that advocates need space to sit and interact with their clients in the court campus.

Another advocate, S Srinivasa Raghavan raised similar opinions. He voiced that allotting a separate space or facility in the High Court campus for conducting virtual hearing, might prove to be successful for lawyers, and they will be able to present their case without any disturbance.

The support to re-introduce the concept of physical hearing is being backed by many other advocates too. Senior advocate, Fali S Nariman, stressed that virtual functioning of courts affects mostly the young lawyers as compared to their seniors. In a lecture, he spoke, “In the Supreme Court at least I know, and the young advocates are suffering a lot. The senior advocates are alright. They are able to address people. The younger advocates find it very difficult. But of course, we have to weigh the is paramount."

Recently, the Supreme Court had its complete physical hearing, for the first time since March 2020 when it switched to virtual mode with the onset of COVID-19. Moreover, The Supreme Court Bar Association and the Supreme Court Advocates-on-Record Association have been making consistent demand for the resumption of physical hearings with the abatement of the pandemic. Following their demands of the bar associations, the Supreme Court on October 7 decided to have mandatory physical hearings on Wednesdays and Thursdays, with the hybrid option retained on the other days.

But not every person is in favour of physical hearings. Another section of the bar being represented by Senior Advocate Kapil Sibal, requested the CJI of India to retain the hybrid option, saying that in voluminous cases involving several briefing lawyers, physical hearings will be difficult within the restrictions imposed by the COVID-19 protocol. This request was also backed by Solicitor General Tushar Mehta, Senior Advocate Dr.AM Singhvi and Mukul Rohatgi.

When initially, the e-filing system was virtually launched by the Supreme Court, there was no intention to replace physical hearings with the virtual ones. As said by the chairman of the Supreme Court E- Committee Justice, D.Y Chandrachud, the approach of virtual hearings was just to make sure those justice remains accessible during the pandemic and that the Indian Judiciary is flexible to cater to the needs of its citizens. In this modern era, as we are moving towards a more digital and technically- oriented nation, it does not imply that physical hearings will lose their essence.

India is a developing nation, and recently entered the ring of middle-income countries. A country like ours, where smartphones and laptops are a luxury for many people, we truly cannot afford virtual hearing. For the upcoming years, there is no chance that the virtual hearing will replace physical hearing completely, however whenever a need will arise, a virtual court system is the perfect alternative, and the approaches or systems for serving justice can co-exist.


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