Access to justice denied? The arbitrary rule for virtual hearings at the National Company Law Tribunal

While the apex court considers the fate of virtual hearings as a permanent optional mode of appearance available to lawyers, the National Company Law Tribunal (NCLT) through some benches seems to somewhat seal the fate of this endeavour with its latest rule/guideline on virtual hearings.

As per the recent changes to the ‘Notes’ appearing at the top of the causelist which are in the nature of instructions for advocates appearing before the Principal Bench of the NCLT at Delhi as well as Bench – 1 of the NCLT Mumbai Bench, hearing through mobile is not allowed and the advocates necessarily have to log in through a laptop.

While this may seem a trifling matter, the repercussion of not following the instruction is rather punitive. Advocates who do not appear through a laptop but use a mobile phone are denied a hearing no matter the urgency or seriousness of the issue that the advocate may be espousing. One may well argue that this is a housekeeping matter and an advocate is not altogether deprived of audience if he/she adheres to the instructions and appears through the designated mode. While this argument may seem appealing, it does not take into account the ground realities that a practising counsel deals with on a day-to-day basis.

There is no uniform policy across the NCLT Benches with respect to this particular requirement. This means that if one were to appear before any other courts of the Mumbai Bench (apart from Bench 1) or say the Ahmedabad Bench, one would not face this hurdle. Such a stipulation fails to take into the situation on the ground i.e. that many courts across the country are now holding physical hearings. This would mean that a lawyer who is appearing in a physical hearing will either have to carry a laptop to the court or be deprived of a hearing if she also has to appear before any of the aforesaid NCLT benches. This would be a logistical nightmare.

Added to this is the concern of internet connectivity which would necessitate carrying a portable internet connection/dongle or mobile phone hotspot, which may or may not give good connectivity since using the bandwidth consumed on a laptop for an audio/visual hearing would be more.

But most importantly, the requirement restricts access to a court of law only to those who possess a laptop, thereby imposing a significant economic barrier which is completely unnecessary. In framing this rule, the Tribunal seems to assume, or worse indirectly mandate, that every advocate appearing possesses or must possess a laptop. This approach fails to take into the account the fact that scores of lawyers do not possess a laptop given the cost implication. The majority own a smart phone which is much cheaper. The requirement effectively means that either a lawyer spends a sizeable sum to own a laptop or lose an opportunity to be heard. As to what dictates the necessity to impose such a condition is a mystery. It is reasonable for a court to expect that a lawyer appearing before it must have a robust internet connection so that the hearing can be conducted smoothly without any interruptions. Why the same cannot be achieved in an appearance via a mobile phone is unclear at the least, and illogical at worst.

While rules/requirements pertaining to internet speed and dressing etiquette have been specified by many courts, none of them of restricted access by introducing such a requirement.

Matters such as regulating functioning of a courtroom are administrative in nature and a certain degree of latitude to the concerned courts/tribunals is desirous. The problem arises when such matters impinge upon substantive rights of litigants i.e. access to a court of law. Adhocism is required to deal with evolving circumstances, such as the present pandemic, but the same has to have sound basis in reason and logic.

There have been reports about several issues plaguing the functioning of the NCLT Benches including lack of transparency, unfilled vacancies and lack of efficient record keeping, which means the tribunal members do not possess relevant documents/pleadings while hearing the cases, take a liberal approach towards adjourning cases, delays in adjudicating matters etc. Let this latest requirement of ‘appearance through laptop only’ not mar the Tribunal’s reputation further.

Madhavi Nalluri is a practising counsel at the Bombay High Court and NCLT, Mumbai.