Doors of justice being closed for the poor, questions on confidentiality: Lawyers on the Supreme Court's video conferencing hearings

Adapting to the COVID-19 pandemic and the subsequent lockdown, the Supreme Court of India has been conducting hearings through video conferencing since March 27.

Judges of the Apex Court have been assembling at one of their residences or chambers, while lawyers arguing in the listed matters are required to join the video conference from their homes or offices.

Bar and Bench spoke to some of the lawyers who have appeared for virtual hearings over the past couple of weeks to find out their opinion on how the system is functioning and how it can be improved.

I was not able to convey even 5% of what could have been argued in an open courtroom, Advocate Mehmood Pracha

"The technical arrangement for the video conference was extremely poor. Since we did not get the links to join the call for a very long time, we went to the Supreme Court itself. We did not get the link till the very last minute and the quality of the call on the phone was so bad that we had to attend the video conference from the press room.

Even then, we could not hear half the things that were being said by the Judges or the Solicitor General. Most of the things I was saying were not being heard by the judges, and thus it resulted in the order we got."

Pracha had argued a plea on April 15 before the Supreme Court seeking directions to provide Personal Protective Equipment and to conduct mass testing for all Safai Karamcharis (sanitation workers) in the wake of COVID-19 pandemic. However, the Supreme Court had disposed of the matter, asking Pracha to approach the Delhi High Court.

"Safai Karamcharis are fighting COVID-19 from the front...[they] are the most unprotected. Through video conferencing, I was not able to convey even 5% of what could have been argued in an open courtroom. I could not hear the observations being made by the judges and thus I could not satisfy their query.

In this system, there is also no way to take the judges through the annexures. There can be a system of instant email to the judges along with a camera on my documents. Still there is no such arrangement. Thus, the entire process has been managed in a very casual and non-professional manner.

The Supreme Court should also check that there needs to be a contract with Vidyo etc so that all these proceedings are not leaked and that the confidentiality is maintained. Least what can be done is to purchase a dedicated platform with a confidentiality agreement."

Can hear a judge but cannot see him, difficult to argue: Advocate Subhash Chandran

"There is a lot to improve in the present facility. When I was appearing, I could only see the presiding judge, Justice NV Ramana, whereas I could hear only Justice Sanjay Kishan Kaul. However, my other colleague informed me that Justice Kaul was visible on his screen. Justice Kaul was asking questions, but I could not hear him. Since another lawyer was with me in a connected case, he answered it. If I was alone during the hearing, I would not have heard the judge and his questions would have remained unanswered.

A lot of time was spent by the judges on the technical support team. Justice Ramana had to ask the support team to increase the volume, etc.

However, another connected matter of nurses association was taken up together, but Advocate Jose Abraham could not even appear before the court at all. Ultimately, only the client suffers."

E-Filing is very good, but enquiring about a petition being listed is a painstaking process: Advocate on Record Ejaz Maqbool

"The filing of the petition which now happens through the Supreme Court portal requires pagination to be done. In PDF, pagination cannot be done. During lockdown, they should have a system by which PDF of petition can be accepted and the rigmarole of pagination etc can be avoided.

A WhatsApp group can be created where all the petitions can be shared or in a mail with a standard fee of Rs 1,000 for each petition. This can speed up the process. Enquiries of petition being listed is also a painstaking process, but we cannot blame anyone now because these are difficult days."

The judiciary has closed its doors on the poor: Senior Advocate Colin Gonsalves

"In the beginning, the Supreme Court and the [Delhi] High Court were very poor in responding via video conferencing, but now the systems have improved and now they are average in functioning. If you look at high courts across the country, with the exception of a few doing extraordinary work like the Karnataka High Court, others have their doors shut on human rights cases."

"The people are suffering because the judiciary has turned them away. The Chief Justice of India and his brother judges must have a study done of the people’s perception of the functioning of the high courts. From a scale of poor to excellent, the response of the best of the lawyers regarding functioning of the high courts during this lockdown will state that it is very poor.

The judiciary has closed its doors on the poor and on human rights during the lockdown, with the exception of the Delhi High Court and the Supreme Court, to some extent only.

I don't want to concentrate on the technical glitches, because the real issue is that there is no will to seriously hear matters that are coming up. The video conferencing has made it easy for a judge to hear cases at his home, so what is the hullabaloo about extremely urgent matters? Why would a court hear these extremely urgent matters as compared to urgent matters? Why can't a seven to eight hour court sit wrapping up 40 to 50 matters?"

"There is a panic among judges about the Coronavirus and the best example was set by Justice Ravindra Bhat, who went out and distributed food. When the government tells us how we should be panicked, at times like this, the judiciary must defy the government. Get curfew passes and see where food is distributed in anganwadis or where people are starving. The judges should go there and defy the government. This is what dispensation of justice is all about. To show courage."

Listing of cases is incredibly difficult: Advocate Karuna Nundy

"When my matter was heard by the Supreme Court, the facility was in the initial stages and they were still sorting themselves out. The numbering of the petition was difficult for the AoR; the most effective way found was use of the Adobe Pro software. Listing of the case was incredibly difficult.

My first petitioner, Munni Bi, was a Bhopal Gas victim and on a ventilator. I had to speak with multiple registrars and also reached out to a judge's office and I was told that it would be listed. After about 30 calls, we were connected to someone who helped in getting it listed."

"The petition was for over 5 lakh Bhopal Gas Tragedy victims and thus the urgency. The first five people to die of COVID-19 in Bhopal are the Carbide gas leak victims.

The tech at the Vidyo hearing was reasonably effective - though we got the link at the last minute and there were some technical glitches when we couldn't hear the judge. However, we were asked to approach the Madhya Pradesh High Court.

Though we approached the High Court immediately, it took about a week to arrange the hearing and Munni Bi died. She was not taken off the ventilator, but she got reduced healthcare. In the end, the Bhopal Memorial Hospital & Research Centre was de-notified as a COVID-19 hospital, and so for the remaining gas victims this is a win."

There is a need for a dedicated media kiosk for proper dissemination of information: Senior Advocate Vikas Singh

"It's an excellent facility and the Coronavirus has accelerated the entire thing and has acted as a catalyst. There are a lot of challenges at the moment like with any new facility. Problem was that only one video link used to be shared earlier, so the instructing lawyer did not know what was happening. However, after the latest circular, two links would be provided. The third link is for the client.

Other issues were connectivity and for that we have made an intervention application, where we have suggested that a dedicated media kiosk should be set up so that anyone accredited with the Supreme Court can observe the proceedings.

[Going] forward, there will be multiple courtrooms functioning through video conferencing. Hence, several cubicles for media should be there. Next, for a lawyer, both option of video conferencing and regular courts should be there and thus cubicles should be made for such lawyers."

Whenever judges have to discuss, the screen goes blank for us and lawyers are left in the lounge, Additional Solicitor General Maninder Acharya

"I did not face any challenge with technology, but many of us had, as we are used to the feel of paper and pacing up and down court rooms. However, sometimes audio is there without video and vice versa.

Normally, in division benches, the judges discuss among themselves. However, now the judges are at different places and whenever they have to discuss, the screen goes blank for us and lawyers are left in the lounge. After they are done, we again see the video.

Everyone from the Bar to the Bench is trying to make it meaningful. However, we still do not have any experience of final hearings as right now, it's only about urgent cases, whereas final hearings include volumes of papers etc. Suppose Section 34 of the Arbitration and Conciliation Act is involved, then there are tons of books which need to be referred to."

Bench had to give another date as petitioner could not log in: Senior Advocate Kirti Mishra

"It was new and different. The lines and connections are not completely set up yet, as we were not getting the links initially. The other side's counsel could not be contacted. After I presented the case, since the petitioner’s counsel was not there, we were asked to come on another day. The session lasted from five to seven minutes. When the case was going to wrap up, the link of the petitioner got activated and then he argued and an order was passed.

On March 23, a screen was set up in court where judges could be seen with only few lawyers in the room. Compared to that, the video conference facility was a much more informal set-up."

No system for lawyers interested in case to witness proceedings, no facility to pass on documents for immediate reference: Senior Advocate ADN Rao

"There is a lot of scope for improvement. The system is not perfect now...As of now, you can participate only if you get a link. You may be a part of the case, but you wont get that link. There are several lawyers involved in a case but here there is a limitation. Some advocates often look at cases because of interest, but as of now, one is deprived.

Often, we respond to judges and hand over something, but in this setup, we cannot hand it over. If we want to immediately scan and send something then the phone needs to be used but again that phone is used for the video conferencing. Thus, all of this may hamper justice dispensation too.

Often, the court needs to hear several views in a courtroom, but now this is limited. However, VC should continue even after lockdown and glitches should be looked at. Now, we can be in court in two minutes and it acts as a big time saving point."

Supreme Court needs to rope in the best for video conferencing and not depend on government for technology: Senior Advocate Dushyant Dave

"The setup is completely unsatisfactory and it needs a fundamental change. The Supreme Court will have to rope in the best players in the world for this purpose and not depend on the government to be provided with technology.

I would be really happy if the Supreme Court involves the Bar also in this exercise. I don't think at this rate we can deliver justice to the people."

The court should separate all IAs and take them up on their turn. This will prevent participants from speaking at once: Advocate Shoeb Alam

"Oral advocacy through video link offers a potential substitute to the conventional system. However, It also poses critical challenges. At my first hearing, I was representing an applicant, but a video link was not shared with us by the Registry despite repeated requests. Some other applicants, in the same matter, were given access.

Fortunately my IA, wasn’t dismissed for non-appearance. We represented to the Secretary General, and a week later when the matter was next listed, the Registry did share a video link.

I experienced technical glitches once or twice, but the video was smooth. The audio, however, had constant echo, as some participants were in rooms where the sound was reverberating. The judges were receptive and pleasantly accommodating; we got a good order which made the experience memorable!

The recent SOP issued by the Supreme Court addresses a few concerns. Video link etiquettes like inputs on attire, display of formal screen name, speaking on turn, making succinct submissions, avoiding prolixity, adjusting light to avoid camera glare etc need to be addressed.

Also, unlike a conventional court setting where the court masters participate and call out the IAs, in a VC, the court should separate all IAs and take them up on their turn. This will prevent participants from speaking at once, clamoring for the attention of the bench."