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The draft legislation framed by the Senior Advocate and his team envisions the modalities by which virtual and physical hearings can take place before the Apex Court for the foreseeable future.
With a view to setting the ball rolling to create a uniform procedure for hearings of the Supreme Court amid the COVID-19 pandemic, Senior Advocate Shyam Divan and his colleagues have framed a draft legislation.
Titled the Supreme Court (COVID-19 Pandemic) Emergency Procedure Rules, 2020, the draft legislation envisions the modalities by which virtual and physical hearings can take place before the Apex Court for the foreseeable future.
As per the explanatory statement of the Rules,
“The present circumstances require new procedures to be adopted by the Supreme Court of India as a temporary measure until the health threat caused by COVID-19 fully abates or recedes substantially to a level where work may resume normally. These rules are issued as a temporary measure to ensure functioning of the Supreme Court of India with a view to provide access to justice and to uphold the Rule of Law.”
Rules framed by Divan and team
Speaking to Bar & Bench, Advocate Udayaditya Banerjee, who helped draft the Rules, revealed the research that went into drafting the Rules. He said,
“We took a look at how courts in four or five international jurisdictions are functioning during the pandemic. We also evaluated our own experiences of virtual hearings being taken up by the Supreme Court and thought of how they can be made more workable.”
The Rules aim to put in place a procedure for hearings that are currently taking place through video conferencing, as well as physical hearings that may take place in the near future.
Rules for Video Hearings
The Rules envision that a video link be provided to all parties to the proceedings. A maximum of three links shall be provided to each party to enable the Advocate-on-Record, the arguing counsel, and one other person to participate in the hearing. A party-in-person shall be given a video link for the entire duration of the hearing.
A maximum of three law correspondents from the media shall also be provided video links for hearings. In cases of public importance or interest, the Rules state that the Registry shall endeavour to provide a video link to the designated press room on the Supreme Court premises.
Advocates who find it convenient to present cases virtually from the Court premises may also be provided such facility by the Registrar.
The cause list indicating the day, date and approximate timing of the video conference hearing shall be prepared two working days prior to the date of the hearing. Urgent cases may be listed for video conferencing hearing at shorter notice, and shall appear in a supplementary cause list notified on the day prior to the date of the hearing.
As regards the dress code, the Rules state that lawyers shall be fully attired as if appearing physically before the Court. However, in line with the Court’s latest notification, the use of gowns is dispensed with.
On the topic of etiquette to be maintained during video conferencing, all participating parties shall keep their microphone in the mute mode, save and except when addressing the Court. Parties must ensure that they are participating from a quiet, indoor setting with a sober backdrop.
One of the biggest concerns surrounding virtual hearings that have been taking place since the lockdown pertains to technical problems. Counsel have complained that they were unable to make arguments owing to connectivity issues and technical glitches during video conferencing.
The Rules aims to address this issue by providing that if the Court is satisfied that lawyers were prevented from presenting their case, it may re-schedule the hearing or take it up at a later date. Lawyers who face such issues can make an application to the Court, to be accompanied by an affidavit, within two days of the hearing.
Addressing another concern regarding the openness of virtual hearings, the Rules provide for live streaming of video hearing proceedings. This stream will be available on the Supreme Court website.
On this provision, Banerjee said,
“The number of links being given out to journalists is limited right now, which results in a bit of imbalance. The live streaming clause is not essential at this stage. If the infrastructure permits, it can be implemented.”
Rules for Courtroom Hearings
Part III of the Rules also lay down the procedure for physical hearings, as and when the Court deems it fit to start the same.
Given the fact that concerns surrounding the pandemic are here to stay, the Rules provide that these hearings are to take place while observing physical distancing guidelines. Says Banerjee,
“Part III will come into play in a more eased-out scenario, where we will still need physical distancing. The whole idea of the Rules is to provide for a mechanism not only for hearings conducted virtually, but also when the Courts decides to have physical hearings in courtrooms.”
As per the Rules, each party in a case may be represented in the courtroom by a maximum of three advocates including the advocate on record and the arguing counsel. A party-in-person may be accompanied by one other person during the courtroom hearing.
One clerk will be permitted in the courtroom on behalf of each party. The clerks will be permitted into the courtroom before the commencement of the hearing and after the conclusion of the hearing. They will remain outside the courtroom during the course of the hearing.
Similar to the Rules for virtual hearings, a maximum of three law correspondents from the media shall be permitted entry into the courtroom for a case. In cases of public importance, the Registry shall provide a video link to the designated press room on the Supreme Court premises.
In the event that physical hearings are given the go-ahead, the Rules provide that some matters can continue to be heard virtually. Banerjee says,
“There are a few matters which we think can continue to be heard by video conferencing like transfer petitions listed before Single Judges. The number of matters are more in those cases, so they may potentially lead to more crowding. In the Registrar Court, usually you have more than 80 matters being taken up in 20-30 minutes. Those can certainly be handled by virtual means till such time the COVID-19 threat goes away.”
The Rules also provide for a consent procedure for final hearings. If all parties agree to a virtual hearing, the case shall be listed for hearing through a video link. In the absence of consent of all parties, the case shall be listed for hearing before the Court.
The Court is also given the power to direct listing of cases for physical hearing when it is of the opinion that the nature of the case demands the same. The Chief Justice of India may notify certain classes of cases that will not be heard through a video link and shall be heard in Court.
Summing up, Banerjee says that the objective behind publicising the Rules is to garner opinion from stakeholders in the legal fraternity.
“The whole purpose of publicising these Rules is to create a debate. We don’t even seek to propose that this is how the system should work. We just wanted to initiate a discussion.
These Rules can be used as a model for the actual Rules, and may be replicated for the High Courts as well.”
[Read the Rules]
Email your suggestions on what the procedure for hearings during the COVID-19 pandemic should entail to email@example.com