Supreme Court interdicts high courts from denying access to hybrid mode of hearing

"The use of technology by the Bar and the Bench is no longer an option but a necessity. Members of the Bench, the Bar and the litigants must aid each other to create a technologically adept and friendly environment. The above directions must be implemented by all concerned stakeholders in letter and in spirit," the Bench said.

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THE Supreme Court on Tuesday made available its October 6 judgment interdicting high courts from denying access to video conferencing facilities or hearing through the hybrid mode to any lawyers and litigants desirous of availing of such a facility.

The judgment, signed off by Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra observed that technology plays an essential role in securing access to courtrooms and, consequently, access to justice for citizens across the country.

"Lawyers and litigants using electronic gadgets to access files and legal materials cannot be asked to turn the clock back and only refer to paper books. In the march of technology, the courts cannot remain tech averse," the Bench added.

It further opined that placing fetters on hybrid hearings, like mandating an age criterion, requiring prior application, and frequent denial of access to virtual participants has the direct effect of discouraging lawyers and litigants from using technology.

"Not only does this affect the efficiency and access to courts, but it also sends out the misguided message that access to courts can be restricted at whim to those who seek justice," the Bench said, while berating the high courts which discontinued hybrid mode of hearing post-pandemic.

The Bench has issued a slew of directions to high courts, and Union and state government, as follows:

• All state governments must provide the funds necessary for high courts to put into place the facilities requisite for the purpose of ensuring hybrid mode of litigation within the time frame indicated. 
• High courts must ensure that adequate internet facilities, including Wi-Fi facilities with sufficient bandwidth are made available free of charge to all advocates and litigants appearing before the high courts within the precincts of the high court complex. 
• The links available for accessing video conferencing/hybrid hearings must be made available in the daily cause-list of each court and there shall be no requirement of making prior applications. No high court shall impose an age requirement or any other arbitrary criteria for availing of virtual/hybrid hearings

The Bench also directed that all high courts put in place a standard operative procedure (SOP) within a period of four weeks for availing of access to hybrid/video conference hearings.

"In order to effectuate this, Justice Rajiv Shakdher of the High Court of Delhi is requested to prepare a model SOP, in conjunction with Gaurav Agrawal and K. Parameshwar, based on the SOP which has been prepared by the e-committee.

"Once the SOP is prepared, it shall be placed on the record of these proceedings and be circulated in advance to all high courts so that a uniform SOP is adopted across all high courts for facilitating video conference/hybrid hearings," the Bench ordered.

The Bench also summoned information from high courts before the next date of hearing. It directed high courts to provide information on:

• The number of video conferencing licences which have been obtained by high courts and the nature of the hybrid infrastructure.
• A court-wise tabulation of the number of video conference/hybrid hearings which have taken place since April 1, 2023.
• The steps which have been taken to ensure that Wi-Fi/internet facilities are made available within every high court to members of the Bar and litigants appearing in person in compliance with the above directions.

In addition, the Bench directed the Union government to ensure that on or before November 15, 2023, all tribunals are provided with the requisite infrastructure for hybrid hearings.

The Bench noted that some high courts had made considerable progress and hearings are being provided through the hybrid mode or video conferencing at such high courts.

While other high courts have stated that facilities are available, the Bench highlighted that when the statistics in regard to the actual number of hearings through video conferencing/hybrid mode had been disclosed, it appeared that the performances were abysmal.

In one high court, the Bench noted, as few as three hearings had been conducted in the virtual mode in the last three months.

The Bench also flagged the arbitrariness of the existing SOP by pointing out that advocates who are 65 years of age or above are permitted to argue through the virtual mode.

"The age restriction would unfairly disadvantage younger lawyers and restrict access to technology only in the hands of the seniors at the Bar. Such criteria do not bear any nexus to the aim of using technology to increase access to courtrooms," the Bench held.

Click here to read the Judgment.