A case for permanent hybrid courts

HAMZA LAKDAWALA & NAVAZ DORDI examine whether regional benches of the Supreme Court are permitted by the Constitution, and argue for making the physical-online hybrid hearing model in the Supreme Court permanent by enumerating the benefits that would accrue to the justice delivery system from the same.

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INDIAN Courts, which had moved virtual in the wake of the COVID-19 pandemic, are finally starting to switch back to physical hearings.

This return started off with lower courts, which were followed by the High Courts in Bombay and Karnataka, and finally the Supreme Court of India. While some of these have gone completely physical, others have chosen to continue in hybrid mode.

Lawyers of all standing and seniority, who had gotten used to appearing in courts remotely from their hometowns and vacation destinations, are now finding it difficult to return to physical hearings. Further, the Supreme Court's decision to go completely offline on certain days has upset non-Delhi lawyers, who enjoyed the privilege of appearing before the top court whilst still being in their hometown. This has again given rise to the debate surrounding the seat of the Supreme Court, the demand for regional benches, and the future of the technology in Indian litigation.

Every few years, there is a renewed demand for regional benches of the Supreme Court of India. These demands often include the want for new benches of the Supreme Court to be set up in the original presidency towns, that is, Bombay (now Mumbai), Madras (now Chennai), and Calcutta (now Kolkata), in addition to its existing seat in Delhi. These demands are made with the goal of widening the reach of the court to litigants outside of the country's capital.

The Tenth Law Commission of India, in its 95th Report under Justice K.K. Mathew opined that "the Supreme Court of India should consist of two Divisions, namely (a) Constitutional Division, and (b) Legal Division." The Eleventh Law Commission and the Eighteenth Law Commission reiterated similar suggestions.

Recently, senior advocate and Rajya Sabha member P. Wilson introduced in the Parliament a Private Member Bill called the Constitution (Amendment) Bill, 2020, which seeks to establish four Permanent Regional Branches of the Supreme Court to decentralise the Supreme Court. Around the same time, five bar councils in south India submitted a representation to the Chief Justice of India N.V. Ramana, and Vice President M. Venkaiah Naidu requesting that a Supreme Court bench be set up in south India.

In March this year, a parliamentary panel said the government should consider setting up more Supreme Court benches. Further, in a matter that is currently sub judice in the Supreme Court of India, the All-India Jurists Association has sought a declaration that the right to participate in court proceedings through virtual courts via video conference is a fundamental right under Article 19(1) (a) and (g) of the Constitution in response to a notification of the Uttarakhand High Court making physical appearance mandatory.

Also read: Regional Benches of Supreme Court: Can hybrid hearings provide the alternative?

Does the Constitution permit regional benches? 

Article 130 of the Constitution of India states that the Supreme Court shall sit in Delhi or in such other places or places as the Chief Justice of India may appoint with the prior approval of the President from time to time.  A plain reading of this Article makes it clear that it is the entire Supreme Court that may sit either in Delhi or in any other place or places, and there is no room for setting up regional benches under this article. Therefore, if regional benches are to be set up, it would require an amendment to the Constitution.

The question that some may then ask is if this amounts to tinkering with the Basic Structure of the Constitution. The answer to this question is unknown. Assuming that it does not amount to tinkering with a basic structure of the Constitution, it will also have to be decided if the regional benches would be vested with powers to exercise jurisdiction under Article 32 of the Constitution, or would they only act as the courts of final appeals exercising jurisdiction to hear appeals from High Courts.

Article 32 of the Constitution bestows upon the Supreme Court the power to issue writs, orders, and directions for the enforcement of any of the rights conferred in Part III of the Constitution. Clause (3) of Article 32 states that without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). If regional benches are to be set up, and the constitutional amendment to this effect does not violate the basic structure, the Parliament, at the very least, may have to empower these regional benches under clause (3) of Article 32 to exercise powers generally exercised by the Supreme Court under clauses (1) and (2) of Article 32.

As is clear, the setting up of regional benches would require a lot of constitutional manoeuvring. This seems harder in light of the fact that while the current regime enjoys a majority in the Lok Sabha, that is not the case when it comes to the Rajya Sabha. Further, the Supreme Court may very well strike down such a constitutional amendment for violating the basic structure and hampering the independence of the judiciary. This would not be the first time the court would do something like this.

In 2015, the apex court struck down the Constitution (Ninety-Ninth Amendment) Act, 2014, which replaced the collegium system with the National Judicial Appointments Commission. While declaring the amendment unconstitutional, the court stated that it violated the basic structure of the constitution and hampered the independence of the judiciary.

Also read: Making a case for regional benches of the Supreme Court

Benefits of hybrid hearings 

While the virtual hearings are a product of the COVID-19 pandemic, they are a welcome addition to the Indian judiciary. There are a great many benefits of not only retaining hybrid courts but also in further promoting the implementation of hybrid systems in as many courts and tribunals as possible.

No need to amend the Constitution

As discussed earlier, setting up regional benches would require an amendment to the Constitution. Retaining the hybrid system and further improving it would make the top court more accessible to lawyers and litigants without setting up regional benches or amending the Constitution. The court can deeply integrate the hybrid system pursuant to its powers under Article 145 of the Constitution, which empowers it to make rules for regulating the practice and procedure of the court.

Easier access to the Supreme Court 

It is well documented that the geographical location of a litigant heavily determines the odds of them knocking on the door of the Supreme Court of India. North Indian states generally litigate more in the top court than their south and northeast counterparts. This was acknowledged by the Attorney General of India K.K. Venugopal last year.

This was observed by Justice N. Kirubakaran of the Madras High Cour recently. He noted that when all the cases before the Supreme Court are examined, 12% of the cases are from Delhi, 8.9% of the cases are from Punjab and Haryana, 7% of the cases are from Uttarakhand, 4.3% of the cases are from Himachal Pradesh. However, only 1.1% cases are filed against the judgments of the Madras High Court, 2.5% of the cases are from Kerala and 2.8% of the cases are from Andhra Pradesh. This data tells the story of how Indian litigants have had restricted access to justice purely based on their geographical location. Out of the many historical injustices that may be fixed with the use of technology, this surely is one.

Infrastructure cost

The biggest cost that would follow the setting up of regional benches would be the investment in infrastructure. Land, construction, staff, and so on would make for a huge financial obligation.

In comparison, the infrastructure required for hybrid hearings is to some extent already present. The infrastructure that was acquired during the pandemic for virtual hearings can be retained and be built upon as time passes. There would also be no need to hire staff as would be the case when setting up regional benches.

For example, the cost of the original construction of the Bombay High Court's Nagpur bench was Rs. 737,746/- in 1936. Considering the current inflation range, the cost would be approximately around 5 billion rupees or more. Building four Supreme Courts would certainly be a huge burden on the exchequer.

Also read: Vice President Naidu bats for splitting of Supreme Court, setting up regional benches

Reducing the cost of litigation

One of the biggest advantages of hybrid hearings is that lawyers from far away towns can appear before the highest court without having to travel. Travelling and accommodation have been one of the biggest costs of sending local lawyers from the High Court to appear in matters before the Supreme Court. This cost increases tenfold when there are multiple dates of hearing or adjournments. If the hybrid system is retained, lawyers can appear before the Supreme Court from anywhere without having to spend money on travelling or stay.

When the lawyer engaged at the High Court is incapable of flying down to Delhi, the client has no choice but to engage a Delhi-based lawyer. This often means spending more money on the new lawyer and paying for the conferences that come with it. Also, the Delhi-based lawyer may not be as well-versed with the matter as the original lawyer is considering that the latter has handled the matter for a longer time and knows the facts better. Therefore, switching to hybrid courts would make litigation cheaper while allowing the client to retain the original counsel.

Opportunities for non-Delhi lawyers

Practicing at the Supreme Court often required a lawyer to move to Delhi from their hometown. This, in many cases, would mean that they would have to abandon their practice in their hometown, which took years to build, and then start again after moving to Delhi. This is a huge cost for most lawyers. Add to this the cost of moving and getting accommodation in an alien city.

However, if the court retains the hybrid system, non-Delhi lawyers would have a huge opportunity to appear before the Supreme Court without having to abandon their hometown practices and starting over. This would also greatly benefit the Supreme Court, as well as the High Courts as the judges would have an opportunity to be addressed by a more diverse all India Bar.

Live Streaming is as good as open court

One of the biggest criticisms of virtual hearings was that it restricted access to court hearings to the media and common public, and was contrary to the open courts principle which requires that court proceedings presumptively be open and accessible to the public and to the media. There is merit in this criticism.

However, a solution for this problem already exists. In its judgement in the case of Swapnil Tripathi v. Supreme Court of India (2018), the Supreme Court ruled that proceedings of cases having constitutional and national importance should be broadcast to the public. The Supreme Court has not implemented its own judgement yet. This was before the pandemic, presumably, due to the lack of infrastructure. On the other hand, some high courts have started live-streaming their proceedings. This is again, presumably, due to the availability of the infrastructure that the courts invested in during the pandemic. Hybrid courts, coupled with live streaming, would not only make access to justice easier, but would also bring much-needed transparency to India's courts.

Also read: Can branches of the highest echelon of Indian justice delivery system provide shelter to the seekers of justice?

Countries as diverse as the United States, Singapore, Turkey, Canada, Italy, Belgium, Austria, Germany, Finland, Sweden, France, Lithuania, Russia, Albania, Croatia, Hungary, Ireland, San Marino, Serbia, Switzerland, Ukraine, United Kingdom, and Greece already have some form of virtual or hybrid options in their judiciary. As the times change, the Indian judiciary must change with it. The time has come to decide if the courts wish to function only in the buildings that they sit in, and if they wish to open the doors of justice to everyone, including those who may not be able to physically appear before them.

This is not the first time that the Indian judiciary has faced such a choice, nor will it be the last. Whatever the court decides, will define Indian litigation for decades to come.

(Hamza Lakdawala is a researcher and writer from Mumbai. He is currently a Research Associate at the Chambers of Ms. Indira Jaising, Senior Advocate. Navaz Dordi is a law student at Pravin Gandhi College of Law from Mumbai. She is currently a Legal Intern at the Chambers of Ms. Indira Jaising, Senior Advocate. The views expressed are personal.)