‘Public hearing fundamental to democracy’: Lawyers on SC hearings via video conference

With Supreme Court conducting proceedings via video conference, legal experts have raised concerns over the fact that these are not open to public anymore.

The Supreme Court of India | Manisha Mondal | ThePrint

New Delhi: The Covid-19 onslaught in India has halted several businesses and establishments even as it has pushed for a change in the functioning of essential services, including the judiciary.

Adapting to social distancing measures, the Supreme Court of India has been conducting hearings online via video conferencing. Judges have been assembling at the houses or chambers of one of their colleagues and have been hearing cases through the video conferencing app, VIDYO.

However, experts have since raised several concerns over the technical aspects of the process, as well as the fact that the hearings are not open to public viewing anymore.

VIDYO vs Zoom

According to the operating procedure laid out by the Supreme Court, lawyers are first required to file their application, preferably through the e-filing mode on the court website, after which they are allowed to send another application elaborating on the urgency of their plea. If accepted, their plea is then listed before the court.

A WhatsApp group is created by the registry before the hearing, for lawyers to raise queries related to the video conferencing process. Additionally, helpline numbers have also been designated for their assistance.

An invitation link for VIDYO, a video conferencing app, is sent by the court registry to the mobile numbers/email addresses to the lawyers around half an hour before the scheduled hearing. Lawyers are barred from sharing or forwarding the link to anybody else.

The parties have been strictly directed to keep their mics on mute at all times, except for when they are asked to make submissions by the bench. They are also prohibited from recording, copying, storing or broadcasting the proceedings.

Therefore, the proceedings can now only be viewed by the lawyers and their clients, and are not open for public viewing. As against this, Bombay High Court, Kerala High Court and Orissa High Court were conducting open access hearings through the app Zoom.

However, the high courts of Bombay and Orissa have stopped using this application, following an advisory issued by the Ministry of Home Affairs calling it unsafe.

A Kerala HC official told ThePrint on condition of anonymity that the court will continue Zoom, with greater security in the app settings.

Office reports, time slots for hearing

Highlighting the shortcomings of the system in place and suggesting changes for smoother hearing of cases, the Supreme Court Advocate on Record Association (SCAORA) wrote to the top court last week.

It pointed out that there have been instances where lawyers have not been sure about the documents taken on record. SCORA suggested that ‘office reports’ be uploaded on the official court website before a PIL is heard. This would allow State Counsel to confirm the documents taken on record, it said.

The association also suggested that time slots be allocated for hearing a PIL where several lawyers need to appear. Since only a limited number of video conferencing links can be issued for a particular hearing, it claimed that several state counsel are unable to attend these hearings.

WhatsApp hearings, technical glitches

In the absence of necessary infrastructure, the court has had to face several hurdles since it began virtual hearing of cases.

On 3 April, the proceedings even took place through WhatsApp video call, after technical issues delayed the hearings by at least 30 minutes.

Supreme Court lawyer Shivam Singh, who appeared in the court virtually on 17 April, told ThePrint that the lawyers are supposed to join the call 15 minutes before the court convenes and wait for their turn. Parties are logged out as soon as the hearing in their matter finishes.

But Singh suggested that lawyers should be given the freedom to view all hearings or to join in only when their turn comes, so as to minimise the waiting time.

He also said that he attended the hearing on his mobile, as the link was sent to him on his WhatsApp number. This made him “anxious” about getting a call during the hearing, which would’ve disrupted the proceedings, he said.

Another lawyer, who did not wish to be named, complained about the limit of 5 megabytes (MB) to upload the petition and 2MB to upload any additional documents on the Supreme Court website. The lawyers are required to file a short petition to get a matter listed urgently, followed by filing of additional documents later along with an application.

“With a limit of 2MB, uploading additional documents becomes an issue and the file has to be broken down into several volumes to be able to do that,” he added.

Questions on ‘efficacy’

The concerns surrounding the video conferencing process became pronounced during the final hearing of the Kerala-Karnataka border dispute in the Supreme Court on 7 April.

Standing Counsel for the Kerala government, advocate G. Prakash told ThePrint that they were told that they would receive the link for the hearing. While the lawyers kept waiting, they learnt through the news that the matter had already been heard.

“We were not given any information on whether the matter was taken up or whether it was heard or if an order was passed,” he said.

Prakash was later informed that the matter was disposed of after Solicitor General Tushar Mehta informed the court that a consensus had been arrived at.

“If we were in an open court, we could’ve made submissions when the matter was taken up. Those facilities are lacking [in the video conference proceedings],” he told ThePrint.

He also pointed out that in its order, the court recorded that nobody appeared on behalf of the petitioners, when in actuality, they had been waiting to join the hearings but weren’t able to.

Advocate Jose Abraham, who had filed a connecting plea in the Supreme Court in the same case, also wrote to the Supreme Court secretary general, raising “serious question” on the “efficacy of video conferencing facility”.

The 7-April note claimed that they had a few more “substantial submissions” to make in the court, but the matter was disposed of without hearing them.

“It is also submitted that we have been (sic) waiting since morning for the link to be shared for the hearing and we got to know the status of the case only from the media,” it said.

The note said that senior advocate Santhosh Paul, who had been engaged by them, was also waiting for the hearing.

‘Public hearing fundamental to democracy’

Lawyers have since also raised concerns regarding the closed nature of hearings through video conferencing.

Emphasising the importance of open court hearings, senior advocate Vibha Datta Makhija told ThePrint, “While technology is here to stay, its use cannot undermine basic tenets of natural justice and rule of law. An open court system is the justification of authority of courts.”

Makhija referred to the nine-judge Constitution bench judgment in Naresh Shridhar Mirajkar and others v. State of Maharashtra and another. In this case, the court had held that “public hearing of cases before courts is as fundamental to our democracy and system of justice as to any other country”.

However, she added that the current circumstances, in view of Covid-19, can be considered exceptional.

“Hearings by way of video conferences in which public cannot participate, in my view, are illegal hearings, except in exceptional circumstances, as in the present atmosphere of a pandemic, where adequate technology is not yet available,” she said.

Live streaming of hearings

New Delhi-based advocate Nandita Rao also asserted that an open court system is the “only safeguard against judicial arbitrariness and securing public confidence in the principle of equality before the law”.

She added that the exceptional circumstances under which open courts can be avoided are the ones that laws already provide for, like in cases of rape, where the identity of the survivor might have to be protected.

“The statutory procedure codes both on the criminal side and on the civil side mandate hearing in the open court and only in exceptional cases such as rape, can ‘in camera’ proceedings be conducted,” she told ThePrint.

“While use of technology may be necessary in these circumstances, it cannot compromise the open court principle,” she added.

Rao called it “unfortunate” that video conference hearings were taking place despite the fact that the propriety of live streaming court proceedings had been upheld by the court in 2018.

She was referring to the judgment in Swapnil Tripathi v Supreme Court of India, in which the Supreme Court authorised live streaming of court proceedings. In the judgment, Justice D.Y. Chandrachud had famously remarked that “sunlight is the best disinfectant”. Chandrachud now heads the e-committee of the Supreme Court.