SC notice to SCBA, BCI, others over plea seeking stay of U'khand HC order terminating virtual hearings

The Supreme Court on Monday issued notice to the SCBA (Supreme Court Bar Association) and BCI (Bar Council of India) and others and sought a detailed response from the bodies to a petition seeking an immediate stay of the administrative order passed by the Registrar General of the Uttarakhand High Court terminating the functioning of virtual courts there.

The order of the Registrar General of the Uttarakhand High Court terminating the functioning of virtual courts thereby compelling all the lawyers to conduct their cases through physical mode only has forced the petitioner Association of All Indian Jurists And Advocates (AAIJAA), representing around 5,000 lawyers across the country to move to the Supreme Court and seeking a stay of the order.

"The BCI and SCBA are impleaded as parties. We issue notice, and we will wait till their response and then we will hear the case," said a three-judge bench led by Justice L Nageswara Rao, and comprising Justices B R Gavai and B V Nagarathna and fixed the matter for further hearing after four weeks.

The petition, filed before the top court, was drawn and settled by a lawyer, Siddharth R Gupta, and has been filed through AOR (Advocate On Record) Shriram Parakkat, and journalist and online legal Correspondent, Sparsh Upadhaya.

The petition, a copy accessed by ANI, filed before the apex court, sought a direction to declare virtual court hearing as a fundamental right, and continue virtual hearings in all the high courts.

Senior lawyer, Siddharth Luthra, appearing for the petitioner, told the Supreme Court that this matter pertains to restriction on the right of the litigants. The hybrid option should not be done away with. The lawyers and litigants will save a lot of cost on travel and also reduce the carbon footprint.

Justice Gavai, one of the judges in the bench of the top court, said that in the recent felicitation function organised by the BCI in the honour of Chief Justice of India N V Ramana, the Chairman had said that a lot of lawyers have been suffering.

To this, Luthra replied, yes, that is because cases are not being taken up.

During the course of the hearing today, Justice Rao questioned Luthra, that if lawyers and senior lawyers will be missing in courts physically then how would young lawyers learn?

"The performance of lawyers is also being affected, if lawyers won't appear in courts physically, Justice Rao observed.

Luthra replied that hybrid hearings should continue, and it should not be discontinued for a lot of reasons.

The lawyer for the Uttrakhand government, Mukesh Giri, sought four weeks time from the Supreme Court to file his reply in the case. The Bench of the apex court allowed the prayer.

Advocate, Pradeep Kumar Yadav, who appeared for caveator, Vishal Thakre, said that he was opposing the petition and sought that the physical hearings must continue.

The plea specifically challenged the decision of the Uttarakhand High Court to revert to full physical functioning from August 24 to the exclusion of virtual mode of hearing cases.

The petition, filed by AAIJAA, raised an important plea of declaration of 'access to virtual courts' by both the counsel as well as the client as a Fundamental Right guaranteed under Part III of the Constitution of India, which cannot be terminated casually and cursorily by the High Court through an administrative order.

The petition which has also impleaded Registrar Generals of three High Courts of the country -- Madhya Pradesh High Court, Bombay High Court and the Kerala High Court -- pleaded that the SOPs on paper though permit virtual hearings, but many courtrooms are compelling and coercing lawyers to appear only physically by not conveniently providing joining links virtually for attending their cases through a virtual mode in the hybrid model adopted by them, the petition said.

The petition also said that post-Covid- 19 pandemic, after commissioning and installation of the entire virtual court infrastructure in the Constitutional Courts, (in the High Courts of the country), if there is any denial of access to the facility of conducting cases through virtual mode, then this is a denial of Fundamental Rights under Article 19 read with 21 of the Constitution of India.

It thus sought a direction restraining the Registrar Generals of all the four High Courts from denying access to virtual courts through Video Conferencing to any lawyer intending to opt for the same only on the ground that physical hearing in the concerned High Court has commenced and the said mode of physical hearing must be preferred, the petition said.

The Uttarakhand High Court recently through its Registrar General passed an administrative Order which read as, the Court is pleased to direct that the Court will resume normal judicial work only through the physical mode from August 24, 2021, and no request for a virtual hearing will be entertained by the High Court.

The petition further said that the Preamble of the Constitution of India, read with Article 38 and Article 39 under the Directive Principles of State Policy of (Part IV of the Constitution of India) enjoin the Constitutional Courts of the country to make justice accessible, affordable and economic in nature where everybody can have easy and convenient access to the same, the petition said.

The petitioners have thus pleaded that access to virtual courts for dispensation of justice by the counsel or the client is an essential facet of Fundamental Rights guaranteed under the Constitution of India and thus cannot be lightly denied to the lawyers.

The journalists in turn have pleaded that the denial to virtual access of courts, in fact, has the effect of denying them the Freedom of Speech and Expression under Article 19(1)(a) as they would be denied their right to report the proceedings on a real-time and live basis, the petition said.

Referring to the judgment of M R Vijay Bhaskar against the Chief Election Commissioner (CEC), the journalists have claimed that if access to virtual courts is wiped out, then exercise of fundamental Rights would become impossible, the petition filed before the Supreme Court said.

( With inputs from ANI )