The Supreme Court is likely to continue indefinitely with its virtual hearings, through the Covid-19 crisis and perhaps even beyond, ignoring criticism from Bar associations that the practice is detrimental to transparency and fairness, highly placed apex court sources said.
They told The Telegraph that though the current system of hearings by videoconferencing owes to the coronavirus threat, it’s not impossible for such virtual hearings to become the norm even in normal times in future.
Such a step would avert the overcrowding that Indian courts tend to witness, save the precious time of judges, advocates and litigants, and cut the expenditure the courts incur in organising open-court hearings, they said.
The Bar Council of India — the regulatory body for advocates — the Supreme Court Bar Association, the NGO Campaign for Judicial Accountability and others have expressed concern at the virtual hearings, being held since March 23 by the Supreme Court and high courts.
They have argued these hearings by videoconference are a threat to the ideals of fairness, transparency and the right to public hearing as entailed by the concept of “open court”. The implication is that an “open court” presupposes a physical courtroom with the parties bodily present.
However, sources said that Chief Justice of India Sharad S. Bobde was keen that the virtual hearings be gradually replicated during normal times too.
“These challenges provide an opportunity for the judiciary to move on to the next era of hearings through electronic means, enabling citizens to access justice without physical presence in court,” a source said.
“Court premises are crowded places and the Supreme Court of India is no exception....”
The sources denied that hearings by videoconference would affect transparency and fairness. They highlighted that way back in 2003, when such technology was at a fledgling stage, the Supreme Court had held in State of Maharashtra v Prafulla Desai that recording of evidence by a court through videoconferencing should be considered “as per procedure established by law”.
On the strength of that judgment, several subordinate courts had even during normal times recorded evidence through videoconferencing when the circumstances demanded it, they said.
“Even before the pandemic, the public’s presence at hearings was often regulated to avert inconvenience to the Bar members or to minimise security threats,” a source stressed.
“Some accused are produced before trial courts through videoconferencing from the jails,” he added.
Justice Bobde is also relying on a nine-judge ruling in the Naresh Shridhar Mirajkar case of 1966, the sources said.
The verdict had rejected the argument that in-camera proceedings were unconstitutional and ruled: “If the principle that all trials before courts must be held in public was treated as inflexible... cases may arise where by following the principle, justice itself may be defeated.”The judgment said the higher courts had an “inherent jurisdiction to hold a trial ‘in-camera’ if the ends of justice clearly and necessarily require the adoption of such a course”.