It has been reported that over 500 lawyers of the Supreme Court Bar Association have sent a letter to you to resume physical hearings along with Virtual Hearings. However, it is evident from the body of the letter that it is a plea against Virtual hearings. This would be a regressive move. The E-Committee of the Supreme Court has also done great work to make Virtual courts with only electronic filings a reality.
The Supreme Court and all the High Courts have been conducting Virtual Hearings since March 2019 fairly successfully. As you have mentioned the High Courts of Madras and Rajasthan had to close down after the resumption of physical hearings.
The possibilities and advantages of Virtual hearings have come to light because of the Supreme Court's decision to conduct judicial work by Virtual hearings. However,- partly due to the lack of knowledge and some hiccups,- many courts across the nation conducted their work for only two to three days a week. Many subordinate courts did not work for a considerable period of time. The result already is a looming disaster before the judicial system. The total pending cases at the beginning of 2006 were 292 lakh and the pending cases at the beginning of 2020 were 346 lakh. Thus in 14 years, the increase in backlog was 54 lakh cases which was a huge burden for the judicial system. (Data has been taken from the Supreme Court's publication on the website). According to the NJDG website at the close of 2020 was 423 lacs. Thus there is an increase in pending cases of 77 lacs cases in the year 2020 alone! With nobody being sure about how long the pandemic will last it appears that this may become a huge calamity for the nation.
The Supreme Court in the 1979 case of Hussainara Khatoon v Home Secretary, State of Bihar held that an individual had a fundamental right to a speedy trial under Article 21 of the Indian Constitution. A delay in disposal of cases, in such a situation, amounts to a denial of this fundamental right. It is for this reason that the Supreme Court recognized, in the case of All India Judges' Association v. Union of India, that there is a constitutional obligation of the Court to ensure that the backlog of cases is decreased and efforts are made to increase the disposal of cases.
Immediate switch to Virtual Courts as the norm with physical hearings when necessary may be able to alleviate this situation. Incidentally, as a former Central Information Commissioner, I have run a paperless operation and the CIC has been conducting virtual hearings routinely for over a decade. Please consider directing all courts to function in the virtual mode immediately. The E-Committee of the Supreme Court has ensured that all courts are equipped for virtual working.
The advantages of virtual courts are well known. Lawyers and litigants need not travel distances to appear in courts. Thus justice delivery would become more efficient, faster, and less costly. Lawyers and litigants would waste less time and a lawyer from a small town could appear in various courts in different places and courts could be smaller and yet not crowded. The Supreme Court Bar Association has basically argued against Virtual Courts on six points on which I would like to deal with:
1. Network connectivity issues;
My Response: These are being overstated. Boardroom meetings, Supreme Court and High Court hearings and thousands of webinars are being held every day. The Prime Minister is meeting Chief Ministers virtually.
2. No proper management by the Registry when it comes to virtual hearings;
My Response: This is an administrative issue and is not connected with Virtual Hearings.
3. No response to the calls by the dealing officers when it comes to mentioning;
My Response: This is an administrative issue and has no connection with Virtual Hearings.
4. Dismissing of mentioning of urgent matters by mentioning bench without providing any reason.
My Response: This happens even during physical hearings and SLPs, and has nothing to do with virtual hearings
5. Over 50% of young practitioners have been constrained to leave Delhi as they are unable to meet living expenses.
My Response: They could work from their own villages or towns without the expenses of a large city if allowed to appear Virtually. They would be closer to their families and friends with reduced expenses.
6. Members staying in Delhi NCR, and practising before this Hon'ble Court has a huge effect on their earnings due to which, either they have to depend on their family or on odd jobs.
My Response: This should be an argument for Virtual Courts.
One other argument which is advanced is that lawyers and litigants who are very poor do not have the hardware and facilities. A tablet or mobile phone is available for around Rs. 10000 and an annual fee of ₹2500 gives access to one year's data and telephones. Every lawyer and most litigants can afford this. The letter also mentions a lack of technical knowledge. A four-hour training can easily correct this. As far as litigants are concerned there are computers with internet connectivity in numerous Gram Panchayats with IT trained person. Maharashtra has 27920 such centres spread all over and litigants could use these. Besides, there are Citizen Service centres. This is true of other States as well.
Covid has been a traumatic experience for the world. It could lead to a broken Judicial delivery system. If the Courts adopt the Virtual Court system, it may lead to a better rule of law for the nation. With humility I beg of you to treat this as a suo moto Public Interest litigation to direct all the courts in India to ensure:
1. All Courts to offer the facility of Virtual appearances. In some cases, physical hearings may be held or accepted. It could be left to the litigant and lawyer to decide if they wished to make a physical appearance.
2. All Courts not to ask for any paper petitions and submissions but only take electronic petitions and submissions. This would lead to a saving of about Rs. 6000 crores worth of paper and save over 6000 trees each year.
3. Both these measures must be continued even when the COVID threat does not exist.
If the Supreme Court gives these directions to all courts it would have transformed our judicial system to provide a proper rule of law for our nation. The Supreme Court would have converted adversity into an opportunity. This letter is only seeking implementation of the Supreme Court's E-Committee. The Supreme Court certainly has the authority.
Thanking you in anticipation
Former Central Information Commissioner