COVID Coverage: Court’s Functioning

Since mid-March the Supreme Court of India has been operating at a reduced capacity, to help prevent the spread of COVID-19. Nevertheless, with the aid of technology, it has continued to hear urgent matters, while still safeguarding the health of judges, advocates, litigants and registry officials. It has relied heavily on e-filing and video-conferencing to continue to operate. As such, the pandemic has served as an opportunity to test the robustness of its digital infrastructure.

In this post, SC Observer captures key administrative developments in chronological order:

Court announces measures to avoid the spread of COVID-19

March 13th 2020

On Friday March 13th, the Secretary-General of the Supreme Court issued a notification declaring that the Court will function at a reduced capacity from March 16th onwards. This was in view of the advisories issued by the Government of India and the World Health Organization against mass public gatherings to avoid the spread of novel coronavirus (COVID-19).

The Court pruned its operations at two levels. First, the Court is now only taking up ‘urgent matters’. Second, entry to the courtroom is restricted to a select group of people. Thus, only those lawyers who are ‘acting’ in the matter – arguing or making oral submissions or assisting such counsels – along with one litigant are being allowed inside.

Source: Bar and Bench

March 14th 2020

Soon thereafter, on March 14th, the Assistant Registrar came up with a slew of measures meant to limit crowding of the Court. For instance, lawyers and litigants can request the Registry to not list their matters till such time the pandemic related restrictions are eased.

Another measure which is being mulled by the Court is to encourage the electronic filing of documents and also participate in proceedings via videoconferencing. Nevertheless, no official notification has been issued in this regard till date.

Other measures put in place include the closing down of the cafeterias, suspension of guided tours, sanitization of common areas etc.

March 22nd 2020

On March 22nd, the Court decided to reduce its functioning even further. On the same day, the Court also instituted a bench to hear urgent matters. These decisions come amid the deployment of more stringent measures by the executive to tackle COVID-19.

Two important notifications were issued by the Court on Sunday March 22nd. The first one was issued with a view to further reduce the number of benches hearing cases. Thus, on March 22nd, only two benches will take up matters. The first one presided over by the Chief Justice and L Nageswara Rao and Surya Kant JJ will hear eight cases starting from 11 am. Once this bench finishes hearing, another bench comprising the Chief Justice and DY Chandrachud  J will assemble and hear two more matters. This bench though will not hear the lawyers in person. Instead, the lawyers will make their submissions through the video conferencing facility arranged within the Court premises.

Following the decision to cut down on the number of benches, the benches comprising Arun Mishra, Deepak Gupta and MR Shah JJ, as well as the one consisting of SK Kaul, KM Joseph and Sanjiv Khanna JJ will no longer hear cases, as they were originally expected to.

As per the second notification, starting March 25th, a two-judge bench will be available to hear extremely urgent matters. Whether or not a matter is urgent enough to be heard by this Bench will be decided by the Presiding Judge of the Bench. The Presiding Judge will make this decision based on a written submission by the lawyers who wish to have their matters heard. In their submission, lawyers will have to justify the urgency.

March 23rd 2020

In its third major judicial intervention, the Court expanded the time period for filing cases, before all courts/tribunals. Typically, if an individual/entity has a grievance/cause over which he wants to approach a court/tribunal for relief, the same is to be done within a prescribed time frame. Such a time frame is referred to as the period of ‘limitation’. With this latest order, the clock on such time period has been paused with effect from 15 March, till such time the Court passes a further direction.

Court to hear only extremely urgent cases

March 23rd 2020

On March 23rd, the Court issued a new circular, further reducing its functioning. In effect Benches will only be constituted to hear matters of “extreme urgency”. Here’s a breakdown of the key take-aways:

• All advocates have been strongly advised against entering the Court premises, including those who have chambers at the Supreme Court. The Presidents and Secretaries of the Supreme Court Bar Association (SCBA) and Supreme Court Advocates On-Record Association (SCAORA) can authorise the entry of advocates into the High-Security Zone by sending a communication to the Registrar a day in advance. This communication must clearly state the purpose of the visit.
• Benches will only be constituted to hear matters of extreme urgency. To have a matter heard, the Advocate-on-Record (or party-in-person) must file an application via e-mail to mention@sci.nic.in by 2 pm the preceding day. The application must include a paragraph “giving consent that the matter may be taken up through the Video-Conferencing mode”. AoRs/Parties enjoy the choice as to whether they would like to do the video conference from their device or via the video conferencing facility at the Court.
• Any cases that are selected for the hearing will be listed on the online cause-list the day before in the evening. Advocates may make urgent oral mentions on the day of proceedings between 10.30 and 11 am.
• Only 3 persons from the media will be allowed in the Court’s video conferencing room.
• The Registrar will only remain in operation with a skeletal staff.
  

  Source: SC Observer

Court to take up more matters

April 18th 2020

Since the imposition of the lockdown, the Supreme Court has only been taking up matters of “extreme urgency”. In what appears to be a move away from this practice, on April 18th, the Court notified that “short category matters, death penalty matters and matters related to family law” may be listed for hearing through video conferencing mode. Parties to such matters have to intimate their willingness to have their cases taken up through video conferencing. Once that is done, the matters will be listed subject to the availability of the concerned benches and the approval of the Chief Justice.

In another notification on the same day, the Court also announced that it will take up Curative and Review Petitions ready for hearing by “Circulation in-Chambers”. Circulation in-chambers is a process commonly used in the case of review and curative petitions, whereby judges first determine whether there is any merit in hearing the matter in open court.

Court defers summer vacation

May 15th 2020

On May 15th, the Supreme Court registry announced that the summer vacation, originally scheduled from May 18th-June 19th, stands deferred. As per the notification, a request to this effect was made by the members of the Bar. A Full Court Reference – the meeting of all sitting judges – too advised in favour of deferring the vacation. Based on these suggestions, the Chief Justice directed that the vacation be adjourned to a later date. The notification though does not mention when the Court will take the vacation.

Although the notification does not explicitly mention it, it is believed that the decision was made to at least partially offset the lag caused by COVID-19 restrictions.

June 2nd 2020

In a notice issued on Tuesday June 2nd the Supreme Court announced it was open to allowing counsels and parties-in-person to physically appear before judges. Taking note of the requests it had received from ‘various quarters’, the Court suggested it would be possible to resume physical hearings, as long as all social distancing norms were observed.

However, it stressed that for each hearing, it would require the consent of each advocate and party-in-person, before it could consider having a physical hearing.

Advocates and parties who seek to give their consent to make physical appearances, can e-mail: consent.list@sci.nic.in.

6th July 2020

Two days before re-opening, the Court published its latest Standard Operating Procedure (SOP) on July 4th. Given that COVID-19 is surging,  Bobde CJI has decided that the Court will continue to hear cases via video-conference.

While the Court isn’t yet returning to physical hearings, it does appear ready to hear a wider range of cases. Till now, it was largely only hearing cases which it considered ‘extremely urgent’. However, in this latest SOP, it doesn’t explicitly place any restrictions on the types of cases that it will hear. In fact, under the heading “Categories of matters to be taken up for hearing”, it implies that it will hear all cases – regular and miscellaneous.

Other than this, the latest SOP remains in large part the same as previous months’ SOPs. The schedule for publishing the cause-list (lists which cases will be heard on a given day) and instructions for joining video-conferencing remain the same. Further, the process for mentioning (requesting to have a case heard urgently) and filing haven’t changed. Advocates must make use of e-mail and e-filing, as much as possible.

Unfortunately, virtual oral arguments will continue to be inaccessible to the public. Links to the video-stream are only shared with the arguing counsels (and litigants) and broadcasting of the stream is ‘expressibly prohibited’. Nevertheless, the Court is committed to ensuring oral arguments maintain their public character. A limited number of journalists are allowed to attend the Court’s physical video-conferencing room, to report on cases.

For now, it appears that the Court will continue to only operate virtually for the rest of July. Whether it will be willing to hear major pending Constitution Bench cases over video-conference, remains to be seen.

July 10th 2020

On Friday July 10th, the Supreme Court issued a new circular: ‘henceforth the interaction of Party-in-Person with Registrar…may also be done through Video Conferencing’. With COVID on the rise in New Delhi, the Court is keen to prevent any unnecessary physical contact between people. This new circular aims to ensure that parties appearing for themselves (a ‘party-in-person’) do not have to physically attend hearings before the Office of the Registrar.

The following day, on July 11th, the Court updated its Standard Operating Procedure (SOP), in order to clarify the precise procedure for video conferencing with the Registrar. Much like the latest general SOP, this July 11th SOP directs parties to use the VIDYO platform to video conference. All video conferences are securely hosted on the servers of the National Data Centre, run by the Government’s National Informatics Centre.

July 22nd 2020

In a brief hearing revolving around the financial difficulties that advocates are facing due to COVID-19,  Bobde CJI indicated that the Supreme Court will not resume physical hearings this month. He observed that the prevailing medical opinion is against resuming physical hearings. While he recognised the financial burden this places on legal professionals, he expressed that it may be too risky to fully re-open courts at this stage during the pandemic.

Beyond the issue of physical hearings, the case has important implications for the livelihood of advocates. Today, the Chief Justice’s Bench took suo motu cognisance of the fact that due to COVID-19 restrictions, many advocates are finding themselves without sources of income. It issued notice to all recognised Supreme Court and High Court advocates associations, such as the Supreme Court Bar Association (SCBA).

Bobde CJI stated that he wanted to explore amending rules, such as those of the SCBA, that mandate that advocates cannot seek alternate means of employment. Further, he expressed the need to explore whether funds or loans could be made available to low-income advocates. He asked why bar councils had yet to create relief funds for advocates who are in financial distress.

The Bench listed the case two weeks from now. It also tagged a Public Interest Litigation (PIL) by the Bar Council of India, which is praying for 3 lakh loans to be made available to lawyers that are financial distress.

Court mandates advocates file soft-copies of petitions

July 28th 2020

In a significant move, the Court issued circular requiring advocates to file soft-copies of petitions and accompanying documents, if they opt to file in-person at the Registry. Prior to this, even though e-filing was available to advocates, they could opt to do all filing in-person at the Registrar’s filing counter. Even after COVID shut down most of Delhi, the Court still allowed advocates to file entirely in-person. While this latest circular doesn’t prohibit physical filing, it nevertheless is a step towards further digitisation.

Ever since the mid-2000s, the Indian judiciary has been working towards digitization with the aim of achieving greater efficiency and transparency. In line with the National e-Governance Plan, the Supreme Court formed an e-Committee to strategize about how to introduce various technologies into the legal system. One very important innovation has been the introduction of electronic filing. Unfortunately, however, despite the Supreme Court’s e-filing portal being operational for some time now, relatively few advocates make use of it.

Due to the pandemic, e-filing has become much more popular with advocates. And now with this latest circular, the Court is further nudging advocates to make use of the system. It even has reduced the cost of printing documents, which were filed via the Court’s e-filing portal. It used to be Rs. 1.50 per page – now it’s only 0.75 per page. This is a substantial cut, considering that petitions and accompanying documents run into the hundreds of pages and that advocates must print multiple copies of each document. It’s looking more and more likely that, once we emerge from the COVID-19 crisis, the Court will have done away with some of its antiquated case management systems.

Court allows limited physical hearings

August 30th 2020

On an experimental basis, the Court decided to open up its premises for very limited physical hearings. In a brief two-page notification the Court requires counsels and clerks seeking physical hearings to obtain a special hearing pass and follow COVID specific sanitary and health guidelines.

February 1st 2021

Three more Virtual Courts would start functioning. This would bring the number from 15 Virtual Courts to 18.

Hybrid Physical Hearings Commence

March 6th 2021

By a circular issued on March 6th 2021, the Court announced that it would begin hybrid physical hearings on a trial basis. If the Bench allows, from March 15th onwards, the option for physical hearings will be available on Tuesdays, Wednesdays and Thursdays.

There is a limit of 20 people in the courtroom and only one arguing counsel, one Advocate-on-Record and one clerk is permitted from each party. It is up to the parties’ legal teams to choose whether to appear physically or virtually.

March 14th 2021

The Court allowed mentioning of matters physically from 10:30am to 12:00pm on Monday to Friday. This would be in addition to the procedure of online mentioning through the email, and video conferencing, which would continue as the only means of mentioning for the afternoon.

E-Copying Module

March 23rd 2021

The Court launched the ‘e-Copying Module’ on its website. This allows stakeholders to get a Certified copy of any official document online. Earlier, parties had to physically go to the Supreme Court Registry. The module provides both a certified soft copy and the option to receive a hard copy by post.

April 13th -May 1st: Court Reduces Functioning During Second Wave

The Court enacts additional guidelines for safety, scales back its function and advances its summer vacation.

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29th August- Limited Return to Physical Hearings Announced

The Court announced that it would resume physical hearings for some cases. It gave advocates the option to continue hearings virtually.

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20th October- Physical Hearings on Wednesdays and Thursdays

In August and September, the Supreme Court received several requests from Bar Associations to open the court for physical hearings. In light of these requests the SC will resume physical hearings with the option of hybrid hearing on 20th October. 

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January 2nd – February 7th 2022