The hybrid mode of hearing cases is not working, the Supreme Court observed on Friday and said that normalcy has to return and courts have to function physically as virtual hearing of cases can't become a norm.
"Sitting here in the court and looking at the screens is not giving us happiness," said a bench comprising Justices L Nageswara Rao and B R Gavai.
The bench said it wants the courts to open for the public and justice accessible for all the citizens.
"We have tried hybrid mode, it's not working. People are not coming to the courts. Normalcy has to return and the courts have to function physically," it said.
The top court, which issued notice in the matter, was hearing a plea filed by NGO National Federation of Societies for Fast Justice and eminent citizens like Julio Ribeiro, Shailesh R Gandhi, seeking to declare virtual court hearing as a fundamental right for the litigants.
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The bench asked the petitioners to submit the suggestions and said it would consider on the next date after four weeks as to how this can be taken up.
At the outset, senior advocate Monoj Swarup, appearing for the petitioners, submitted that hybrid mode be kept open as a part for access to justice for all citizens.
The bench said, "Have you seen the standard operating procedure (SOP) issued by us (SC) last night? We have to set aside the SOP then."
Swarup said this petition is on behalf of citizens who are coming to the court.
The bench said that these distinguished citizens should be told about fundamental principles of open court and open justice.
"We want the courts to be open for the public and justice to be accessible. There are provisions in CrPC and IPC that justice should be open. It is one thing to say that there should be telecast of court proceedings and it is another thing to say that once we get rid of COVID-19, this institution should be closed down because virtual hearing is a fundamental right of citizens which means people need not come to the court.
"For the past two months we have issued SOPs and made it optional. We have not seen one advocate in court on most of the days. Because if people have the option people are very comfortable in their offices," the apex court said.
Swarup submitted that he was not speaking from the lawyers point of view and appearing on behalf of citizens.
"I am standing for all the citizens, Please don't close down everything. Please keep a happy option of hybrid mode," he said.
The apex court said that virtual hearing becomes the norm then that would mean that the building in which judges are sitting in right now should be closed.
"You are saying that judges should sit in the court room and the lawyers can argue from Mussoorie, Mukteshwar, Goa and London, New York. For 70 years we all have understood the courts to be functioning physically. In view of unprecedented pandemic we thought courts should continue as access to justice can't be denied to the citizens. That's why we have been working virtually.
" But this can't become a norm where citizens are saying that we have have a right o virtual hearing. In any event , their rights would be protected. If the judgement of this court is implemented and there is a telecast of the proceedings those fears are allayed .Citizens right to continue virtual hearing does not appear o be reasonable. They want access to justice. Access to justice is sitting in their hometowns and watching the proceedings," the bench said.
Swarup argued that there is another dimension, what if the citizen wants to access the justice himself and wants to address the court in person?
The apex court then asked ,"In How many parties in person are addressing this court. We have one or two persons in month."
Swarup said that by adopting the virtual hearing, the citizen gets justice at much lower cost.
"There are seven judgments from the last few years that indicate to this effect. Those who are in remote areas who cannot come to the court, and poverty stricken will have access," he said.
The top court if the senior lawyer has any data with regard to his submissions.
"Have you collected any data to this effect, that how many people from such areas come to the Supreme Court? You have been practising here for so many years how many cases from remote areas have come to the court.
"You know how difficult it is for a citizen to reach the Supreme Court. If we accept what the petitioners are saying it would be a death knell for the existence of the physical courts," the court said.
Swarup reiterated that he was not submitting that physical hearing should stop.
I am just saying please keep hybrid hearing open, he said.
Elaborating on the problems of the hybrid mode, the bench said, "Let us assume you are in a court arguing a matter and its not as if you have only case. When the second comes in a different court for virtual hearing where are you going to argue, outside in the verandah from your mobile phone.
The apex court said that there are so many difficulties in hybrid mode of hearing.
"We tried this where one lawyer is arguing in court, one from his office. Even after one year we are not very sure how this system is working. There are problems from our side and the lawyers. We have to get back to the traditional method. We are all missing you so much. Sitting here in the court and looking at the screens is not giving us happiness," the bench said.
The top court said that when a lawyer is present physically in the court and he makes submissions looking into our eyes, that is more effective.
"We are really in a quandary unable to decide as to how physical hearing will start. Because we have tried Hybrid but its not working, people are not coming. Normalcy has to return and the courts have to function. You submit your suggestions on the next date as to how this can be taken up and we'll see," the bench said.