Case BriefsSupreme Court

[Note: This report is a detailed analysis of Supreme Court’s judgment in Madras Bar Association v. Union of India[1]. To read the guidelines and directions issued by the Court, click here.]

Supreme Court: The 3-judge bench of L. Nageswara Rao*, Hemant Gupta and S. Ravindra Bhat has issued extensive directions in relating to selection, appointment, tenure, conditions of service, etc. relating to various tribunals, 19 in number, thereby calling for certain modifications to the Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020

The Supreme Court was once again, within the span of a year, called upon to decide the issue at hand. Last year, the Constitution Bench in Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1 had held that the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules, 2017, as a whole was ultra vires.

“That the judicial system and this Court in particular has to live these déjà vu moments, time and again (exemplified by no less than four constitution bench judgments) in the last 8 years, speaks profound volumes about the constancy of other branches of governance, in their insistence regarding these issues.”

Here is the explainer on the directions issued by the Court:

NATIONAL TRIBUNALS COMMISSION

“We have noticed a disturbing trend of the Government not implementing the directions issued by this Court. To ensure that the Tribunals should not function as another department under the control of the executive, repeated directions have been issued which have gone unheeded forcing the Petitioner to approach this Court time and again. It is high time that we put an end to this practice.”

Noticing that the Tribunals are not free from the Executive control and that they are not perceived to be independent judicial bodies, the Court said that there was an imperative need to ensure that the Tribunals discharge the judicial functions without any interference of the Executive whether directly or indirectly.

Hence,

“An independent body headed by a retired Judge of the Supreme Court supervising the appointments and the functioning of the Tribunals apart from being in control of any disciplinary proceedings against the Members would not only improve the functioning of the Tribunals but would also be in accordance with the principles of judicial independence.”

To stop the dependence of the Tribunals on their parent Departments for routing their requirements and to ensure speedy administrative decision making, as an interregnum measure, it was hence directed that there should be a separate “tribunals wing” established in the Ministry of Finance, Government of India to take up, deal with and finalize requirements of all the Tribunals till the National Tribunals Commission is established.

Read the directions here

SEARCH-CUM-SELECTION COMMITTEE

After it was brought to Court’s notice that the constitution of the Search-cum-Selection Committees as per 2020 Rules does not ensure judicial dominance, the Court made the following directions:

  • a casting vote will be given to the Chief Justice of India or his nominee as the Chairperson of the Search-cum-Selection Committee.
  • normally the Chairperson of the Tribunal would be a retired Judge of the Supreme Court or the Chief Justice of a High Court. However, there are certain Tribunals in which the Chairperson may not be a judicial member. In such Tribunals, the Search-cum-Selection Committee should have a retired Judge of the Supreme Court or a retired Chief Justice of a High Court nominated by the Chief Justice of India in place of the Chairperson of the Tribunal.
  • the 2020 Rules would be amended to reflect that whenever the re-appointment of the Chairman or Chairperson or President of a Tribunal is considered by the Search-cum-Selection Committee, the Chairman or Chairperson or President of the Tribunal shall be replaced by a retired Judge of the Supreme Court or a retired Chief Justice of a High Court nominated by the Chief Justice of India.
  • Secretary to the sponsoring or parent Department shall serve as the Member-Secretary/Convener to the Search-cum-Selection Committee and shall function in the Search-cum-Selection Committee without a vote.
  • Rule 4 (2) of the Rules that postulates that a panel of two or three persons shall be recommended by the Search-cum-Selection Committee from which the appointments to the posts of Chairperson or members of the Tribunal shall be made by the Central Government, shall be amended and till so amended, that it be read as empowering the Search-cum-Selection Committee to recommend the name of only one person for each post. Taking note of the requirement of the reports of the selected candidates from the Intelligence Bureau, another suitable person can be selected by the Search-cum-Selection Committee and placed in the waiting list.

Read the directions here

TERM OF OFFICE

At present Rule 9(1) permits a Chairman, Chairperson or President of the Tribunal to continue till 70 years which is in conformity with Parliamentary mandate in Section 184 of the Finance Act. However, Rule 9(2) provides that Vice Chairman and other members shall hold office till they attain 65 years.

Accepting Amicus Curiae’s submission that under the 2020 Rules, the Vice Chairman, Vice-Chairperson or Vice-President or members in almost all the Tribunals will have only a short tenure of less than three years if the maximum age is 65 years, the Court directed the Government to amend Rule 9 (1) of the 2020 Rules by making the term of Chairman, Chairperson or President as five years or till they attain 70 years, whichever is earlier and other members dealt with in Rule 9(2) as five years or till they attain 67 years, whichever is earlier.

Section 184 of the Finance Act, 2017 provides for reappointment of Chairpersons, Vice-Chairpersons and members of the Tribunals on completion of their tenure. There is no mention of reappointment in the 2020 Rules. Hence, Reappointment for at least one term shall be provided to the persons who are appointed to the Tribunals at a young age by giving preference to the service rendered by them.

Read the directions here

HOUSE RENT ALLOWANCE

Noticing that lack of housing in Delhi has been one of the reasons for retired Judges of the High Courts and the Supreme Court to not accept appointments to Tribunals, the Court directed the Government of India to make serious efforts to provide suitable housing to the Chairperson and the members of the Tribunals and in case providing housing is not possible, to enhance the house rent allowance to Rs.1,25,000/- for members of Tribunals and Rs.1,50,000/- for the Chairman or Chairperson or President and Vice Chairman or Vice Chairperson or Vice President of Tribunals.

“… an option should be given to the Chairperson and the members of the Tribunals to either apply for housing accommodation to be provided by the Government of India as per the existing rules or to accept the enhanced house rent allowance. This direction shall be effective from 01.01.2021.”

Read the directions here

ADVOCATES AS JUDICIAL MEMBERS

While the Attorney General suggested that an advocate who has 25 years of experience should be considered for appointment as a Judicial member, the Amicus Curiae suggested that it should be 15 years.

Considering both the suggestions, the Court said,

“As the qualification for an advocate of a High Court for appointment as a Judge of a High Court is only 10 years, we are of the opinion that the experience at the bar should be on the same lines for being considered for appointment as a judicial member of a Tribunal.”

However, it is left open to the Search-cum-Selection Committee to take into account in the experience of the Advocates at the bar and the specialization of the Advocates in the relevant branch of law while considering them for appointment as judicial members.

Read the directions here

ELIGIBILITY OF MEMBERS OF INDIAN LEGAL SERVICE

The Court directed that the members of Indian Legal Service shall be entitled to be considered for appointment as a judicial member subject to their fulfilling the other criteria which advocates are subjected to. In addition, the nature of work done by the members of the Indian Legal Service and their specialization in the relevant branches of law shall be considered by the Search-cum-Selection Committee while evaluating their candidature.

Read the directions here

IMPORTANCE OF APPOINTMENT OF COMPETENT AND YOUNG LAWYERS AND TECHNICAL MEMBERS

Tribunals discharge a judicial role, and with respect to matters entrusted to them, the jurisdiction of civil courts is usually barred. Therefore, wherever legal expertise in the particular domain is implicated, it would be natural that advocates with experience in the same, or ancillary field would provide the “catchment” for consideration for membership. This is also the case with selection of technical members, who would have expertise in the scientific or technical, or wherever required, policy background.

Younger advocates who are around 45 years old bring in fresh perspectives. Many states induct lawyers just after 7 years of practice directly as District Judges.

“If the justice delivery system by tribunals is to be independent and vibrant, absorbing technological changes and rapid advances, it is essential that those practitioners with a certain vitality, energy and enthusiasm are inducted.”

25 years of practice even with a five-year degree holder, would mean that the minimum age of induction would be 48 years: it may be more, given the time taken to process recommendations. Therefore, a tenure without assured re-engagements would not be feasible. A younger lawyer, who may not be suitable to continue after one tenure (or is reluctant to continue), can still return, to the bar, than an older one, who may not be able to piece her life together again.

Read the directions here

REMOVAL OF MEMBERS

Rule 8 of the 2020 Rules provides the procedure for inquiry of misbehavior or incapacity of a member. According to the said Rule, the preliminary scrutiny of the complaint is done by the Central Government. If the Central Government finds that there are reasonable grounds for conducting an inquiry into the allegations made against a member in the complaint, it shall make a reference to the Search-cum-Selection Committee which shall conduct an inquiry and submit the report to the Central Government.

However, Amicus Curiae argued that there is no clarity in the Rules as to whether the reports submitted by the Search-cum-Selection Committee are binding on the Central Government. The Attorney General submitted that the preliminary scrutiny done by the Central Government, according to Rule 8 (1) is only for the purpose of weeding out frivolous complaints and that the recommendations made by the Search-cum-Selection Committee shall be implemented by the Central Government. The Court accepted the submissions of the learned Attorney General.

Read the directions here

TIME LIMIT FOR APPOINTMENT

“The very reason for constituting Tribunals is to supplement the functions of the High Courts and the other Courts and to ensure that the consumer of justice gets speedy redressal to his grievances. This would be defeated if the Tribunals do not function effectively.”

It was brought to Court’s notice that there are a large number of unfilled vacancies hampering the progress of the functioning of the Tribunals. The pendency of cases in the Tribunals is increasing mainly due to the lack of personnel in the Tribunals which is due to the delay in filling up the vacancies as and when they arise due to the retirement of the members.

The Court, hence, directed that the Government of India shall make the appointments to the Tribunals within three months after the Search-cum-Selection Committee completes the selection and makes its recommendations.

Read the directions here

RETROSPECTIVITY OF THE 2020 RULES

The Court rejected the submission of learned Attorney General that the 2020 Rules which replaced the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and Other Conditions of Service of Members) Rules, 2017 shall come into force with effect from 26.05.2017 which was the appointed day in accordance with the 2017 Rules and said,

“It is true that the 2017 Rules were brought into force from 26.05.2017 and Section 183 of the Finance Act provides for any appointment made after the appointed day shall be in accordance with the Rules made under Section 184 of the Finance Act, 2017. 2017 Rules which have come into force with effect from 26.05.2017 in accordance with Section 183 have been struck down by this Court. The 2020 Rules which came into force from the date of their publication in the Official Gazette, i.e. 12.02.2020, cannot be given retrospective effect.”

Further, the intention of Government of India to make the 2020 Rules prospective is very clear from the notification dated 12.02.2020. In any event, subordinate legislation cannot be given retrospective effect unless the parent statute specifically provides for the same.

The Court, however, clarified that all appointments made prior to the 2020 Rules which came into force on 12.02.2020 shall be governed by the parent Acts and Rules. Any appointment made after the 2020 Rules have come into force shall be in accordance with the 2020 Rules subject to the modifications directed in this judgment.

Read the directions here

In the petition that was filed by Madras Bar Association, the Court directed the Government to strictly adhere to the directions and not force the Petitioner-Madras Bar Association, which has been relentless in its efforts to ensure judicial independence of the Tribunals, to knock the doors of this Court again.

[Madras Bar Association v. Union of India, 2020 SCC OnLine SC 962, decided on 27.11.2020]


*Justice L. Nageswara Rao has penned this judgment.

[1] Writ Petition (C) No.804 of 2020, decided on 27.11.2020

Counsels heard:

Senior Advocate Arvind Datar, amicus curiae

Attorney General for India K.K. Venugopal,

Additional Solicitor General Balbir Singh and S.V. Raju,

Senior Advocates Mukul Rohtagi, C.A. Sundaram, Vikas Singh,. Anitha Shenoy, R. Balasubramanium, A.S. Chandhiok, Virender Ganda, M.S. Ganesh, Sidharth Luthra, C.S. Vaidyanathan, Guru Krishnakumar, Rakesh Kumar Khanna, Gautam Misra, P.S. Narasimha.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao*, Hemant Gupta and S. Ravindra Bhat has issued extensive directions in relating to selection, appointment, tenure, conditions of service, etc. relating to various tribunals, 19 in number, thereby calling for certain modifications to the Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020.

While the bench has upheld the validity of Tribunal Rules, 2020, here are the modifications and directions issued by the Court:

(i) The Union of India shall constitute a National Tribunals Commission which shall act as an independent body to supervise the appointments and functioning of Tribunals, as well as to conduct disciplinary proceedings against members of Tribunals and to take care of administrative and infrastructural needs of the Tribunals, in an appropriate manner.

Till the National Tribunals Commission is constituted, a separate wing in the Ministry of Finance, Government of India shall be established to cater to the requirements of the Tribunals.

(ii) Instead of the four-member Search-cum-Selection Committees comprising of the Chief Justice of India or his nominee, outgoing or sitting Chairman or Chairperson or President of the Tribunal and two Secretaries to the Government of India, the Search-cum-Selection Committees should comprise of the following members:

(a) The Chief Justice of India or his nominee—Chairperson (with a casting vote).

(b) The outgoing Chairman or Chairperson or President of the Tribunal in case of appointment of the Chairman or Chairperson or President of the Tribunal (or) the sitting Chairman or Chairperson or President of the Tribunal in case of appointment of other members of the Tribunal (or) a retired Judge of the Supreme Court of India or a retired Chief Justice of a High Court in case the Chairman or Chairperson or President of the Tribunal is not a Judicial member or if the Chairman or Chairperson or President of the Tribunal is seeking re-appointment—member;

(c) Secretary to the Ministry of Law and Justice, Government of India—member;

(d) Secretary to the Government of India from a department other than the parent or sponsoring department, nominated by the Cabinet Secretary—member;

(e) Secretary to the sponsoring or parent Ministry or Department—Member Secretary/Convener (without a vote).

Till amendments are carried out, the 2020 Rules shall be read in the manner indicated.

(iii) Rule 4(2) of the 2020 Rules shall be amended to provide that the Search-cum-Selection Committee shall recommend the name of one person for appointment to each post instead of a panel of two or three persons for appointment to each post. Another name may be recommended to be included in the waiting list.

(iv) The Chairpersons, Vice-Chairpersons and the members of the Tribunal shall hold office for a term of five years and shall be eligible for reappointment. Rule 9(2) of the 2020 Rules shall be amended to provide that the Vice-Chairman, Vice-Chairperson and Vice President and other members shall hold office till they attain the age of sixty-seven years.

(v) The Union of India shall make serious efforts to provide suitable housing to the Chairman or Chairperson or President and other members of the Tribunals. If providing housing is not possible, the Chairman or Chairperson or President and Vice-Chairman, Vice-Chairperson, Vice President of the Tribunals shall be paid Rs. 1,50,000/- per month as house rent allowance and Rs. 1,25,000/- per month for other members of the Tribunals from 01.01.2021.

(vi) Advocates with an experience of at least 10 years should be eligible for appointment as judicial members in the Tribunals. The experience of the Advocate at the bar and their specialization in the relevant branches of law is to be considered. They shall be entitled for reappointment for at least one term by giving preference to the service rendered by them for the Tribunals.

(vii) The members of the Indian Legal Service shall be eligible for appointment as judicial members in the Tribunals, provided that they fulfil the criteria applicable to advocates subject to suitability to be assessed by the Search-cum-Selection Committee on the basis of their experience and knowledge in the specialized branch of law.

(viii) Rule 8 of the 2020 Rules shall be amended to reflect that the recommendations of the Search-cum-Selection Committee in matters of disciplinary actions shall be final and shall be implemented by the Central Government.

(ix) The Union of India shall make appointments to Tribunals within three months from the date on which the Search-cum-Selection Committee completes the selection process and makes its recommendations.

(x) The 2020 Rules shall have prospective effect and will be applicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules.

(xi) Appointments made prior to the 2017 Rules are governed by the parent Acts and Rules which established the concerned Tribunals. Any appointments that were made after the 2020 Rules came into force i.e. on or after 12.02.2020 shall be governed by the 2020 Rules subject to the modifications as directed in this judgment.

(xii) Appointments made under the 2020 Rules till the date of this judgment, shall not be considered invalid, insofar as they conformed to the recommendations of the Search-cum-Selection Committees in terms of the 2020 Rules, as they stood before the modifications directed in this judgment. They are, in other words, saved and shall not be questioned.

(xiii) In case the Search-cum-Selection Committees have made recommendations after conducting selections in accordance with the 2020 Rules, appointments shall be made within three months from today and shall not be subject matter of challenge on the ground that they are not in accord with this judgment.

(xiv) The terms and conditions relating to salary, benefits, allowances, house rent allowance etc. shall be in accordance with the terms indicated in and directed by this judgment.

(xv) The Chairpersons, Vice Chairpersons and members of the Tribunals appointed prior to 12.02.2020 shall be governed by the parent statutes and Rules as per which they were appointed. The 2020 Rules shall be applicable with the modifications as directed to those who were appointed after 12.02.2020.

The Court has clarified that all appointments made prior to the 2020 Rules which came into force on 12.02.2020 shall be governed by the parent Acts and Rules. Any appointment made after the 2020 Rules have come into force shall be in accordance with the 2020 Rules subject to the modifications as directed.

In the petition that was filed by Madras Bar Association, the Court directed the Government to strictly adhere to the directions given above and not force the Petitioner-Madras Bar Association, which has been relentless in its efforts to ensure judicial independence of the Tribunals, to knock the doors of this Court again.

[Madras Bar Association v. Union of India, 2020 SCC OnLine SC 962, decided on 27.11.2020]


*Justice L. Nageswara Rao has penned this judgment 

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and Dr. DY Chandrachud and L. Nageswara Rao, JJ has made a slight modification in the guidelines issued by it on April 06, 2020 on functioning of courts through video conferencing amidst the COVID-19 pandemic.

The Court has ordered that the directions issued earlier need not be altered except sub-para (vii) of Paragraph 6 which shall be substituted with the following:

“The Video Conferencing in every High Court and within the jurisdiction of every High Court shall be conducted according to the Rules for that purpose framed by that High Court. The Rules will govern Video Conferencing in the High Court and in the district courts and shall cover appellate proceedings as well as trials.”

Earlier sub-para (vii) of Paragraph 6 of the order dated April 06, 2020 read as:

“Until appropriate rules are framed by the High Courts, video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage. In no case shall evidence be recorded without the mutual consent of both the parties by video conferencing. If it is necessary to record evidence in a Court room the presiding officer shall ensure that appropriate distance is maintained between any two individuals in the Court.”

Noticing that several High Courts have framed their rules already, the Court directed that those High Courts that have not framed such Rules shall do so having regard to the circumstances prevailing in the State and

“Till such Rules are framed, the High Courts may adopt the model Video Conferencing Rules provided by the E-Committee, Supreme Court of India to all the Chief Justices of the High Court.”

Impressed with the functioning of virtual courts across the country amidst COVID-19 pandemic, the Court said,

“We must say the system of Video Conferencing has been extremely successful in providing access to justice.”

[IN RE GUIDELINES FOR COURT FUNCTIONING THROUGH VIDEO CONFERENCING DURING COVID 19 PANDEMIC, SMW (C) No(s). 5/2020, order dated 26.10.2020]


Read the guidelines dated April 06, 2020 on functioning of courts through video conferencing here

COVID 19Op EdsOP. ED.

Open Court hearings, Remote Court hearings through videoconferencing, Alternate Dispute Resolution (“ADR”) processes encompassing Arbitration and Mediation, virtual ADR and the Online Dispute Resolution (ODR) platforms form the justice delivery mechanism.

Various forms of justice delivery is made available to the society at large. What form works effectively in the Indian context?   Is access to justice effective enough to reach out to a large section of the society, or as they say ‘justice is for the rich only’ and ‘justice delayed means justice denied’.

COVID-19 has been generating popularity for using technological platforms i.e. virtual hearings, zoom webinars, zoom meetings, etc. Virtual hearings have become the focal point of discussion in webinars within the dispute resolution community worldwide to examine as to what extent virtual hearings could be considered as an alternative to open court hearings, notwithstanding the procedural and technical issues. Whilst some oppose it vigorously, others speak in favour of it.

Introduction

Digital technology has brought about tremendous changes in the way legal practices around the world have been conducted in the last two decades. The 1980’s until the mid 1990’s was the era of telefax and then the change came about through the medium of the internet, email, skype and videoconferencing.

As Professor Frederick I Lederer wrote in 1997, “The Courtroom is a place of adjudication, but it is also an information hub. Outside information is assembled, sorted and brought into the courtroom for presentation. Once presented, various theories of interpretation are argued to the fact-finder who then analyses the data according to prescribed rules (determined by the Judge through research, analysis and interpretation) and determines a verdict and result. That result, often with collateral consequences is then transmitted throughout the legal system as necessary. The courtroom is thus the centre of a complex system of information exchange and management. Ultimately, because lawyers and Judges deal continuously with ‘data’, high technology courtrooms exist and virtual courtrooms are possible. Litigation is a dispute between two or more parties, resolved by a Judge, jury or arbitrator following argument, usually by counsel. To prove facts in dispute, counsel present evidence. Witnesses are called, their accounts listened to and their demeanor studied. Physical evidence is considered – physical items, photographs, plans, schedules and video evidence considered.”

Most of these legal processes are being supported by the use of information technology. We are living in a technological age that is increasingly dependent upon computers and related information technology. The legal system is changing. Most of the lawyers, Judges, legal administrators, and support personnel have adopted word processing, electronic legal research, time and billing programs, and, increasingly, varying forms of case management software.

Electronic filing is already in use. Thanks to the initiatives taken by the E-Committee of the Supreme Court headed by Justice Dhananjay Chandrachud and by the E-Committee of the Delhi High Court. We are on the road to the virtual courtroom. Unless we take an intentional early exit elsewhere, our final destination is clear. There is no doubt the virtual courtroom is unlikely to replace our traditional courts and tribunals buildings in the near future, but even those traditional places of law and judgment will see increasing amounts of virtual evidence and adjudication. However, we have the opportunity, as we travel, to build some high-technology side roads leading to specialised virtual hearing rooms and traditional courtrooms aided by technology.

Open court hearings

India’s legal system is based on the English common law, codified laws, and non-codified customary laws. The jurisdiction of the courts in India is founded upon territorial and pecuniary grounds. The Supreme Court is at the apex exercising appellate jurisdiction for final appeals in civil, criminal and administrative matters, as well as original jurisdiction in constitutional matters. This is followed by a High Court and the lower courts. The High Courts have the appellate jurisdiction for the lower courts in the respective State. They establish the administrative procedures for the lower courts and, through precedent, outline the method of interpretation of the Code of Civil Procedure, 1908 and the Evidence Act, 1872 for civil and administrative cases and the Code of Criminal Procedure, 1973  for criminal cases.

Traditionally, the administration of justice requires hearing the cases and complaints of the litigants through their legal representatives/advocates and by the Judges in open courts. ‘Open courts’, refers to proceedings conducted before a court of law in full public view.   In India, Section 153-B[1] of the Code of Civil Procedure, 1908 and Section 327[2] of the Code of Criminal Procedure, 1973 require as a general rule, all civil and criminal cases to be tried in open court, subject to the discretion of Judges in certain cases as discussed later below.

Open justice is delivered in a ‘court’. In  Brajnandan Sinha v. Jyoti Narain[3],it was held that “a body or forum must have power to give a decision or a definitive judgment which has finality and authoritativeness which are essential tests of a judicial pronouncement, if it has to be treated as a ‘Court’.”

Indian Constitution provides ‘that the judgments of the Supreme Court of India shall be delivered only in open court’.

The stress to open justice can be seen in Order 18 Rule 4 of the Civil Procedure Code, 1908 which proves thus, “The evidence of the witnesses in attendance shall be taken orally in open court in the presence and under the personal.”

Section 153-B of Civil Procedure Code, 1976, provides that ‘The place in which any civil court is held for the purpose of trying any suit shall be deemed to be an open court, to which the public generally may have access so far as the same can conveniently contain them.

The same principle stressed in criminal law also under Section 327 of the Code of Criminal Procedure mandate “public access” to the court proceedings. In Naresh Shridhar Mirajkar v. State of Maharastra[4],  Bachawat, J. elaborated on open justice as follows “Long ago Plato observed in his laws that the citizen should attend and listen attentively to the trials. Hegel in his Philosophy of Right maintained that judicial proceedings must be public since the aim of the Court is justice, which is a universal belonging to all save in exceptional cases, the proceedings of a Court of justice should be opened to the public.”  The object behind the hearing in open court has been to provide legal assistance readily available to a person facing trial and it is in consonance with Article 21 of the Constitution.

Proponents of open justice assert numerous benefits. An overarching benefit is that it keeps courts behaving properly. Still, practical considerations often mean that the ideal of open justice must be weighed against other values such as privacy and cost and national security. Open justice is important for three reasons: First, it assisted in the search for truth and played an important role in informing and educating the public. Second, it enhanced accountability and deterred misconduct. Third, it had a therapeutic function, offering an assurance that justice had been done. There are other factors which sometimes must be balanced against the need for open justice especially in criminal matters and family matters.

Virtual court hearings: Historically

Virtual court hearings have been taken place in Indian courts much prior to the Covid era. Judicial precedents have emerged to maintain privacy and confidentiality of the parties.

A two-Judge Bench in Krishna Veni Nagam v. Harish Nagam[5]  while dealing with transfer petition seeking transfer of a case instituted under Section 13 of the Hindu Marriage Act, 1955, when both parties were not located within the jurisdiction of the same court, referred the parties to participate in the matrimonial dispute cases through video conferencing. While allowing the abovementioned transfer petition, the difficulties faced by the litigants living beyond the local jurisdiction was acknowledged by the Supreme Court that “it is appropriate to use videoconferencing technology where both the parties have equal difficulty due to lack of place convenient to both the partiesProceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person, wherever one or both the parties make a request for use of videoconferencing.”

Later on, Veni Nigam case[6] was overruled by the Supreme Court of India in Santhini v. Vijaya Venketesh[7], by a 2:1 majority.  Dipak Mishra, C.J. and  A.K. Khanwilkar, J.  held that “in transfer petition, video conferencing cannot be directed”. However, D.Y. Chandrachud, J. wrote the judgment in favour of the use of modern technology and videoconferencing.  Chandrachud, J. in the dissenting opinion highlighted the pros of videoconferencing which are laid down below:

  1. The Family Courts Act, 1984 was enacted at a point in time when modern technology which enabled persons separated by spatial distances to communicate with each other face to face was not fully developed. There is no reason for court which sets precedent for the nation to exclude the application of technology to facilitate the judicial process.
  2. Imposing an unwavering requirement of personal and physical presence (and exclusion of facilitative technological tools such as videoconferencing) will result in a denial of justice.”

In  Meters and Instruments v. Kanchan Mehta[8], it was pointed by the  Supreme Court that the “Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There is need to categorise cases which can be concluded “online” without physical presence of the parties where seriously disputed questions are not required to be adjudicated like traffic challans and cases of Section 138[9] of the NI Act.”

In case of criminal cases the rule is the trial should be conducted in open court, but at times it is excused. Under Indian law Section 327(3) Criminal Procedure Code, 1973 provides as follows, “Where any proceedings are held under Sub-section (2) it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the court.”

The breach of the provision in criminal cases has been made punishable under Section 228 of the Penal Code, 1860 which states, disclosure of identity of the victim of certain offences viz. rape, or printing or publication of a proceeding without prior permission of the Court has been made punishable with imprisonment for two years and fine under Section 228- A of the Penal Code.

Virtual hearings during the COVID era

The Supreme Court addressed the issue of delivery of justice in the form of an order dated April 6, 2020 during the COVID-19 lockdown. A Bench consisting of  Bobde, C.J. and D.Y. Chandrachud and L. Nageswara Rao, JJ.  issued a direction In re, Guidelines for Court Functioning Through Videoconferencing During COVID-19 Pandemic[10] regarding measures to be taken by courts to reduce the physical presence of all litigants within court premises by adapting the social distancing guidelines.

On April 6, 2020 the  Supreme Court passed a seven-page order explaining the reasons for moving online: “The Supreme Court of India and all High Courts are authorised to adopt measures required to ensure the robust functioning of the judicial system through the use of videoconferencing technologies; and consistent with the peculiarities of the judicial system in every State and the dynamically developing public health situation, every High Court is authorised to determine the modalities which are suitable to the temporary transition to the use of video conferencing technologies.”[11]

These guidelines were issued by invoking Article 142 of the Constitution of India as an extra-ordinary jurisdiction. In the aforementioned order, the District Courts were directed to adopt virtual court hearing through modes prescribed by the High Court concerned and to provide videoconferencing facilities for litigants who lack resources.

The use of technology to hold hearings remotely is meant to connect people, affording an opportunity to replace the real world, offline space, which may not be available to them for some reason. Courts all over the world are struggling with an appropriate way to hold fair hearings that are open to the public. In practice, decisions about to proceed with hearings during lockdown, and how hearings should be conducted, have been taken by Judges in the interests of justice. The hearings that have taken place remotely have naturally included urgent hearings.

While the learning curve has been steep and there have been challenges and lessons learned, most courts have successfully transitioned to new, virtual ways of conducting many kinds of hearings. While methods and processes for each court differ and may be somewhat unique, the overall impact is innovative disruption throughout the entire court community.

The view point on virtual court hearing

Virtual courts are here to stay for some time. It should be enhanced to include all regular matters not just urgent matters, since the pandemic is not coming to a close any time soon. The judiciary has made a good start by accessing tools of e-filing and video conferencing. The Supreme Court issued guidelines in this regard as well and most High Courts are functioning in this manner too.

However, we need to build on and embrace technology in a more systemic way in the present circumstances and not limit it to only urgent matters. Perhaps a blend of both ‘Open Courts’ and E- Courts could co-exist quite easily.

What are the advantages of virtual courts

  • Increasing efficiency of courts 

The virtual judiciary will result in substantial savings in costs and will also lead to speedy disposal of cases. The productivity of lawyers will increase substantially as visits to courts and long waiting hours will be more an exception than a rule. If this practice is extended to other civil cases, efficiency will drastically increase in judicial functioning.

  • Better utilisation of existing infrastructure

The jurisdiction of a court is defined by geography and it makes no sense in matters such as taxation and company law.  The transformation to remote, non-personal electronic court hearings will change this. All Judges can be empowered to handle any case, wherever it originates.  This will result in multiple advantages such as better utilisation of manpower and infrastructure by equitably distributing the work. 

What are the disadvantages of virtual courts

Like everything else every system has pros and cons. Many have voiced opinion that there are several technical glitches in the system and most lawyers are disadvantaged and are not in a position to adapt to the new settings. I do note and agree that a fair section of the lawyers outside the metro cities are not very privileged and fortunate to have all the facilities and amenities to carry on their practice in the usual manner. There is a feeling of a digital divide. However, on the other hand when any new changes are introduced we must adapt and improvise within the systems. It is important that the Bar Council and Bar Associations are required to provide training and facilities to the weaker section of the Bar.

The disadvantages of virtual courts also percolate to the junior members and the very senior members of the Bar. They do loose out heavily on the practical observations of watching learned seniors voicing their arguments and court craft skills. In addition, the conduct of the court by the  Judge would also be an important observation for the junior members of the Bar. All in all there is no substitute for practical learnings of the profession which is not feasible through videoconferencing.  Perhaps as mentioned above, a dedicated hybrid system can be adopted as and when the Corona crisis abates.

In addition, there are other practical challenges which require to be addressed. There is a lack of basic IT knowledge amongst lawyers particularly in smaller towns who were unable to avail the videoconferencing facility owing to lack of technical know-how. Clearly, professional bodies such as the Bar Council and Bar Associations need to cater to the segment of lawyers who face such inadequacies by providing training facilities on a regular basis.

Moreover, there are also issues related to cyber-security, data privacy and confidentiality which need to be addressed and secured.

Virtual ADR hearings

Several leading international arbitral and mediation institutions have quickly adapted to providing virtual arbitral proceedings, and have come out with protocols, guidelines and procedures to get on with business as usual.

On 16 April, 2020 leading arbitral institutions (the ICC, ICDR/AAA, ICSID, KCAB, LCIA, MCA, HKIAC, SCC, SIAC, VIAC) released a joint statement on COVID-19. The institutions acknowledge the challenging times, expressed their support for parties and arbitral tribunals by ensuring that pending cases may continue without undue delay.

It is now common for case management conferences to be run by leading arbitral institutions using virtual meetings or videoconferencing for cross-examination of some witnesses and experts to take place remotely. The international nature of disputes has also made electronic document storage, trial presentation and electronic bundling a practical option for many arbitrations.

More recently, the Africa Arbitration Academy has brought about impressive protocols on Virtual Arbitral HearingsConcerned about the ongoing effect of the COVID-19 pandemic on Africa’s Dispute Resolution Landscape, the Africa Arbitration Academy has just launched its Protocol on Virtual Hearings in Africa[12]. The Protocol, provides for recommendations on virtual arbitral hearings and considers the specific challenges and circumstances that may arise in relation to remote hearings in Africa.

The overarching objectives of the Protocol are as follows:

(a) to provide guidelines and best practices for arbitrations within Africa, where a physical hearing is impracticable due to health, safety, cost, or other considerations;

(b) to encourage African institutions and governments to make express references to virtual hearings in arbitration rules and laws;

(c) to serve as guiding standards, principles, and provisions to be adopted by arbitral institutions or governments in Africa when drafting their arbitration rules and laws.

Considering that most arbitrations in India are ad hoc based and not institutionalised, barring a few institutions like the MCIA, Nani Palkhivala Center in Chennai, Delhi International Arbitration Centre and or the ICA. Are these institutions adapting to the changes and getting on with virtual hearings. In India, institutional arbitration has picked up only in recent past.

How are ad hoc arbitrations coping with the COVID challenge? Majority of the arbitration cases are still conducted under the ad hoc mechanism prescribed under the Arbitration & Conciliation Act, 1996 (“the Act”). It remains to be seen how many have opted for virtual hearings. Of course this also depends at what stage are the proceedings presently at. Infrastructure also poses a challenge, including privacy and confidentiality issues amongst other issues.

No doubt, parties can also exercise options under the Act. The Act, provides for a scenario where parties could opt for a documents only arbitration, where it was not mandatory to have oral hearings i.e. Section 24(1) of the Act.

In addition, the 2015 amendments to the Act, introduced the concept of fast track arbitration i.e. Section 29-B of the Act. As per Section 29-B, parties may mutually decide to adopt the fast track mode of arbitration in which the arbitrator has to decide and pass an award within six months of the date of reference. It shall be pertinent to note that only a sole arbitrator can be appointed in this case. Thus, if the parties intend to resort to the fast track method, the arbitration clause in the agreement has to be modified accordingly by specifically providing for a sole arbitrator to decide the dispute. The fast track arbitration proceedings shall be concluded and decided only on the basis of written pleadings and supporting documents. No oral hearing will be conducted unless requested by both parties. This may or may not be conducive in complex matters where evidence would require to be evaluated and oral arguments are necessary to determine a particular matter.

Due to lack of a uniform arbitration bar and too many ad hoc arbitrations and few arbitral institutions, there are no common virtual hearing protocols in place.

Perhaps the MCIA, Nani Palkhivala Center in Chennai, Delhi International Arbitration Centre or the leading Chambers of Commerce like FICCI, PHD Chambers of Commerce should come out with Virtual Hearing Protocols which may be adopted by the parties engaged in ad hoc arbitration or by the sole arbitrators to tide over the current challenges the world is facing.

Online Dispute Resolution (ODR) Process

Can COVID-19 be a turning point for the judicial framework in India to avail of the progress made in technology to streamline systems and reduce the delays that have plagued India’s judicial process since several years?

India, with its large population and multiple problems such as judicial delays, pendency and lack of access to the justice system, is uniquely positioned to spearhead the adoption of technology in decongesting its courts, physically as well as in terms of case load.

ODR consists in using information and communication technology processes to negotiate, mediate, arbitrate, conduct proceedings, and settle disputes exclusively or primarily online goes a step farther than the ADR system. A number of businesses with large number of low value cases will have the need for experimenting ODR processes. Building capacity for these disputes is very important.  As our world evolves to where smart phones serve as remote controls to our lives, the way we think about resolving conflict must develop too.

The use of ODR in India is at a nascent stage and is starting to gain prominence day by day. A joint reading and interpretation of the Arbitration and Conciliation Act, 1996, the Information Technology Act, 2000, and the Evidence Act, 1872 not only make ODR legally and technically viable, but also helps overcome jurisdictional issues, eliminate geographical barriers, automate administrative tasks, improve productivity of professionals, promote eco-friendly processes, and finally, deliver a quick, economical and effective solution to disputes.

E-commerce transactions and relationships generate disputes, and this has translated into an unprecedented “growth industry” of disputes. In recent decades, global companies have handled disputes involving domain names which have been resolved through an online arbitration process. India has the potential of a larger growth industry of disputes in the 2020s because the new technologies have made possible huge numbers of transactions and relationships across the board.

National laws regulating arbitration in many civil law countries have broadened the form requirement of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (‘the New York Convention’). These include Germany, France, Austria, Slovenia, Greece, The Netherlands, Ukraine, and Switzerland. Under the laws of these countries, the form requirement includes electronic communications such as e-mail communications.

For this, the low hanging fruits to be plucked are those cases which are document heavy. Civil cases and commercial dispute resolution offer an ideal starting point.

So what would work to provide access to justice more accessible

There is no substitute for open court hearings. During these challenging times, the response from the Supreme Court of the country to switch to video conferencing for conducting hearings was both prompt and effective. 

What could perhaps be considered and examined is that open court hearings should take place in matters of constitutional importance and complex civil and commercial matters. It would be useful eventually to have a blend of e-courts and open courts to make progress and deliver justice to all sections of the society. No doubt there would be teething problems initially like everything else, but in the long term there lies a great opportunity and solution.

To what extent will the virtual courts/online dispute resolution make inroads and replace the existing set-up? The answer lies primarily in identifying the type of disputes which can be successfully resolved using virtual hearing and artificial intelligence. ADR has occupied the place it has today owing to the delay in resolution of disputes through the traditional infrastructure of courts. The quest for making ADR efficient, faster and cost effective has led to new platforms such as ODR. ODR is a step ahead of the ADR process where claims are filed on an online dispute resolution forum and the verdict is given without the parties ever having to be personally present.  Proceedings of specialised tribunals are another area where matters can be examined and be filed online on the basis of written submissions and documents.

While the Supreme Court of India and High Courts in the country have laid down guidelines for videoconferencing during the lockdown, that is not the only solution to keep the essential services of the courts running.  We will require a complete digitisation of the judiciary – eFiling, eHearing, eTrials, uniform structure of judgments that enable easy search and analytics to spot similar cases – perhaps a unique case number that remains the same from lower through to the Supreme Court and an app to inform clients about their next hearing. We would also require Judges, clerks, lawyers and clients to be trained on the procedure and technology. 

Only a limited section of the country truly can afford to have access to justice.  India is truly at the cusp and needs to grab the opportune moment to set an example. This will also pave the way for ease of doing business which in turn would attract greater Foreign Direct Investment and also be efficient for enforcement of contracts. Processes will need to be designed by experienced people to get the best out of the selected technologies so that access to justice becomes more accessible in times to come not withstanding the aforesaid blend of justice being imparted at the present moment.


*(Barrister) Advocate, Supreme Court, Partner at Jafa & Javali, Advocates, New Delhi

[1] Section 153-B CPC, 1908  

[2] (1955) 2 SCR 955  

[3] (1966) 3 SCR 744  

[4] (2017) 4 SCC 150 

[5] Ibid

[6] (2018) 1 SCC 62  

[7] (2018) 1 SCC 560  

[8] Section 138, NI Act  

[9] 2020 SCC OnLine SC 355

[10] Ibid 

[11] Africa Arbitration Academy Protocol on Virtual Hearings in Africa 2020

https://www.africaarbitrationacademy.org/protocol-virtual-hearings/

Op EdsOP. ED.

Respected My Lord The Hon’ble Chief Justice, my Esteemed Brother and Sister Judges, the Learned Advocate General, Learned Additional Advocate Generals, Learned Additional Solicitor General of India, the Assistant Solicitor General of India, the Learned Public Prosecutor, Learned Special/Additional Government Pleaders, Learned Government Advocates, Learned Senior Advocates, Learned Members of the Bar at Madras and Madurai, the Registrar General and other Registrars, Officers and Staff Members of Principal Bench and Madurai Bench of the High Court.

A very Good afternoon to all of you.

At the outset, I express my gratitude to the Learned Advocate General for showering praise and for having spoken kind words about me. Today, I stand before you in a humble manner and in awe for the reason that many of you had thought it fit to attend my farewell function of your precious valuable time. The presence of Learned Judges of this Court both [sitting and retired] and other persons is a welcome gesture. During my tenure as Judge of this Court around 11½ years, I learnt many facets of law and about the gritty of administration and I got enriched myself to the optimum level. By working in unison and with unstinted co-operation and assistance, we performed a lot of good work in the Justice Delivery System. The members of the Bar were very kind, accommodative and besides being co?operative and of good assistance to the functioning of the Court. The love and affection poured by all of you is indeed a mind-boggling one. Today, I have no words to thank the Hon’ble Judges, the Officers of the Registry and others for their support and encouragement shown to me.

In my 30 years career as a Judge (beginning from 15-2-1989 as a directly recruited Sub Judge, Ariyalur), I am indebted to my benefactor Hon’ble Justice Dr S. Mohan, Former Judge, Supreme Court of India, as Chairman of the Selection Committee, who picked me as a Direct Recruit Sub Judge at 31 years of age which made me the youngest Judicial Officer in the History of Tamil Nadu State Judicial Services? My heartfelt gratitude to Former Chief Justice of this Court Justice Subhashan Reddy, Justice Markandey Katju [former Supreme Court Judge and erstwhile Chief Justice of this Court] and Justice A.P. Shah (former CJ of this Court) for providing me an opportunity to serve under them as Registrar Judicial for three years and four months uninterruptedly (from 27-3-2003 to 3-8-2006).

I would like to convey my gratitude to the Hon’ble Chief Justice of this Court for the constant support and kindness, extended to me. I also thank all my Brother and Sister Judges for their unflinching support especially all the Judges who were beside me in the Division Bench and made their valuable contribution.

On a personal note, I felt comfortable spending time with my judicial work rather than remaining active in social life. I extend my gratitude to all my attached staff members viz, Private Secretary Mrs Geethalakshmi, Personal Assistant Mrs Saradha and Mr Selvaraj, Office Assistant all these years for turning out tireless work and putting in more hours of work, on holidays too, beyond the schedule. I owe my educated parents for giving me good and higher education and bringing up with tough, stern and nurtured values. With my retirement, I can sense in impending anxiety in my wife, now that she is to bear with me all day which could be termed as ‘Mission Impossible’, where I will be considered as an ‘antagonist’. Jokes apart, my wife Mrs Hemalatha had sacrificed her great career and been the Heart and soul of my family as the ‘Captain cool of our Home.’

I am happy that my son Dr V. Vivian Kapil was brought in such a way that he should not be lured by all the transient temptations and ought to realise the hardships of life and aspire for meaningful heights. He turned out to be a good doctor and specialised in the field of Psychiatry, I am really proud to be a father of my son Dr V. Vivian Kapil, Consultant Psychiatrist in Chennai now, who has numerous International recognitions like Early career Psychiatrist Award from Egypt and being one of the youngest ever Indian Psychiatrist to become an ECP Member of World Psychiatric Association, Geneva and so on. He is married to Dr Ramya Revathi, a Gold Medalist Psychiatrist.

We as servants of Almighty, have a thankless duty to serve our ‘Mother Land of Bharat’, We are all bestowed by the Almighty to render justice to the needy people and this high responsibility requires incessant hard work, countless ruminations and altruistic attitude from each one of us with a view to make this world a better place to live in. Remember ‘World is unkind’ because it forgets ‘Don Bradman’ with the arrival of ‘Vivian Richards’ and in turn forgets Viv with the entry of demi god Sachin Tendulkar and forgets the Master Blaster with the advent of King ‘Virat Kohli’, It cannot be gainsaid that no individual is and will ever be greater than the Institution. Hence, I take immense pride, pleasure and honour to have commenced my legal career at the age of 23 and culminated as a Judge of this prestigious chartered High Court for which I will be eternally grateful.

In life, we are visited by joys-sorrow in continuum. Hence, retaining once composure is a very important unbridled happiness makes a human being proud and arrogant. Untold sorrow breaks one’s spirits. Instead of wasting precious energy on what lies ahead, one can be a ‘Karmayogi’. In what way ‘Karma’ plays out in our lives is beyond Homo Sapien’s ken. However, the crystalline truth is that none can escape Karma. The fruits of one’s actions will appear in his own time. Therefore, it will be quite in the fitness of things to focus on the quality of one’s Karma.

‘Law has been like an oxygen to me’, I have spent most part of my life with law books, legal journals, and Court than with my family, friends and well-wishers. I have no simmering doubt that the Madras High Court will continue to produce greater legal luminaries, legal minds in the years to come. I can dwell in peace forever that I have been a small drop in this greater Ocean called the ‘Madras High Court’.

Once again I thank all of you.