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:
On Friday, 13 March, the Secretary-General of the Supreme Court issued a notification declaring that the Court will function at a reduced capacity from 16 March 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.
Soon thereafter, on 14 March, 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.
On 22 March, 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 22 March, Sunday. The first one was issued with a view to further reduce the number of benches hearing cases. Thus, on 23 March, only two benches will take up matters. The first one presided over by the Chief Justice and Justices L Nageswara Rao and Surya Kant will hear eight cases starting from 11 am. Once this bench finishes hearing, another bench comprising the Chief Justice and Justice DY Chandrachud 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 Justices Arun Mishra, Deepak Gupta and MR Shah, as well as the one consisting of Justices SK Kaul, KM Joseph and Sanjiv Khanna will no longer hear cases, as they were originally expected to.
As per the second notification, starting 25 March, 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.
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.
On 23 March, 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:
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 18 April, 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.
On 15 May, the Supreme Court registry announced that the summer vacation, originally scheduled from 18 May to 19 June, 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.
In a notice issued on Tuesday, 2 June, 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: firstname.lastname@example.org.
Two days before re-opening, the Court published its latest Standard Operating Procedure (SOP) on 4 July. Given that COVID-19 is surging, Chief Justice Bobde 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.
On Friday, 10 July, 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 themself (a 'party-in-person') do not have to physically attend hearings before the Office of the Registrar.
The following day, on 11 July, 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 11 July 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.
In a brief hearing revolving around the financial difficulties that advocates are facing due to COVID-19, Chief Justice Bobde 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).
Chief Justice Bobde 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.
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 digitization.
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.
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.