Virtual hearing at the Supreme Court: Why go against directions of the master of roster?

During an eight-month period between 2017-18, the Supreme Court of India, by way of three separate orders, reaffirmed that the Chief Justice of India (CJI) is the master of roster.

Besides having the final say over deciding which judges will hear which cases, the CJI as the master of roster is well-recognised as the administrative head of the Supreme Court. The decision of the CJI on the administrative side is considered binding, although it may be subject to a judicial challenge.

Sans such a challenge, the other judges adhere to this time-tested practice.

Interestingly, the fact that the vacation judge at the Supreme Court is not the administrative judge but the CJI continues to don the role unlike in certain High Courts, was also reaffirmed by Justice BR Gavai on Tuesday.

"We cannot assume the jurisdiction of the CJI. High Court vacation judge is judge in admin side also and for all purposes. But here we are controlled by registry. Our hands are tied," said Justice Gavai when a lawyer sought urgent listing of a case.

In this context, it was baffling to note that on Monday, May 30, a vacation bench of Justices Ajay Rastogi and BV Nagarathna insisted that lawyers should appear physically to argue their cases before the top court.

The Bench said that since judges are coming to court everyday, lawyers, particularly Senior Advocates, should be present physically, if they want a hearing.

"We come to court everyday. Come and argue. Lawyers who are physically present will get indulgence," Justice Rastogi said.

The Court, therefore, turned down a slew of requests made by Senior Advocates and lawyers to hear their cases via the video conference facility. The Court adjourned those cases, while asking them to be present in court to be heard.

"Vacation is not for seniors and it is only for juniors," the Bench remarked.

These sentiments ran contrary to a circular issued on May 20 by the top court, which explicitly provided for hybrid hearing during the summer vacation, meaning that lawyers would have the option to appear physically or virtually during this period.

Interestingly, the decision to continue with virtual hearings, albeit in a limited manner, was in force even prior to the vacation. The Court has been giving lawyers the option to appear virtually on miscellaneous days i.e. Mondays and Fridays.

CJI NV Ramana had recently said that such a decision was taken in order to ensure that the apex court remains accessible to lawyers from distant parts of the country.

The system of virtual hearing adopted as a consequence of the COVID-19 pandemic has made the apex court accessible to lawyers who were hitherto unable to appear before it due to geographical constraints.

It has also greatly benefited a section of women lawyers, who are now able to appear and argue from the comfort of their homes, making it easier for them to manage other responsibilities that, until now, came in the way of their having a fulfilling practice.

Another welcome change effected by the system of virtual hearing at the Supreme Court, especially on miscellaneous days, is the reduction in the footfall in the court building. Prior to the pandemic, the inability of the existing infrastructure of the Court to absorb the crowd was all but apparent. And though many CJIs had extensive discussions with the Bar on means to control the crowd and the risks associated with it in the corridors and court rooms, no robust solution was forthcoming.

And while there are some merits that physical hearing has over its virtual counterpart, the benefits that the latter offers lawyers cannot be overlooked. Besides, lawyers who are adamant about appearing physically always have the option to do so.

Therefore, insisting that lawyers appear before the Supreme Court physically, especially when the CJI has given them an option to appear virtually, is an exercise in futility that serves no utilitarian purpose.

Let the master of roster prevail!