Plea Filed in Supreme Court Challenging the Decision of Uttarakhand HC to Revert to Full Physical Functioning, Seeks to Declare Virtual Court Hearing as Fundamental Right.

(Judicial Quest News Network)

In a significant development a plea has been moved before the Supreme Court by a Lawyer’s body challenging the decision of Uttarakhand High Court to revert to full physical functioning from August 24 to the exclusion of virtual model of hearing cases.

The petition has challenged an August 16 Notification issued by the High Court which said Hon’ble Court is pleased to direct that the Hon’ble Court will resume normal judicial work only through physical mode w.e.f. 24.08.2021, and no request for virtual hearing will be entertained by the High Court. 2. All the provisions of the Standard Operating Procedure (SOP) notified by the Hon’ble Court with notification No. 289/UHC/ Admin.B/ 2021 Dated 26.07.2021, which confirms to the normal hearing will continue to apply.

The plea is filed by All India Jurists Association, a body of more than 5,000 lawyers across the country, and Journalist Sparsh Upadhyay of Live law also sought a declaration that right to participate in court proceedings through virtual courts via video conference is a fundamental right under Article 19(1) (a) and (g) of the constitution.

also prays for issuance of Mandamus restraining the various High Courts from denying access to lawyers through virtual mode of

hearing and video conferencing on the ground of availability of option of physical hearing. The occasion of seeking the said relief has arisen in the view of the fact that large number of advocates of the Petitioner

association as also those across the Country are compelled to appear physically before many Courts of the respective High Courts, in view of commencement of physical hearing in the High Courts. It is the submission of the Petitioners that the various High Courts as

impleaded in array of respondents be obligated not to deny free and unrestricted access to virtual courts/ video conferencing to them, simply because the physical hearing has commenced.

The occasion of seeking the said relief has arisen in the view of the

fact that large number of advocates of the Petitioner association as also those across the Country are compelled to appear physically before many Courts of the respective High Courts, in view of commencement of physical hearing in the High Courts. It is the submission of the Petitioners that the various High Courts as impleaded in array of respondents be obligated not to deny free and unrestricted access to virtual courts/ video conferencing to them, simply because the physical hearing has commenced.

The plea is filed through Advocates Sriram Prakkat and drawn by Siddarth R Gupta and Prerna Robin submits that the notification issued by Uttarakhand High Court on August 16 is a death knell for the very idea of virtual courts which is an accessible, affordable justice in the country as observed by the E- Committee of Supreme Court.

The petitioners further contended that in spite of the observation that allowing a hybrid mode of court proceedings does not inconvenience

any of the stakeholders, and also encourages litigants, young lawyers, and counsels hailing from remote parts of the country to be similarly placed alongside lawyers who reside and practice in and around the various courts.

In support of their pleas the petitioners said that access to Virtual Courts and conducting cases through video conferencing by resorting to usage of information, communication and technology is a fundamental right available to every lawyer under Article 19(1)(a) and (g) of the Constitution of India. Being a fundamental right, it cannot be defeated or dispensed with on procedural/processual grounds of lack of technology or infrastructure or inconvenience of the Courts in handling them. The exercise of the said right can be restricted or dispensed with only and only when there are circumstances met out under Article 19(3) of the Constitution of India. Simultaneously, it is also a Fundamental Right of the litigant before the Court as available under Article 21 read with Article 38 and 39A of the Constitution of India.

Such access cannot be defeated or dispensed with We live in an age of information and are witness to a technological revolution that pervades almost every aspect of our lives. Redundancies and obsolescence are as ubiquitous as technology itself. Technology is a great enabler. Technology can be harnessed by the State in furthering access to justice and fostering good governance.

this Hon’ble Court in the matter of Anuradha Bhasin and Ors. v. Union of India (UOI) and Ors. reported in (2020) 3 SCC 637 categorically held that access to internet, technology, various web-based services and software-based applications available therein can be treated as facet of Fundamental Right under Article 19(1)(a) read with 19(1)(g) of the Constitution of India and the same cannot be curtailed casually without any reasonable justification. This Hon’ble Court further went on to hold Vide Para 26 to 27 that procedural impediments or hurdles cannot defeat the exercise of Fundamental Right to the internet or free exchange of ideas, emotions or speech through internet and technology. By the said reasoning as adopted by this Hon’ble Court in matter of Anuradha Bhasin (supra), it can safely be said that the right to participate in Court proceedings through Virtual Courts through the usage of internet and technology is a Fundamental Right of any lawyer/legal practitioner available under Article 19(1)(a) read with Article 19(1)(g) of the Constitution of India, which cannot be curtailed by any Constitutional Court except for reasonable justifications. It can also be concluded that it is also Fundamental Right of a litigant to observe, watch and participate in legal proceedings in which he is interested as a concomitant to Fundamental Rights available under the said articles.

In another citation the petitioner mentioned that in September, 2018, this Hon’ble Court in the landmark Judgment of Swapnil Tripathi v. Supreme Court of India reported in (2018) 10 SCC 639

explicated extensively on the uses of ICT (Information and Communication Technology) for assuring in a system of Digital Courts providing for Virtual Courts and video conferencing solutions.

This Court underscored the necessity of providing Justice in accessible, affordable and through cheap modes of communication to all the stakeholders in Indian Legal System including lawyers and litigants.

The petitioners prayed interim relief is necessary to be granted

because the administrative order passed by Uttarakhand High Courts operates to serious prejudice of members of the Petitioner

association as also the other Petitioners, specially the media persons denying them the exercise and enjoyment of their Fundamental

Right of access to Courts through virtual mode. If the said order is not stayed it will have a cascading effect with all other High Courts immediately suspending virtual access to their Courts or shall continue demoralising/discouraging counsels from insisting upon

virtual appearances.