DELHI HIGH COURT VIDEO-CONFERENCING RULES: APPROVAL OF THE GOVERN(ERR)?

We have all stepped into a new world, one which is based on remaining out of congregate settings, avoiding mass gatherings and maintaining distance to limit the spread of COVID-19. Amidst this, the disruption of the court systems is unprecedented. In response to the pandemic, courts across India are mitigating the effects of closure by using technology to replace traditional court hearings.

To keep the wheels of the justice delivery system moving, the Delhi High Court on June 1, 2020, in the exercise of its power under Article 225 and Article 227 of the Constitution of India (“Constitution”), has framed High Court of Delhi Rules for Video Conferencing for Courts 2020 (“Rules”).1 Further, vide a notification dated June 1, 2020 (“Notification”), the said Rules have been made applicable to not only the High Court of Delhi, but also the courts and tribunals subordinate to the Hon'ble High Court. In such times of crisis, it is a welcome step in the right direction. However, this article inquires whether the Rules and the Notification which makes the Rules applicable to the courts and tribunals subordinate to the High Court of Delhi, are in compliance with the proviso to Article 227(3) of the Constitution which states that any rule made thereunder by the High Court is subject to the prior approval of the Governor.

Article 227 of the Constitution2 lays down the power of superintendence over all courts and tribunals by the High Court throughout the territories in relation to which it exercises its jurisdiction. It is well settled that this power of superintendence is administrative as well as judicial and is capable of being invoked by any person aggrieved or in the exercise of suo motu powers of the court. Further, Article 227(2) empowers the High Court to make and issue general rules and prescribe forms for regulating the practice and proceedings of the subordinate courts. However, the rules made by the High Court in this regard are limited (by virtue of the proviso to Article 227(3), which is applicable to clause (2) thereof as well) in the following two ways:

  1. it shall be subject to prior approval by the Governor; and
  2. it shall not be inconsistent with the provisions of any law for the time being in force.

Moreover, Section 4(b) of the Delhi High Court Act, 19663 states that the reference to the term ‘Governor' in the proviso to Article 227(3) shall be construed as a reference to the administrator of the Union Territory of Delhi. It is important to note that Article 239-AA of the Constitution provides that the administrator appointed by the President under Article 239, for the administration of the union territories shall be designated as the Lieutenant Governor for the National Capital Territory of Delhi.

Further, Article 225 of the Constitution4 maintains the status quo existing on January 25, 1950, in respect of jurisdiction and powers of the High Court.5 It continues to confer the existing High Courts the same jurisdiction and powers, as they possessed immediately before the commencement of the Constitution. The conferment of this power is of the widest amplitude, and the High Court is competent to make rules regulating the manner in which it is to exercise its powers and jurisdictions subject to the provisions of the Constitution and law made by the appropriate legislature, if any.

On the one hand, the High Court is well within its powers to frame its own rules under Article 225 for the exercise of its original and appellate jurisdiction. On the other hand, the High Court, while exercising its power of superintendence over the subordinate courts under Article 227 is obligated to seek prior approval of the Governor. An analysis of the rules notified by the Delhi High Court in the exercise of its powers under Article 227 of the Constitution in the previous notifications reveal that the prior approval of the Lieutenant Governor of Delhi was sought and was duly obtained.5 However, neither the Rules nor the Notification nor any other publicly available record indicates that prior approval of the Lieutenant Governor has been obtained before the Notification was published. It is pertinent to note that in such a scenario, the application of the Notification, and consequently the Rules in their present form, over courts and tribunals subordinate to the High Court of Delhi, are liable to be challenged over their constitutionality. A challenge, if upheld, could have severe consequences on proceedings already initiated or completed under the said Rules before the courts and tribunals subordinate to the High Court of Delhi. This situation is, of course, best avoided, especially under the prevailing circumstances.

The rule of law is the bedrock of our legal system. The Constitution confers wide powers on the High Court to prevent abuse or misuse of the legal machinery by the subordinate courts and tribunal within its jurisdiction. The High Courts shoulder the responsibility of ensuring that the judicial system is not used as a means of oppression and the process of litigation is free from legal challenges. Therefore, the prior consent of the Lieutenant Governor of Delhi, in compliance with the proviso to Article 227(3) before the application of the said Rules on the subordinate courts and tribunals might well need to be publicly made available. It is hoped that all the other High Courts would follow suit and rise to the occasion to ward off the current challenges that the legal system is facing and would exercise their power of superintendence to frame rules as per the constitutional mandate for conducting virtual hearings through video conferencing to ensure effective and timely dispensation of justice.

A word of caution. Hearings through video conferencing cannot be a complete substitute to physical hearings, but they are a requirement to keep the legal system going in these trying times.

Footnotes

1 http://delhihighcourt.nic.in/writereaddata/upload/Notification/NotificationFile_ULDC4UVQWZ9.PDF.

2 227. Power of superintendence over all courts by the High Court-

  1. Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
  2. Without prejudice to the generality of the foregoing provisions, the High Court may-
    1. call for returns from such courts;
    2. make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
    3. prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts
  4. The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor
  5. Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any Court or tribunal constituted by or under any law relating to the Armed Forces


3 4. Exceptions and modifications subject to which the provisions of Chapter V of Part VI of the Constitution apply to the High Court of Delhi.— (1) The provisions of Chapter V of Part VI of the Constitution shall, in their application to the High Court of Delhi, have effect subject to the following exceptions and modifications, namely:—

(b) in article 219, the reference to the Governor of the State, and in the proviso to clause (3) of Article 227, the reference to the Governor, shall be construed as a reference to the administrator of the Union territory of Delhi;

4 225. Jurisdiction of existing High Courts- Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:

Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction

5 Durga Das Basu, Commentary on the Constitution of India, Vol. 6, 8th ed., 2010, p.6441.

6 A few notifications of the Hon'ble Delhi High Court in which prior approval of the Lieutenant Governor was obtained, http://delhihighcourt.nic.in/writereaddata/upload/Notification/NotificationFile_M3B4ZKLL.PDF, http://delhihighcourt.nic.in/writereaddata/upload/Notification/NotificationFile_KV8S1HJK.PDF, http://delhihighcourt.nic.in/writereaddata/upload/Notification/NotificationFile_NCKBIH1G.PDF.

Originally published 09 July, 2020

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