Mr. Kaushik, the Court has already allowed virtual appearances to count up to 25%. Why is this not sufficient? What is wrong with requiring that a majority of appearances be physical?

My Lord, the issue is not that 25% is insufficient; it is that the distinction between physical and virtual appearances is arbitrary. The Supreme Court itself has held that video conferencing allows one to see, hear and talk with someone far away with the same facility and ease as if he is present before you. If the technology is equivalent, then virtual appearances should count equally. The requirement of 75% physical appearances sends a message that virtual appearances are somehow inferior, which is contrary to this Court's own observations. Moreover, it disadvantages advocates who reside outside Delhi-NCR, advocates with disabilities, and women advocates who may face caregiving responsibilities that make frequent travel to Delhi difficult.

The SCBA is a physical association located in the Supreme Court premises. Should not its voting members have a physical connection to the Court?

My Lord, the SCBA is a physical association, but its members are advocates who practice before the Supreme Court. Practice before the Court can now be conducted virtually. An advocate who appears virtually in 50 hearings in two years is just as much a 'regular practitioner' as one who appears physically in 38 hearings and virtually in 12. The physical location of the SCBA building does not require that its members be physically present in the building a certain number of times. Voting is conducted online or by postal ballot in many bar associations. The focus should be on substantive engagement with the Court, not on the mode of engagement.

The reduced thresholds for women (30 appearances) and disabled (5 appearances) are significant concessions. Does this not address the concerns of these groups?

My Lord, the reduced thresholds are welcome, but they do not address the core issue of the 75-25 split. A disabled advocate who can appear virtually from home may still find it difficult to make physical appearances. Even with a reduced threshold of 5 appearances, if 75% of those must be physical, they would need to make 4 physical appearances. For an advocate with mobility challenges, 4 physical appearances may be as difficult as 50 physical appearances for a non-disabled advocate. The solution is to eliminate the physical appearance requirement entirely, or to drastically reduce it, and to allow virtual appearances to count equally.

The requirement of 10 lead appearances in reported judgments for President is intended to ensure that the President has a track record of meaningful participation. Is that not a reasonable requirement?

My Lord, the requirement of lead appearances is reasonable, but the requirement that they be in 'reported judgments' is problematic. Many excellent arguments are made in cases that result in unreported judgments. The reporting of judgments is not within the control of the advocate; it depends on the Court's determination of whether a judgment is fit for reporting. An advocate may have argued 50 cases successfully, but if only 8 of those judgments are reported, they would be disqualified from contesting for President even though they have a strong track record. The criterion should be lead appearances in the Supreme Court (whether reported or not) in the preceding years.

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Virtual Appearances Must Count Equally for Voting Eligibility — Supreme Court Bar Association

The COVID-19 pandemic has permanently transformed court functioning. Virtual hearings are here to stay and should count equally with physical appearances for SCBA voting eligibility.

Supreme Court Bar Association v. B.D. Kaushik (M.A. Diary No. 13992/2023 arising out of C.A. Nos. 3401-3402/2003)

Core Argument

The COVID-19 pandemic has permanently transformed court functioning. Virtual hearings are here to stay and should count equally with physical appearances for SCBA voting eligibility. The requirement of 75% physical appearances discriminates against advocates who have embraced virtual practice and those who cannot regularly travel to Delhi.

Key Precedents

In Re: Guidelines for Court Functioning Through Video Conferencing During Covid-19 Pandemic (Suo Motu Writ (Civil) No. 5/2020) — Authorised virtual functioning and held that video conferencing allows remote presence with the same facility as physical presence.
State of Maharashtra v. Praful Desai — Held that video conferencing may be used to record evidence and that advances in technology have shrunk the world, enabling one to see and hear events taking place far away.

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