Coronavirus lockdown must catalyse widespread use of virtual hearings in Indian legal system

The Chief Justice of India announced that the Supreme Court will be constituting a seven-judge panel to determine if physical hearings across courts and tribunals in India may resume. It is hoped that this will allow some clarity in when the justice delivery system can move back to pre-coronavirus levels, given that there has been a general shutdown in the dispensation of justice during this lockdown. While urgent applications were being heard, many of the earlier cases that were already pending were stalled. In a judicial system already ripe with backlogs, when courts reopen again, there will be six-months-worth of cases that would have to be filed at the same time. It does cause one to pause to see if an already overburdened judiciary will be able to handle this additional workload. The lockdown also showed us that courts in India could function via virtual hearings. The Supreme Court and the high courts had virtual hearings and these facilities were even found in district and trial courts. Further, ad hoc e-filing systems were created overnight to allow for the filing of urgent applications electronically. The Information Technology Act, 2000 which back then itself had said that anything on that could be done on paper could be done electronically as well, unless prohibition, finally was able to be utilised in order to ensure unavoidable suffering due to the lockdown was not incurred. Which makes us wonder, would going back to physical hearings be a step backwards? Virtual hearings have shown that matters can be heard quickly and disposed of quickly. Further, the barrier created by urgency, has ensured that only cases that truly belong in court are being brought to the court. This is an ideal situation that should have existed as a default if India had an effective regime for costs, court fees and legal aid. This implies that whenever courts do reopen, going back to the status quo of a physical court rooms with large paper files would be a step backwards.

We have shown that we can move forward: It is time the Supreme Court permanently institutionalised the practice of virtual hearings.

Such that all matters where personal presence may be dispensed with, can be dispensed with. This will have massive benefits across the system. The argument against such a move is that the infrastructure to support virtual hearings as being the default and physical hearings being the exception just does not exist. Yes, but that is not an argument against the concept. The solution must be to build and create the infrastructure to ensure this may occur. The costs of this infrastructure can be realised from the reduction in having to maintain physical premises, lower requirements for staff and the repurposing of existing court buildings which more often than not occupy prime real estate. India is a market with some of the highest tele-densities in the world. India also has its own space programme which is par excellence. The excuse that infrastructure cannot penetrate into the rural areas does not survive anymore. If India can get an ATM in every village (and yes, ATMs also use networks), India can ensure that there are points by which people without facilities may access them. E-courtrooms which allow people to access justice without having to travel to the area with the court maybe powered by our own network run by our satellites. India’s courts are organised based on pecuniary thresholds when it comes to civil matters and gravity thresholds (how grave the crime is) when it comes to criminal matters. This means, that more often than not, there is only one principal district court for a whole district. In large states, some districts can be as large as some countries. Parties have to travel quite far to ensure that they can access the court premises. Further, not just parties, their lawyers also must travel far to access courts. On the appellate sides of most high courts, parties, and counsel, travel all the way from the districts to attend hearings only to have their matters not reach. A whole day’s expense is wasted, and this is an expense that cannot be recovered due to the regime for costs. For a lawyer in India (unless s/he is lucky enough to have a client with a magic chequebook), it is very difficult for them to continue engagement from the trial all the way to the appellate stages. This also results in professional issues, as many very good practitioners do not get a chance to become high court judges or senior advocates only because they are unable to argue matters in the high courts and the Supreme Court. With virtual hearings, an advocate can literally argue before any court and fully make use of her/his rights of audience.

One stumbling block for virtual hearings has been the question of witnesses and cross-examining them.

Sometimes, and this is the case, the physical expressions and characteristics of witnesses as they are being examined (which is a way to determine the strength of their evidence) is lost during video conferencing. The alternative is already there in Indian law. Both the Code of Criminal Procedure, 1973 and the Code of Civil Procedure, 1908 allow for witnesses to be examined by commissioners appointed by the court to take evidence. A local court commissioner may physically record the evidence and send the record back to the court. This way, the court may proceed to hear arguments and pass judgments. In exceptional cases, when a commissioner will not suffice, a witness may be called to appear before the judge. But this need not be the case all the time. If the cost of physical infrastructure reduces, more judges can be hired at the lower levels. Further, since transfers and appointments will no longer require a judge to shift their residence, many more advocates will be willing to take up judgeships and perhaps vacancies in the high courts may finally be filled. Moving to a largely virtual system has long term benefits for the judiciary, advocates and the public at large. It is hoped the Supreme Court, when it decides to reopen courts, will take a long view and use the lockdown as the impetus for long-term change.