Coronavirus lockdown must catalyse widespread use of virtual hearings in Indian legal system
First Post
Dated: July 24,2020
Ajay Kumar
Reference:-
Dated: July 24,2020
Ajay Kumar
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.
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