The LexGaze Weekly - COVER STORY

VIRTUAL HEARINGS: The Judicial Antidote for COVID – 19!

Ms Shriya Maini and Mr Vishesh Wadhwa

Jul 18, 2020

Issue 5

Technology has indeed come a long way since the days of the telegram. The impact of the sudden outbreak of the coronavirus pandemic (Covid-19) and the rapid spread thereof, tantamounting to a national lockdown has metamorphosized what we call the “New Normal”. At first brush, evidently, Covid-19 has indeed cursed all stakeholders in the legal institutionalized structures, be it lawyers, judges, litigants, investigating agencies, prisons. The sole silver lining that has emerged from the dark clouds, keeping the legal lantern aflame is the advent and usage of Video Conferencing (“VC”) hearings which are proving to be the perfect judicial antidote for redressal amidst COVID – 19.

India has recently proposed the E- Filing Model and the Hon’ble Delhi High Court 2020 Amendment Rules, grasping early – on that the Pandemic has coerced us to embrace the revolution, without having the opportunity really to ever completely rely once again on physical hearings ever. However, the world woke up to this insurgency much earlier, creating the Frankenstein’s monster well in advance. In 2015 itself, China introduced the ‘Smart Courts’ System which allowed for the entire litigation processes to be completely conducted online, including filing and service of court processes, pre-trial mediation, collection and presentation of evidence, preservation of assets, trial, judgment, enforcement, appeal, among other processes. Mutatis mutandis, New Zealand enacted the Courts (Remote Participation) Act in 2010 to allow usage of video conferencing (“VC”) for selective criminal court and tribunal proceedings. The popularly called AVL (Audio -Visual Link) technology allowed Courts to connect directly to prison booths both inter and intra country, making the entire system optional for parties or Judges to prefer e-hearings.

Four legal cum practical aspects of virtual hearings in dispute resolution require atomic deliberation. Firstly, digitalization is bound to abridge the huge pendency of cases before Indian Courts, proving to be the perfect panacea for the predicament of delayed justice. VC rooms have been installed within Courtroom premises in India for those lawyers who do not have access to fast and in-office internet facility. In England and Wales, more than 80 % of the country’s Court and tribunal caseload is handled remotely, without any reported mishaps. Secondly, dispensing with the requirement of physical presence would mean that parties would not have to travel miles to be present in person before Courts. This would inevitably tantamount to a cost and time effective litigation process for all stakeholders, be it the clients, lawyers and judicial officers. Thirdly, virtual hearings are perhaps, the only way to keep the doors for justice to be open right now. However, a defendant’s rights in a civil proceeding are less likely to be sacrificed in the name of procedural efficiencies and nuances of a VC hearing. On the contrary, bails, examinations-in-chief, cross-examinations and re-examinations are matters of magisterial discretion wherein physical presence of the accused could play a crucial role in the formulation of a prima-facie opinion as to the plausible determination of guilt (especially wherein charge sheets are yet to be filed) or formulation of opinions as to the reliability of evidence or veracity of witness depositions in Court. Fourthly, efficiencies of the online hearing system include reducing security risks while increasing access to justice for all, in effect decreasing potential harm and threat thereof, to prisoners and the public.

Interestingly, the Hon'ble Supreme Court of India in the case of State of Maharashtra vs. Dr Praful Desai {(2003 4 SCC 601)}opined that in light of Section 273 of Criminal Procedure Code, 1973, the term “presence”cannot be interpreted to only mean the actual presence of a person in any court, declaring that evidence could be recorded without the requirement of being physically present in Court in a situation where parties are located remotely, or cases where confidentiality is to be maintained, where there is an apprehension of danger to the life of any witness or instances where witnesses do not give their statements due to fear of getting entangled in court matters. Besides, a two-judge Bench in the matrimonial Transfer Petition of Krishna Veni Nagam v. Harish Nagam{AIR 2017 SC 1345}, opined that it is appropriate to use video conferencing (VC) technology wherein both the parties had equal difficulty mutually deciding a place of convenience.

However, the chief criticism of virtual hearings is that they are not open for “public viewing”. In Naresh Shridhar Mirajkar & Ors. vs. State of Maharashtra & Anr. {1967 AIR 1 1966 SCR (3) 744}, court hearings have been held to be as fundamental to our democracy and system of justice. Recently, in 2018, the Hon’ble Apex Court while hearing the case of Swapnil Tripathi v. Supreme Court of India {(2018) 10 SCC 628}, held that access to justice can never be complete without the litigant being able to see, hear and understand the course of proceedings first hand. The Court also accredited the principle of open court hearings to be mandatorily adhered to when Rules for live streaming of court proceedings are made. The Black’s Law Dictionary too defines an “open court” as a court to which the public has a right to be admitted. Currently, however, the links for a VC hearing facility are accessible only by the judges and the counsels representing parties, or at maximum the advocates whose matters are listed the same day before the Hon’ble Court. In the absence of open hearings, the proliferation of “uncle-judge syndrome” would reach new peaks, wherein favouritism and nepotism would rule the Bar and Bench, giving way to the procurement of briefs, listings and hearings of matters to the “chosen ones”. Additionally, the High Powered Committee set up by the Hon’ble Delhi High Court at New Delhi under the aegis of Hon’ble Justice Ms Hima Kohli is carefully scrutinizing urgent matters to be listed for the physical recording of evidence, inter-alia others. This cherry-picking of matters, in a piecemeal fashion is perhaps, not the best way forward in the long run, wherein a structured process and exhaustive criteria list would have to be devised by the black-robed men.

As young criminal lawyers belligerently convincing ourselves to embrace the new normal each day, we pour our hearts out herein to each of you budding lawyers, the Bench and the Bar, of course. We firmly believe that remote VC hearings ought to be streamed live on the Court websites forthwith for public viewing. Internet slags and the ability of the current web portals/applications (Cisco Webex, Vidyo Mobile App) to handle a limited number of viewers cannot possibly veil the fundamental principle of“justice must not only be done but seen to be done”. The IT Departments have to work in consonance with the Court staff (Registry) to work out a possible mechanism to stream live, in parallel for each courtroom, the Court proceedings to facilitate journalists to ensure fair and transparent daily legal reporting. Concomitantly, timelines for each case ought to be designated, for instance, fifteen minutes per speaker (depending on the number of parties in each case), in effect granting proportionate to one and all. This would also enable counsels to schedule their diaries well – in advance. Without sounding altruistic and too ambitious, virtual hearings could perhaps, one day help Courts eat into their own backlogs, proving to be a real blessing in disguise.

The views expressed by the authors are those of the authors and do not necessarily purport to present the viewpoint of LexGaze.

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