The halt brought in various sectors by the novel virus Covid-19 is now being jiggled to open up the sectors. After a streak of complete lockdowns, a streak of ‘unlocking’ has now joined its hands with the former.
By Advocates Parveen Kumar Aggarwal and Pareekshit Bishnoi
Until now, the Government has issued guidelines for Lockdown 5.0 and Unlock 4.0. As a breather, the opening of various sectors is now forthcoming. These lockdowns make a short phrase ‘time teaches’ suit best to the present situation. And these teachings are interestingly manifold. The lockdowns have given us a panoramic view of multiple things. For example, the lockdowns revitalized the concern for a clean environment. Similarly, the lockdowns have brought forth optimum utilization of technology on multiple fronts. For example, the technology is used for contact tracing to e-meetings of clients, e-filing of cases, and e-hearings in the courts.
In the present article, the authors seek to discuss the adaptation of the courts to e-hearings so as to keep the doors to justice always open for the people. The authors make a case that e-hearings during this difficult time have highlighted multiple benefits and thus it can be regulated and continued even after the pandemic wades away.
Before discussing this, it would be relevant to briefly note that on a declaration of the first lockdown in March 2020, the Hon’ble Supreme Court was first to switch to e-hearings for urgent matters in India. On March 23, 2020, itself the Hon’ble Court had issued Standard of Procedure for the presence of advocates and litigants in court for urgent matters through video conferencing. Since then, different High Courts, tribunals, and district courts have adapted to hearing of cases through video conferencing. Now, with the easing of lockdowns and adaptability to e-hearings, the restriction of number and kind of matters to be heard through video conferencing has also been widened.
As far as numbers are concerned, recently, the Hon’ble Supreme Court in In Re: Prashant Bhushan & Anr., 2020 SCC OnLine SC 646, at para 67noted that “[t]he total number of sittings that the various benches had from 23.3.2020 till 4.8.2020 is 879. During this period, the Court has heard 12748 matters. In the said period, this Court has dealt with 686 writ petitions filed under Article 32 of the Constitution of India”. The Supreme Court has, on August 31, 2020, issued Standard of Procedure for resumption of physical hearings for limited number of courts and advocates. Apart from the Apex Court, the various High Courts, District Courts and Tribunals have also taken up and disposed of a considerable number of cases through video-conferencing. This adaptation of the Courts to hearings through video conferencing has brought forth several advantages in terms of time, cost, and energy-saving of both, the litigants (including witnesses) and the lawyers.
Often the advocates, litigants and other stake-holders travel distances for hearings in their matters in different courts in the hierarchy of courts. This is more palpable while talking of Supreme Court as it is located only in New Delhi. Similar is the case with Tribunals and Appellate Tribunals. The parties appealing and the counsels arguing often travel to and fro to long distances across the country. This burdens the stakeholders in terms of time and money. E-hearings can help reducing financial burden and save on account of money and time spent on travels.
The Law Commission of India back in 1988, noted the misery of costs in litigation as “back-breaking” in para 2.11 of its 128th Report titled ‘Cost of Litigation’. The observations made therein still hold true as witnesses often wish to recuse themselves from being called as witnesses due to delayed litigation and cost in terms of time and money. Similarly, witnesses (including expert-witnesses) travel for rendering evidence in different courts across the country whose costs are either borne by the parties or the government. Order 16 Rule 2 of the Code of Civil Procedure, 1908 and Section 312 of the Code of Criminal Procedure, 1973 are examples where expenses to be incurred on summoning of witnesses put burden on the finances of a party or government. Given the costs involved and such tendencies of witnesses, video-conferencing of court proceedings offers an edge-cutting solution to these long-involved issues.
To the contrary, contentions are raised that lack of openness and infrastructure facilities shows non-viability of e-hearings vis-à-vis physical hearing. It is argued that e-hearings have restricted access of courts to the public, in particular journalist and like groups.
Admittedly, open Courts are essential for citizens to repose faith in the judicial system. Article 145(4) of the Constitution of India mandates delivery of judgments by Supreme Court in open Court. Similarly, Section 327 of the CrPC and Section 153B of CPC calls for access of the public to the courts.
However, virtual hearings are by no means inherently opaque or in violation of the statutory provisions. Instead, it is the right opposite of it. The Supreme Court in its press release in the first week of May observed that
“[w]hat needs to be underlined is that the traditional Open Court system, in its physical manifestation, and new age Virtual Court System are not antithetical to each other; on the contrary, both systems could definitely co-exist, delivering deliver qualitative justice, wherever deployed in light of extant circumstances“.
Thus, the virtual courts instead hold an unbounded potential towards giving actual meaning to the terms ‘open court’ and transparency. It has been time and again observed that that “justice should be speedy, affordable, and accessible”. The adaptation of the courts to e-hearings will only further add to the trust of the people in the judicial system and will also water the aims of the above-said adage. The courts can evolve mechanism to record court proceedings and retain it in their archives and can provide copies. This can help courts attaining the constitutional and statutory mandate of open courts in true spirit.
Another contention raised by opponents of virtual court hearings is the low quality of internet access to the people of India and lack of infrastructure facilities in courts for e-hearings. It is said that online proceedings require a minimum speed of 2mbps/sec and upward which is available only with 4G users. Further, the Mobile Broadband India Traffic (MBiT) Index formulated by Nokia shows that though 4G constituted 96% of the total data traffic consumed across the country, yet the broadband penetration still stays at a low of 47%. However, to pertinently note, the broadband penetration has hiked from 27% in 2017. This exponential growth in reach of technology shows that this should not be a problem in the times to come. Further, to combat infrastructural limitations, with the co-operation of government, courts and respective bar councils/associations at different levels i.e. District, State, Centre, multiple e-booths can be set up across the country for the needy litigants and advocates. This will ensure affordability and accessibility to justice.
However, given the present circumstances, it would also be correct to state that e-courts cannot be a complete substitute for physical courts at least for the present and would be a virtual un-reality. This is neither desirable nor possible as physical hearings do hold advantages on certain aspects.
In light of this, the authors suggest a hybrid combination with continuation of e-hearings for some category of cases and physical hearings for the others in the whole hierarchy of courts in India. The cases where miscellaneous or short submissions/arguments are to be made can be fixed for e-hearing. Depending on the facts and circumstances of a case, these matters can relate to issue of summoning of parties, applications for joinder of parties, applications for amendment of pleadings, for corrections in judgment or decree, for permission to file/extend time for filing reply/re-joinder etc. These matters can also be classified depending on the nature of the cases, i.e. summons case, warrants case, quasi-criminal cases and civil cases. Accordingly, courts can divide their time in physical hearings and e-hearings.
To record evidences through video-conferencing due regard should be given to the safeguards enlisted in the different decisions like Amitabh Bagchi v. Ena Bagchi, AIR 2005 Cal. 11, para, 10; Sujay Mitra v. State of West Bengal (2015) 16 SCC 615, para 4; and Twentieth Century Fox Film v. Nri Film Production Associates AIR 2003 Kant. 148, para 10. Moreover, to give due regard to the background of an advocate, availing for e-courts can be subjected to the consent of both the advocates.
A wholesome effect of these steps can lead to achieving an efficient, speedier, accessible, and affordable judicial system. These issues have been chronic issues of the Indian judicial system.
Here, it would be apposite to quote the words of Justice Bhagwati from National Textile Workers’ Union v. P.R. Ramakrishnan, (1983) 1 SCC 228 and reiterated in the State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601, a leading case wherein the Court held that witnesses can give evidence through video-conferencing. While pressing on the importance of law and its need to adapt with development in technology Justice Bhagwati observed as follows:
“We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind.”
The above-observation though calls for the law to adapt to the changing society yet it befits the present situation of the pandemic as well. The traditional system of open courts should also adapt to the changing technology-driven society. Laws must evolve and practices must upgrade if the societies are to progress. This becomes more compelling when the objective is to render justice more speedy, affordable and accessible and thereby strengthen the principle of Rule of law. Article 39A of the Constitution of India puts State under an obligation ‘to secure that operation of the legal system promotes justice’ and ‘to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities’. E-hearings ensure that even citizen living in remote areas are not deprived of their right to contest their court cases on account of their limited financial resources.
The words of Supreme Court in the matter of Swapnil Tripathi v. Supreme Court of India, AIR 2018 SC 4806, in the context of Live-streaming of court proceedings are very apt:
“Slow as we have been to adapt to the complexities of our age, it is nonetheless necessary for the judiciary to move apace with technology. By embracing technology, we would only promote a greater degree of confidence in the judicial process.”
The authors suggest that the path of e-hearing of cases taken by the courts due to present unavoidable circumstances should be continued in a regulated manner even after the pandemic. The proverb ‘opportunities lie in the adversity’ should be remembered and reform in terms of the continuation of certain judicial proceedings for e-hearings should be fully inculcated by the Indian judicial system.
-The authors are practicing Advocates in the Supreme Court of India.