Video-conferencing in courts has shown how justice can be made accessible, affordable and speedy. It should be continued so that courts become “more a service than a place”.
By Parveen Kumar Aggarwal & Pareekshit Bishnoi
The halt in various sectors due to Covid-19 is slowly being eased and a series of “unlockings” are taking place all over India. Until now, the government had issued guidelines for Lockdown 5.0 and Unlock 4.0. But as lockdowns ease, it has revitalised matters, be it leading to a clean environment or optimum utilisation of technology, be it contact tracing, e-meetings of clients, e-filing of cases or e-hearings in courts.
Courts too have adapted to e-hearings in order to keep the doors to justice always open. This has had multiple benefits during this difficult time and should, therefore, be regulated and continued even after the pandemic fades away.
On declaration of the first lockdown in March 2020, the Supreme Court was the first to switch to e-hearings for urgent matters. On March 23, 2020, the Court issued a Standard of Procedure for advocates and litigants to handle urgent matters through video-conferencing. Since then, different High Courts, tribunals and district courts have adapted to e-hearing and disposed of a considerable number of cases through video-conferencing.
Recently, the Supreme Court in Prashant Bhushan & Anr (2020) noted 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 adaptation of courts to hearings through video-conferencing has led to several advantages in terms of time, costs and energy saving of both litigants (including witnesses) and lawyers who often travel long distances for hearings in different courts. This burdens them in terms of time and money. Under these circumstances, e-hearings can bring the needed mobility and cut costs.
In 1988, the Law Commission of India noted in its 128th report titled “Cost of Litigation” that these were “back-breaking”. The observations made therein still hold good as witnesses often wish to recuse themselves due to delayed litigation and costs. Similarly, witnesses (including expert-witnesses) travel for rendering evidence in different courts and the 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, illustrate the expenses in summoning witnesses which put a burden on the finances of a party or government. Under these circumstances, video-conferencing offers a cutting-edge solution.
The proponents of physical hearing in courts argue that lack of transparency and infrastructure facilities hinder matters. Pertinently, the Parliamentary Standing Committee on Virtual Courts in its recent interim report, dated September 11, 2020, also noted three digital divides access divide, connectivity divide and skill divide. But while the Committee found these factors constraining, they were not restraining the effort for targeted regularisation of virtual hearings.
Of course, multiple difficulties do exist. Open courts are essential for citizens to repose faith in the judicial system. Article 145(4) of the Constitution, Section 327 of the CrPC and Section 153B of the CPC call for access of the public to courts and delivery of judgments in open courts. However, virtual hearings are by no means inherently opaque or in violation of statutory provisions. Instead, it is the opposite of it. As the Supreme Court in its press release in May aptly observed:
“[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.”
Thus, virtual courts hold great potential in giving actual meaning to the terms “open court” and “transparency”. It has been time and again observed that “justice should be speedy, affordable and accessible”. The adaptation of courts to e-hearings will only add to the trust of people in the judicial system. Courts can evolve a mechanism to record proceedings and retain it in their archives and provide copies, if needed. This can help them attain the constitutional and statutory mandate of open courts in the true spirit.
Another concern raised by opponents of virtual court hearings is the low quality of internet access 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 broadband penetration is still low at 47 percent. However, it was only 27 percent in 2017. This exponential growth shows that this should not be a problem in times to come. Further, to combat infrastructural limitations, with the co-operation of the government, courts and bar councils/associations, more e-booths/e-sevakendras can be set up across the country for 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. It would, therefore, be ideal to have a hybrid combination continue e-hearings for some category of cases and physical hearings for others. Cases where miscellaneous or short submissions/arguments are to be made can be fixed for e-hearings. Depending on the facts and circumstances of a case, these matters can relate to issues of summoning 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/rejoinder, etc.
Pertinently, the recent Standing Committee report has suggested transfer of traffic challan cases, petty offences where summons can be issued under Section 206 of the CrPC, dishonouring of cheques, motor accident claim petitions from regular courts to virtual ones. Accordingly, courts can also divide their time between physical hearings and e-hearings or set up special benches for the same. Moreover, to give regard to the background of an advocate, availing of e-courts can be subject to the consent of both the advocates. To narrow down the skill divide, professional services can be engaged, webinars and seminars can be held and as the Parliamentary Committee recommends, computers can be introduced as a course subject.
To record evidence through video-conferencing, due regard should be given to the safeguards enlisted in decisions like Amitabh Bagchi vs Ena Bagchi, Sujay Mitra vs State of West Bengal (2015) and Twentieth Century Fox Film vs Nri Film Production Associates. A wholesome effect of these steps helps achieve an efficient and speedier judicial system.
It would be appropriate to quote Justice PN Bhagwati from National Textile Workers’ Union vs PR Ramakrishnan (1983). While stressing the importance of law and its need to adapt to development in technology, he had observed:
“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.”
Laws must evolve and practices must be upgraded if a society has to progress. This becomes more compelling when access to justice is a fundamental right. E-hearings must ensure that even citizens living in remote areas are not deprived of their right to contest their court cases. So e-hearings must be continued in courts even after the pandemic. After all, as the Parliamentary Standing Committee noted, a court “is more a service than a place”.
—The writers are advocates in the Supreme Court