Harsha Asnani & Roopadaksha Basua
The outbreak of the COVID -19 pandemic has brought work-life almost to a standstill. The Legal Profession is no exception to it. To ensure that the courtrooms do not facilitate spread of infections, the judicial authorities have restricted physical entry of persons and allowed hearing of extremely urgent matters only. In such emergent times, technology has come to the forefront to play its part in combating the virus. In an unprecedented move, the Hon’ble Supreme Court has allowed use of video conferencing for conducting hearing of matters, which require immediate attention. The initiative is aimed to enable the courts to function during the time of pandemic and ensure dispensation of justice continues unabated even during emergent times. The matters that require immediate adjudication such as involving threat to life and property should not go unaddressed during such times. In the words of the Hon’ble Chief Justice of India, “the challenges occasioned by the outbreak of COVID-19 have to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it.”
Modalities of Functioning
The Supreme Court and various High Courts have set up their respective mechanism / procedure for conducting hearings by video conferencing. Each Court has designated a video conferencing app like “Vidyo/Zoom/CiscoWebex” etc. for such hearing. The general procedure for e-hearing can be summarised as under:
The Advocates desirous of mentioning a fresh urgent matter are required to pay the requisite court fee through online mode using the Government Receipt Accounting System (GRAS).
Thereafter, they are required to inform the concerned Registry [one day (for Bombay HC) and two days (for Supreme Court) days in advance] stating the urgency along with a GRAS challan, Vakalatnama and duly signed undertaking that the Advocate will submit a hard copy of the proceedings with the Registry immediately after the lockdown period.
As far as pending matters are concerned, the Advocates are required to send the mentioning application/praecipe along with the soft copy of the matter.
The Advocates are required to mention their Bar Council enrolment/registration number, e-mail id and Phone Number in the praecipe and shall also attach a soft copy of their Photo ID.
Upon satisfaction by the concerned judge, the Advocates are intimated about the time slot for hearing through Video Conferencing.
The Registry shall share the link and PIN of the Video Conference Room with the Advocates concerned. This link shall be used only for video conference of that particular case at the allotted time.
The applicant’s advocate is required to give notice of the listing, serve a soft copy of the application and share the provided link with Respondent(s).
A digitally-signed authenticated copy of the order passed will be made available to the Advocates concerned at the email address provided.
The Courts have also laid down certain prerequisites for joining software VC based meeting so as to ensure uninterrupted connectivity
Adopting Video Conferencing as a Regular Practice
Use of technology especially video conferencing for conducting, though a very rarely used practice, is not an alien concept to the Indian judicial system. With the amendments in criminal law by introduction of Section 65A and 65B of the Indian Evidence Act, 1872, the Courts had used this opportunity to expand the scope of admissibility of electronic evidences and including video conferencing within its ambit.
The position was later affirmed by the Apex Court and various other courts by terming video conferencing as a vital tool for collecting evidence where the witness may not be conveniently or necessarily examined in court. The initiative was aimed towards establishing a cost-effective facility which can potentially avoid delay of justice. With the help of such methods, the Indian Legal System which is plagued with backlog and delay in disposal of cases can overcome many conventional impediments.
Various steps have been taken to provide computer related facilities in court complexes, court rooms and jails. However, despite rapid development in Information Technology sector and the promising future that use of video conferencing holds for the judicial system, its use has been very rare. Several reasons are attributable to such limited use of video conferencing ranging from lack of infrastructure in courts, inability of advocates to access such features, general mindset of the legal fraternity to resist such drastic change, perceived benefits of appearing in person etc.
It can be assumed that the immediate reciprocation of the judiciary to adopt use of video conferencing will lead to development of necessary infrastructure base in support thereof and it will be accessible even for remote judiciary. It is true that with the help of such methods, the Indian Legal System which is plagued with backlog and delay in disposal of cases can overcome many conventional impediments. Unwarranted delays and adjournments may be avoided. Advocates with personal commitments would be able to continue practice. Court hours can be extended (as time will not be spent for travelling) and the judicial system can finally move to a “paper-free” approach. However, it would require massive overhaul of the current justice dispensation system both in terms of infrastructure and mentality and such change has to happen across the board and in all stakeholders.
Certain issues which plague the videoconferencing system also have to be resolved. Even at present there have been concerns relating to efficiency of video conferencing. Allegations were that during the hearing of the Karnataka Kerala dispute, the matter was disposed of without advocates of connected cases being informed when the matter was taken up by the Bench. Also concerns are raised regarding glitches, call drops etc. while conducting hearings which hamper the flow of hearing.
The mindset of stakeholders also requires change. In a recent case witnessed in the Rajasthan High Court, the hearing of multiple connected bail applications was deferred on the ground that it may not be feasible to hear so many counsels at the same time. In another instance before the Rajasthan High Court, the Court had to point out concerns regarding the maintaining proper decorum and etiquettes in the court room since an advocate was consistently appearing in the matters wearing a vest. There is also a perception that conducting a case in person is beneficial. Eg. It is a common belief that for trials, the body language of a witness is as important as the answers and the expert cross-examiners depend more on the demeanour of the witness, to extract the desired deposition
Given the kind of challenges posed by the current pandemic, it might take longer than expected for normalcy to return. The present approach adopted by the courts to hear only urgent matters may have to change. The only recourse which then remains is the use of video conferencing as a matter of practice for other matters as well. In such a scenario, the judicial authorities would have to adapt, adjust and acclimatise with technological support and adopt methods of e-filing and hearing by video conferencing.
It has to be borne in mind that all systems are not perfect and they have to be made perfect. Similarly, there is scope of improvement in the video-conferencing system adopted by the Courts. First and foremost, a robust system has to be put in place. The system has to be tested by conducting trial runs. Once the technological glitches are ironed out, the system can be implemented progressively for certain category of cases. It has to be ensured that a uniform system is followed in all courts, at-least all courts within a particular State. The mindset of advocates and litigants should also change and it should be the duty of all stakeholders of this profession to embrace the change and put forth a more disciplined approach towards it. Further, the courts may segregate the matters into two categories where mode of video conferencing can be used. For example, for matters at the stage of arguments can be taken up through video conferencing and on the other hand, matters at the stage of recording evidence can be taken up through regular mode. The courts can also hear matters at the stage of final arguments through video conferencing methods. For maintaining brevity, the parties may be directed to submit comprehensive written submissions for such purposes.
Video conferencing is a very widely used mechanism in international arbitration. For such purposes, various arbitral institutions have devised mechanism and protocols such as the Seoul Protocol of Video Conferencing in International Arbitration etc. to conduct hearings. The same can be either adopted or taken as a guide for devising a customised mechanism and ensuring smooth functioning of the judiciary.
Within few days of being adopted, the Courts have emphasized that “there are advantages of hearing cases through video calls, and the fact remains that, it is less time-consuming, and it will be helpful to analyse the exact scenario of each case, so as to arrive at a definite conclusion”. The success of use of video conferencing remains unexplored. The Supreme Court and various other High Courts are revisiting the issues faced in conducting such hearings and continuously revising the models and procedures adopted by them so as to ensure that there are no glitches remaining. Not only the judiciary but all other stakeholders have to undertake proactive steps which include digitising the records and be more proactive in embracing technology. In the words of Justice (Retd.) B.N. Srikrishna “Remote working is a tried and tested model for arbitrations, and courts can adopt it very easily. Hiccups are only a mindset problem.”