Overview: Lack of Resources as Challenge to Virtual Hearings

Profile of the Author: Sakshi Srivastav is a law student pursuing B.A.LL.B (Hons) from Rajiv Gandhi National University of Law, Punjab.

Introduction

The pandemic has hit our lives in an unprecedented manner. With a nation-wide lockdown imposed in India since March 25th, every operation in our country has been affected- judicial operations being no exception. However, to minimize the effect of the pandemic on judicial operations and to facilitate administration of justice in these extraordinary times, the Supreme Court while exercising its power under Article 142 [1] of the Indian Constitution, issued guidelines on directing court hearings via videoconferencing. [2] As per the guidelines that were issued in late March, the mechanism of virtual hearings had been set up in the Supreme Court and other High Courts for the hearing of urgent cases and e-filing of all the upcoming cases. The lockdown has notably eased now, nonetheless, the Supreme Court, in its recent order dated July 25, has decided to continue with virtual court hearings for the time being. [3]

It is not the time that virtual hearings are taking place in Supreme Court, though. Earlier, an attempt was made in the case of Krishna Veni Nagam v. Harish Nagam [4] to introduce virtual hearings in cases of transfer petition, however, this case was soon overruled in 2018 in Santhini v. Vijaya Venketesh [5]. This time the context for introducing this provisional measure may be different but it has nonetheless provided the Indian Judiciary with an opportunity to explore the system of virtual hearing. Given the fact that the pandemic may not end anytime soon, virtual hearings may continue being conducted for a long time. There are speculations that this system might as well be adopted as a regular justice delivery mechanism even post COVID-19. In light of this, it becomes essential to critically examine the suitability of virtual courts for the Indian Judicial system. While there are many challenges to virtual hearings in India, this article specifically deals with the issue of lack of resources.

Lack of Resources: An Impertinent Challenge

Ever since the lifting of major lockdown restrictions, the Bar Council of India (hereinafter referred to as BCI), along with other associations like the Supreme Court Bar Association, has been making requests to the Apex court for taking early steps in resuming physical court hearings. This demand is based on a series of problems that lawyers are coming across in virtual hearings. They are finding it difficult to present their arguments as efficiently as they used to in physical courts, the coldness of the new platform is bothering them.

More importantly, this demand is being raised due to the lack of proper infrastructure. While the Supreme Court and other High Courts have the facility of high-speed Wifi connections to ensure smooth and uninterrupted functioning of virtual hearings at their end, the same cannot be said for lawyers and litigants, who take part in such hearings from the premises of their homes or offices. Not having the facility of an excellent internet connection is still a high-end talk considering that many lawyers do not even have access to required gadgets like I-pads and laptops for availing the service of Virtual hearings per se.

The recent demand of the BCI, requesting the central and the state governments to provide free I-pads and Laptops to needy lawyers so that they can avail the set-up of the newly introduced online mechanism of virtual hearings and e-filings [6], indicates towards the gravity of the concerned issue. India is a country where gadgets like laptops and the facility of proper internet connection are a luxury to many. In such a scenario, virtual hearings seem unsuitable with respect to India as we are technologically not ready for it.

The BCI has also requested the Central and State governments to provide free Wifi connection in the premises of all the bar associations and has further asked the government to recruit trainers in all bar associations for making their members adept at virtual hearings and e-filing of cases. [7] The aforesaid highlights yet another major challenge to virtual courts. Most Indian lawyers have little to zero knowledge of technical know-how and are therefore quite inadept at availing such online facilities. While introducing a training course for all the lawyers can easily resolve the problem, the same has not been done yet and the technical inefficiency of many lawyers has become yet another hurdle, among many, in the path of virtual hearings.

Virtual Hearings v. Physical Hearings

I believe, the mechanism of Virtual courts may have scores of challenges in its path, but we cannot ignore their benefit. Once, the challenges posed by a lack of resources are addressed, virtual hearings can help in the efficient administration of justice as they significantly save the cost and time of everyone involved. Further, as duly noted by Justice D Y Chandrachud in his dissenting opinion in the Santhini case, things must evolve with the changing times and therefore, keeping the Judiciary bereft from modern technology is erratic. Courts must adapt to the new technology and make use of them in facilitating the judicial process. I believe the Indian Judiciary must make appropriate use of the opportunity provided to it by the pandemic to facilitate exploration and subsequent adoption of virtual hearings as a permanent Justice delivery mechanism. This, however, in no way should mean a total transition from physical court hearing to virtual.

As stated by the former Chief Justice of India Deepak Misra recently, virtual hearings are essential in today’s world but at the same time, the physical system of hearing can never be fully dispensed with. [8] Indian Judiciary is based on the British model of the “Open Court System”. Open courts are based on the idea of open justice wherein the public has access to court hearings. This system ensures better administration of Justice and has been mandated under Article 145(4) of the Indian Constitution. [9] There is no efficient way of achieving this system of operation through virtual hearings which primarily allow access to the judges, the counsels, the parties to a case, and recently few journalists in important cases. An open court demands more than that, which I am afraid can only be very poorly achieved, if ever, in virtual hearings.

Conclusion

I believe, modern technology in the form of virtual hearings is a boon to the judicial system and must be fully utilised, but at the same time, one cannot ignore the essence of physical court hearings. Keeping in mind the importance of both system of court mechanism, I believe, attempts must be made toward ensuring their structured co-existence.

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FAQs.

Q. Share an instance of virtual courts in the pre-COVID period.

Ans. The Chief Justice of Punjab & Haryana high court launched the first virtual court for handling traffic challans matter for the entire State of Haryana in the year 2019.

References

[1] INDIA CONST. art. 142.

[2] Kirit Javali, The Wheels of Justice Delivery Mechanisms, An Introspection, SCC ONLINE ( July 6th, 2020), https://www.scconline.com/blog/post/2020/07/06/the-wheels-of-justice-delivery-mechanism-an-introspection/.

[3] SC to continue with Virtual Court Hearings, THE TRIBUNE (July 25th, 2020), https://www.tribuneindia.com/news/nation/sc-to-continue-with-virtual-court-hearings-117844.

[4] Krishna Veni Nagam v. Harish Nagam, (2018) 1 S.C.C. 62.

[5] Santhini v. Vijaya Venketesh, (2018) 1 S.C.C. 560.

[6] Lydia Suzanne Thomas, BCI to approach Government over providing free WiFi, iPads, Laptops for needy lawyers to attend virtual hearings, BAR AND BENCH (Aug. 13th, 2020), https://www.barandbench.com/news/bci-to-approach-government-over-providing-free-wifi-laptops-needy-lawyers-virtual-hearings.

[7] Bar body seeks iPads, laptops for lawyers for e-filing, virtual hearings, OUTLOOK (Aug. 13th, 2020), https://www.outlookindia.com/newsscroll/bar-body-seeks-ipads-laptops-for-lawyers-for-efiling-virtual-hearings/1915306.

[8] Samanwaya Rautray, Physical court hearings can never be completely dispensed with: former CJI Dipak Misra, THE ECONOMIC TIMES (May 29th, 2020), https://economictimes.indiatimes.com/news/politics-and-nation/physical-court-hearings-can-never-be-completely-dispensed-with-former-cji-dipak-misra/articleshow/76089466.cms?from=mdr.

[9] INDIA CONST. art. 145, cl.4.