Virtual Hearings Or Physical Hearing In Courts - Which Way is Preferable to Indian Lawyers?

Introduction

The Outbreak of COVID-19 in 2020 has brought n number of changes in everyone's life. The daily busy life rustling on the roads and the continued pitter-patter has suddenly become quiet. For a moment it felt like the world stopped because of the lockdown that every human was put into however because of this drastic situation some fruitful and innovative things have also surfaced. It made our world digital quicker than any scheme or initiative. Every system be it government or private or any other turned on to digital platforms, with this going on our judicial system was no exception. With the whole nation in lockdown, the courts were also shut down because of the drastic disease which was affecting people at a very fast pace. Because of this, the Indian judiciary came to a halt but with the zeal to serve justice, our courts were held online and a proper system of virtual hearing came into existence.

COVID -19 and the situation of courts all around the Globe

Even in dire situations, justice should always prevail and so the judicial authorities all around the world have taken major steps to keep everyone safe and secure and also delivering justice to everyone.

Here, below, the example of some countries is given and what measures they have taken to serve justice while fighting this global pandemic.

India

The Apex or the Supreme Court of India has given directions for the further working of the court during the ongoing pandemic. The bench consisting of Former Chief Justice of India- Justice Bobde, Justice D.Y Chandrachud, and Justice L. Nageswara Rao issued a direction in the, In Re: Guidelines for Court Functioning through Video Conferencing during COVID-19 Pandemic Suo Moto Civil Writ Petition no.5/2020, regarding the measures needs to be taken by the courts to reduce the physical presence of all litigants within the court premises by adapting the social distancing guidelines. These guidelines were issued by invoking Article 142 of the Indian Constitution as an extra-ordinary jurisdiction. Also in the above-mentioned order, the district courts were directed to adopt virtual court hearings through modes prescribed by the concerned high court and to provide video conferencing facilities for litigants who lack resources.

United States of America

The National Courts of the U.S.A has introduced, The Coronavirus Aid, Relief, and Economic Security Act, Public Law No: 116-136, signed into law on March 27, provided more than just the fiscal stimulus, importantly Section 15002 allows the use of video conferencing in some judicial matters.

US Courts had a proper page dedicated to Judiciary Preparedness for Coronavirus which is updated frequently and includes a link to various federal courts to assess the individual steps being taken by the respective courts. The U.S Supreme Court, while in keeping up with the public health precautions recommended in response to COVID-19, also postponed all oral arguments currently scheduled for the March and April sessions. The Lower courts, like the United States District Court for the Eastern District of New York, have issued a number of administrative orders regarding the administration of justice. One such order encourages judges to conduct proceedings by telephone or video conferencing where practicable.

France

The French National courts were closed from March 16, 2020, with the exception of essential litigating including litigation relating to "correctional hearings for pre-trial detention and judicial review measures," "immediate appearances," "appearances before the investigating judge, and the liberty and custody judge," and "hearings of the sentence enforcement judge for emergency management." Other than the, essential matters, hearings have been postponed.

Singapore

Even before the COVID-19 hit Singapore, the Singapore National courts already had an existing practice in place that enabled the lawyers to make applications by video link. The Singapore court is also quite used to parties or witnesses appearing in court by way of video links and as far as the Supreme Court is concerned, hearings are continuing. Since the spread of COVID-19, the Singapore Court has implemented a justice continuity plan by dividing the judges of the High Court into two separate teams, respectively Team A and Team B. The High Court follows a system they made such that no judge from Team A can come in physical proximity or in close contact with a judge from Team B. As a result of this, there have been court proceedings with a bench of three judges where one judge attends by video link, In short, though the Singapore courts have taken measures to implement social distancing, these measures are only an extension of the pre-existing use of attendance by video link prior to COVID-19.

Australia

While keeping in mind the COVID-19, The High Court in Canberra had announced that, following the adoption of policies restricting travel and meetings and remote workplace arrangements, the High Court of Australia will not be sitting in Canberra or on the circuit for the months of April, May, and June. The Court has also mentioned that it will continue to deliver judgments and deal with special leave applications including hearings as necessary at individual registries and will hear any urgent matters that may arise by video link.

The Federal Court of Australia has announced that “Our counters are closed, but we're still working" and had also published a Special Measures Information Note, which sets out the arrangements made for the continuing operating of the Federal Court during the COVID-19 outbreak in Australia. These include to the extent possible, alternative arrangements such as hearing matters on the papers, by telephone, or by other remote access technology.

United Kingdom

In the midst of Pandemic, last year the government announcements have focused on the vital importance of the continued administration of justice in England and Wales and the national courts continue to operate, though with adjustments.

Most buildings of the civil courts currently remain open, but civil hearings are now being conducted remotely wherever possible. Physical hearings are only to take place if a remote hearing is not possible and suitable arrangements can be made to ensure safety. Civil courts have long permitted remote hearings in appropriate circumstances, but a new "Protocol Regarding Remote Hearings" was issued on March 20, 2020, to provide further guidance, including on the forms of remote technology offered and use of electronic documentation. The courts' technological infrastructure is also being rapidly up-scaled to support expanded utilization of telephone, video, and other technology (including Skype for Business, Zoom, and BT conference call).

On March 24, 2020, the Supreme Court conducted its first-ever remote hearing. The Supreme Court building has closed as it will be hearing all cases and delivering judgments through video conferencing until further notice.

What are the Pros and Cons of Virtual Hearing in Courts?

During the COVID-19 pandemic, lawyers, judges, and clients, all are trying to find a correct balance between having client cases heard and staying safe. Hence, the virtual hearing has been taken.

The concept of Virtual Hearings is not actually a new concept. HC’s across the country have favored virtual hearing whenever the judges moved between principal seats and bench. However, such hearings took place on the court premises, with the advocates arguing the cases through the facility made available in the courtroom.

Recently, many members of the Indian Judicial system has raised their concern regarding the virtual court hearings post lockdown. It can be said that many advocates and even the other authorities like the Bar Council of India are not satisfied with the virtual hearing of the court matters.

Merits of Virtual Hearing in Courts

• Virtual hearings are time savers as the meetings can be scheduled properly and even if there is a delay then the other involved person does not have to wait in the courts for long hours and they can manage their time in the comfort of their home.
• They are more efficient as the working has become easier. The process for documentation and other things has become more well order and planned.
• Virtual court system leads to more productivity. As Justice Chandrachud said, the work of twenty judges is now being handled by a single judge. It also enables the wider participation of advocates and judges.
• Traveling from far distances to courts is not an issue anymore as all the involved people can attend the hearing from any place. A lawyer can argue in one court in the morning and be present at another later in the day, travelling is not an issue anymore.
• Also, as the information is available on a real-time basis, the digital signing of orders ensures smooth and instant communication of bail orders.
• The biggest and most important merit of virtual hearing is that everyone's safe. Health is the most important thing and if one lives in a safe environment and if the courts are able to provide such an environment to the litigants, lawyers, judges, and every other person involved in the working of the court, then nothing can be said to be better than that.

Demerits of Virtual Hearing in Courts

• One of the most important concerns in the virtual hearing of the cases is that it is a new system and to get acquainted with it, it is taking a lot of time. Most of the lawyers are not satisfied with the online working of the matters.
• The next very important factor is that, in virtual hearing, it is very hard for a judge to effectively understand the body language of the accused or the victim or to determine the credibility of the witness. In the physical courts, it is comparatively easy for the judge to take note of the credibility of the witness through their body language; It is one of the psychological factors which cannot be made use of in the virtual hearing. There is also a huge risk of witness tampering as the authority cannot be aware of what is going on behind the screen or if the witness is being manipulated.
• There are technical issues like the network problem, availability of internet facilities in a particular area, the disruption because of the weak network, etc, which in turn leads to further dragging of the case and slowing down the process of serving justice.
• While most of the court sessions are public, however the same cannot be done in the virtual hearing also the very fact that the virtual hearing meeting passwords can be hacked or used by other than the involved person in a confidential case is a huge risk present in the virtual hearing of the courts.
• In a court hearing, many records like medical records, psychological evaluations, and other information are introduced in the court trials which remains confidential with the involved party only, however, there is a greater risk in the virtual hearing that such confidential records can be accessed by any unauthorized party which can destroy the privacy of say the victim or the accused involved.
• It is a costly affair, as the Chairman of Madurai Bar Association pointed out, Not all advocates carry modern smartphones, they are also further limited by the non-availability of unlimited data packs or broadband connections. He says though I have a modern handset but I do not have the data to spare for more than two hours of Video Conference. He also mentions that, when many advocates are struggling to make ends meet, they can ill afford to spend a premium on sophisticated handsets or huge data plans.
• There are also difficulties faced by the court staff. Court staff said that it is impractical to completely shift to the e-filing mode. There is also a question of transparency and accountability here.

Can Online Hearing ever replace Physical Hearing in courts?

During the virtual launch of a new e-filing system and judgment search initiative on 09 April 2021, the chairman of the Supreme Court E-Committee Justice D.Y Chandrachud assured that it has never been the intention to replace physical hearings with virtual hearings.

He also added that, the approach of virtual hearings was adopted only to make sure that justice remains accessible during the pandemic and that the Indian Judiciary is flexible to cater to the needs of its citizens.

Although, currently the courts prefer a virtual approach to handle cases that do not in any way mean that the physical hearing has lost its essence. This is a modern era where we are moving forward to become a more digital and technology-oriented nation.

Nobody can deny that physical hearings are part of the soul of our judicial system but with that, we are a country that can face any challenge and this is a very challenging time for our judicial system and it is acing it. Virtual hearing is an alternative option in a situation like we are facing today however it does have its own limitations and it is in no way a perfect replacement for the actual functioning of the court.

Another problem that is there is that India is a developing nation and it has just recently become a middle-income country. A country like ours cannot afford virtual hearing. For many people, a smartphone or a laptop is still a luxury.

In 2020, the Bar Council of India also addressed a letter dated 28-04-2020 to the former Chief Justice of India opposing the virtual hearing post lockdown period mentioning the wide gap between the resources available for video conferencing and e-filing with lawyers of a good background from rural cities as compared to that of an elite class of big cities. He urged that the virtual court system be introduced in a phased manner and the letter also mentioned that ninety percent of the advocates and judges are unaware of the technology and its nuances

For the upcoming years, there is no chance that the virtual hearing will replace physical hearing completely however whenever a need will arise, a virtual court system is a perfect alternative, and the approaches or systems for serving justice can co-exist.

Conclusion

Accessibility is a core function when it comes to the judiciary. The quality of adjudication in the courtroom does not serve any purpose if justice cannot be accessed by people in the first place. Though the current crisis is a great opportunity for the digitalization of Indian Courts as it can also help in reducing a huge backlog of cases pending before the court. In the present-day scenario, there are indeed many difficulties that will be faced in the practical application of virtual courts but it cannot be denied that it is a very efficient approach.

The Judicial system can opt for a combination of both physical and virtual systems. This would enable the courts to take the advantage of both worlds.