“Justice delayed is justice denied”. This maxim holds true more than ever now. India has been on lockdown since March 24, 2020. Of the three pillars of the democracy- Executive, Legislature and Judiciary- it is imperative that the third pillar of democracy namely the judiciary evolves to function by embracing new manners of dispensation continually and effectively of justice. Covid 19 has ensured that while there may be no radical shift in the substantive laws per se, the dispensation of justice is changing.
Indian Courts in Covid 19 times
In these abruptly changed times, Indian courts have quickly taken to electronic filing and virtual hearings without the physical presence in the court room and for that matter the court room itself.
Between between March 24- May 6, 2020, Supreme Court of India has passed 59 orders according to the search of cases on the official website of Supreme Court. Many of these judgements are those that had been heard but had been reserved for orders. Recently Mr. Justice DY Chandrachud stated in an interview that e-filing in Supreme Court is going to be going through a radical change. The e-filing module is being tested for its stability and is at an advanced stage. It is just a matter of time when Supreme Court will also start doing virtual hearings for substantive matters.
Practically all the High Courts in India have been conducting virtual hearings. In particular, Delhi High Court (DHC) has been quick study and has moved towards virtual courts quite smoothly. Possibly, this is because, many judges and most of the courtrooms in DHC are already paperless. As per practice directions, all cases as filed are scanned. DHC has also been providing CDs of files instead of spending time and money on photocopying documents.
DHC on March 23, 2020 issued practice guidelines and started online hearings on March 25, 2020 i.e. one day after country wide lockdown. Initially DHC was taking only “extremely urgent matters” such as issues pertaining rape, juvenile justice, domestic violence etc. Post April 21, 2020, DHC has increased the ambit from “extremely urgent matters” to “urgent matters” which now include other matters. As of May 5, 2020, DHC has passed 89 orders all vide virtual hearings.
DHC heard on 28.03.2020, a writ filed by couple of lawyers against Netflix claiming that a programme on Netflix had defamed lawyers as a class. After hearing all parties in detail, the DHC declined the interim injunction vide a speaking order dated May 5, 2020. This is indicative that the DHC has started to address different kinds of matters. This is sign of things to come and indicative that Indian courts have quickly got comfortable with virtual hearings
Initially only one Division Bench and one Single Bench were sitting on alternate days. With successful experiences, as of now, DHC has two Division Benches and six Single Benches sitting on all the working days.
The DHC procedure for filing and hearing is quite straightforward through a two-tier weblink. Once a party files a case, the Registrar of High Court looks at matter and lists the case before the Court after clearing of objections and depending on urgency of the matter. Thereafter, a link is shared with the parties concerned and the virtual hearing takes place. For those litigants and advocates who lack video conferencing facilities, DHC has set videoconferencing facilities in the court complex. Delhi District courts, under the supervision of DHC, have also been directed to set up requisite facilities.
Indeed, certain formalities and decorum have to be followed. The judges and lawyers are required to be in the proper uniform. Incidents such as the one before the Rajasthan High Court where one of the lawyers was appeared in a vest cannot be tolerated. These incidents have to be avoided and the respect towards the bench and the justice needs to be maintained.
Lawyers also do not seem to be having much difficulty in filing and arguing cases over video conferences. Though there has been some opposition from the lawyers on grounds that not all lawyers can afford to have video conferencing facilities or fast internet. A possible resolution could lie in the manner in which Indian Intellectual Property Office (IPO) functions. At IPO both physical and electronic filings and hearing are available at the choice of the parties.
For intellectual property attorneys, video conferencing and virtual hearings is not a new phenomenon. At least for the last couple of years the Indian IP office has been conducting e-filings of cases and virtual hearings. In most of the world, majority of intellectual property hearings before the IPO takes over telephone and/or video conferencing. Considering that IPO sets a specific time and date for hearings, this allows the IPO officials, attorneys and clients be prepared and certain about the hearings. This makes the dispensation of cases much smoother, faster and cost effective.
Several other countries have already been conducting substantive hearings over video conferencing. Just a couple of days back Supreme Court of United States (SCOTUS) held its first oral argument in a trademark case between USPTO vs Booking.com. The Courts of England and Wales very quickly updated their practice directions to provide for virtual hearings. Similar guidelines were picked up by Dutch specialised patent courts in the Hague, who also recently conducted its first oral proceedings through a video link in a complex standard essential patent case.
The new normal?
While the thrill of making arguments in the physical presence of another party and resolving and delivery of justice without resorting to violence will surely be missed but in the scheme of things this virtual courts are the new normal.
Virtual hearings are good for several reasons. An easy example is that vide virtual hearings lawyers and parties based in different parts of the country and indeed world can be a part of the proceeding. This obviously brings down the travel cost for the clients and tremendously saves on time. Client can continue with their daily routines and plan their work accordingly instead of being stuck in the court all day. Virtual hearing automatically reduces the overcrowded Indian courts and thereby easing pressure on the court infrastructure.
Virtual hearings are always planned in advance and therefore can be conducted in more efficient manner. This will require assistance from the lawyers to strictly comply with timelines as provided by law and not indulge in delaying tactics. Without the assistance of the bar, virtual hearing could get reduced to a farce. Virtual hearings would be better if they function in the way IPO functions wherein the hearing is fixed for a particular date and time. In a profession where physical presence and court craft plays a large role, possibly the focus would be more on crisp writing, sharing slides and documents which ordinarily was difficult for litigants to share with the court. The concept of photocopies and multiple sets for different parties and judges will also help in reducing physical space, money and in larger scheme of things, the environment by reduction of carbon footprint.
There are some ground realities that must also be addressed. Access to justice cannot be denied in a democratic country. India has its own unique and peculiar issues. For instance, infrastructure, technological expertise and finances may not be available with every lawyer and litigant. There is a gap between urban areas and rural areas. Indian courts must avoid the shift from physical to virtual to not become a domain of a few select.
Another critical aspect that must be addressed is that justice should not be done but also seen to be done. Practically, all hearings are in open courts. Consequently, media, parties, students and anyone interested in the manner of dispensing of justice can be a part of the debates and discussions that take place in open court. Transparency is paramount in judicial function. Thus, matters that are virtually heard requires robust technology and means for any and all to be have access to the hearings. This would be the biggest challenge and needs to be handled sensitively.
As is with any change, there is resistance. If the change is beneficial should be tested on the anvil of changing reality. While virtual filings and virtual hearing are becoming a new normal, it must be remembered that virtual hearings are not to replace the physical courts but to aid the physical courts. A hybrid system is the need of the hour. The hybrid system will permit both physical and virtual hearing. This will address the needs of changing times and changing technology. Balancing rights is what Courts do best. In the meantime, will the mystique of courts fade? Only time will tell.
Author is a practicing attorney at Delhi High Court and partner at Vutts & Associates LLP an Intellectual Property law firm. The views of the author are personal. The views do not amount to legal advice and is only a viewpoint of the writer.