Justice behind closed doors
While the pandemic may have necessitated the setting up of virtual courtrooms, lawyers argue that India isn't quiet yet ready for a digital crossover
DIVORCE lawyer and author Vandana Shah is a fierce advocate of virtual hearings. The past five years that she has spent doing the rounds of courtrooms have only strengthened her stand. "I'll be honest, courts grapple with unhygienic conditions," she says. The washrooms are dirty, the files are laden with dust and it's far from a pleasant experience, she adds. When Shah was writing a paper for the United Nations in 2018, a delegate from the global inter-governmental organisation decided to accompany her to the court. "On seeing the place, she had one question: How does this not hamper the efficiency of people working here?" remembers the senior counsel with the National Commission for Women.
Advocate-author Vandana Shah
Little did Shah know that a pandemic two years later would make court hearings using remote participation, a reality. Since the lockdown was imposed in March, the Bombay High Court and trial courts in Maharashtra have been hearing only urgent matters. The HC works in two batches a day to hear urgent cases pending for admission. Currently, subordinate courts in non-red zone areas have been instructed to function with 50 per cent staff. In Mumbai and other red zones, the courts will function with 15 per cent staff strength for four hours daily. "The Coronavirus outbreak has thrust us into the 21st century," says Shah. In a country notorious for tareekh pe tareekh—India has a pendency of around 3 crore cases—she believes video conferencing for conducting hearings is prompt and effective, and might expedite the redressal of cases.
What constitutes an "urgent matter", though, is something that the court decides. "You have to file an online petition through ecourt.gov.in and then mention the praecipe, a form of letter addressed to the court in order to seek urgent ad-interim reliefs. If the court thinks that the urgency is merited, they will list the matter on the board," explains Ajinkya Jaibhave, advocate, Bombay High court and junior counsel, Union of India. Currently in Nashik, from where he hails, Jaibhave appeared for a virtual hearing for the bail application of an accused lodged in Yerawada jail on medical grounds. "He has high diabetes and blood pressure and is susceptible to COVID-19. I requested the court to release him on temporary bail till the time the situation stabilises. Other urgent matters include forceful eviction of tenants by landlords during the lockdown."
Young and technologically savvy, Jaibhave was able to make the digital transition seamlessly. The same cannot be said about other counsels, he says. It's not easy when the familiarity and rhythm that accompanies years of experience in the courtroom is abruptly snapped. The problems that come with a dodgy broadband service and technical lacunae only compound the problem. There are major logistical issues too, notes advocate Amit Karkhanis, partner at Kay Legal and Associates LLP, who claims to have had a mixed experience with virtual hearings. "Judges sometimes, don't have access to the latest technology and frequent disruptions in video conferencing mars the experience. On two occasions, when I appeared for a hearing, the judges had to get up due to technical difficulties. Unfortunately, it is not as swift as it should be."
That the lack of basic IT knowledge amongst lawyers, particularly in smaller centres, is leaving them rudderless was expressed by the Bar Council of Delhi on behalf of lawyers who were unable to avail VC facility owing to lack of technical know-how. Jaibhave says e-convenience centres are being set up in Nashik, which will facilitate the online filing of cases and also provide virtual court-setups for advocates to come and argue. "It is aimed at helping lawyers who are struggling with digital technology," he says.
Recently, the Chief Justice of India Justice SA Bobde said in an interview that justice can be equally done without robes or congregation, while commending the use of virtual tools. But, etiquette issues among lawyers has compelled the top court to make another statement urging counsels to be presentable. "We are all passing through trying times and hearings by virtual courts have become an order of the day. Yet, the minimum court etiquette in terms of what can be considered decent dress and background should be followed, given the public nature of the hearings," instructed Justice S Ravindra Bhat after a lawyer appeared in a T-shirt, while slumped on a bed during a hearing. The court was hearing a petition seeking the transfer of a matter in connection with maintenance and cruelty, which was pending in the Additional District and Sessions Judge, Principle Judge, Family Court, in Rewari, Haryana, to another court in Bihar. Advocates may wear a tie or white band ensuring proper decorum before the virtual courts, according to the guideline. Karkhanis says a crisp white shirt is also permissible.
Instances of gaffes are galore, not just in India, but other countries too. Recently during a bankruptcy hearing, a Texas judge declined McKinsey & Co.'s request to use teleconferencing to wrap up a trial after a virtual hearing on the request was interrupted by home security beeps and a barking dog. Karkhanis remembers his first hearing, when he heard a lady counsel identifying the judges in rough language while speaking with her son. "She didn't realise that the mic wasn't on mute," he recalls. Distractions during the hearing are painfully common.
While Shah and her ilk might vociferously root for virtual courts, there's no taking away the fact that they dull the experience of presenting a case. A trial is a form of theatre, and lawyers are like actors, she thinks. "We use inflection to demand attention and convince with our tone of voice. The delivery and gesticulation is important. It's a form of storytelling." Advocate Siddharth Jaiswal says he sorely misses the "vibe" of a courtroom. "When you are speaking—and even when you are not—you are picking up visual cues, expressions, posture and hand gestures unfolding around you. You adjust your argument depending on how the jury is reacting. In a VC, you aren't able to capture the nuances," he says.
Many believe that the adoption of video conferencing technology in court hearings might be limited to the duration of the present crisis given that we lack the necessary infrastructure. While it may be necessary at the moment, virtual courtrooms cannot replace the open court hearing system of justice administration, believes advocate Sanjay Singhvi, senior counsel, Bombay High Court. Presently, litigants aren't privy to the virtual hearings. "It's not just a question of hearing, but also about justice. You can't have justice done in a closed room. You need transparency and accountability in the justice system." He gives the example of panchayats in the village, which are held in the open so that the whole village can be privy. Unequal access to technology is also a factor that needs to be taken into account, adds Singhvi. "The bottom 50 per cent of the population are unable to access it. Hence, I don't think it's time to replace our court proceedings with digital technology for the long run."
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