Courts with hybrid model — the way forward

Like other sectors of the economy, the judiciary too could not escape the wrath of the pandemic. Administering justice is so essential that the courts could not remain closed for a substantial period of time. Despite the glitches and opposition, courts started functioning online.

The Uttarakhand High Court on August 16 issued a notification saying that it would resume functioning through physical mode from August 24, and no virtual hearing will be entertained.

A petition has been filed by the All-India Jurists Association, seeking declaration that right to participate in court proceedings through virtual courts via video conference is a fundamental right under Article 19(1)(a) and (g) of the Constitution. The plea filed through advocate Sriram Parakkat and drawn by advocates Siddharth R Gupta and Prerna Robin stated that this will end the idea of virtual courts which is seen as an affordable and accessible justice system observed by the e-committee of the supreme court.

The plea also sought a direction to abstain other high courts from denying access to lawyers through virtual hearings and video conference on the ground that there is availability of the option of physical hearing. Bombay, Madhya Pradesh and Kerala High Courts are also compelling lawyers to appear physically before the court. The plea also says use of information, communication and technology is a fundamental right available to every lawyer under Article 19(1)(a) and (g) of the Constitution of India.

The petition also placed reliance on judgements, Anuradha Bhasin v Union of India (2020) in which it was held by the Supreme Court that the right to access to the internet and various applications/websites is a facet of various Fundamental Rights and Freedoms available under Article 19 of the Constitution of India. Swapnil Tripathi vs Supreme Court (2018) that in the fast-changing globalised world, it is obligatory for the Indian Judiciary to use Information, Communication and Technology (ICT) in the most optimal manner to make Justice available at the cheapest possible price for one and all.

The Supreme Court issued a notice to BCI, SCBA and four High Courts (Uttarakhand, Bombay, M.P and Kerala) to take their opinion on the matters related to online hearing. The bench of justice L. Nageshwar rao, BR Gavai and BV Nagarathna were hearing the plea. Senior advocate Sidharth Luthra, appearing for the petitioner, submitted that some high courts were calling it a hybrid system for hearing but eventually allowing only physical court hearings. Senior advocate Vikas Singh, appearing for the Supreme Court bar association said they wanted only full physical hearing.

Advantages of virtual hearings

When the pandemic was at its peak and physical hearings were not possible, online hearings enabled the courts to ensure administration of justice. Justice Chandrachud stated that “apart from facilitating access to justice from remote areas, video conferencing is cost effective, reduces carbon footprint, and substantially reduces the attempt of employment of dilatory tactics by parties.”

The video-conferencing methods will also help in dealing with the issue of pendency of cases. It will significantly minimise the hundreds of transfer petitions that waste the Supreme Court’s valuable judicial time while also being cost effective for the parties. Video conferencing will also be helpful in recording the evidence. However, many judges and advocates have pointed out the flaws in the this system. The main argument put forth against the video-conferencing method is the connectivity issues throughout the country.

In remote areas, internet connectivity is a big issue. Many lawyers have stated that they do not have the financial capacity, especially during the pandemic times, to afford expensive smartphones and broadband connections. They also claim that they are technologically challenged and do not possess the expertise to operate the complex video-calling softwares.

There is no doubt that virtual hearings enabled the administration of justice during the pandemic times. However, we can’t fully rely on virtual mode and have to evolve a hybrid model for delivering justice.

Despite all the limitations, virtual hearings are our best bet to deal with the pandemic. As World Health Organization Chief Scientist Soumya Swaminathan recently said, Covid-19 may be entering a stage where it will become endemic. It was “very very feasible” that the situation may continue like what it is now, with ups and downs in disease levels in different parts of the country.

Therefore, the stakeholders of Indian Judiciary should take appropriate steps, such as development of infrastructure, and raising technological awareness, in order to make sure that all the hurdles regarding virtual hearings are effectively dealt with.

However, we must also ensure that courts calling themselves hybrid are also functioning as one.

The writer is a Delhi-based Law and Policy expert. Views expressed are personal