By Dr Swati Jindal Garg
Nothing in this world is constant but change. The Covid-19 pandemic has proved that human tenacity knows no bounds. What was unthinkable till a few months ago is the norm now and the speed with which the world has adapted itself to the new normal is proof enough that we shall overcome. The real question is, at what cost?
During these times when the judicial system is seeking the correct balance between hearing cases and staying safe, the courts started virtual hearings. This has reduced the number of cases heard per day as only urgent matters come up. Many people have turned to virtual platforms like webex, Cisco and other virtual conferencing applications to conduct meetings, mediations, arbitrations and other court matters. However, these virtual hearings are not error-free.
The screen is a window through which one sees the virtual world. The challenge is to make that world look real, act real, sound real, feel real. Even though most claim that something is better than nothing and that virtual is as good as the real thing, the question remains whether we can actually make the virtual world look and feel as good as the real? Justice should not only be done but it should be seen to be done.
The biggest challenge confronting virtual hearings is that it becomes even more difficult for judges to control a virtual courtroom than a physical one. There have been many instances of advocates accidently turning on their videos and revealing them doing mundane tasks like brushing their teeth, etc., during court proceedings. Recently, a video where a lady advocate was seen throwing files and shouting at the judge during a virtual hearing garnered many views.
Maintaining decorum in a physical courtroom is far easier than it is while everyone is sitting in the comfort of their homes/offices. The fear of reprimand/contempt is also higher in physical courtrooms than in virtual ones as it becomes more a case of out of sight is out of mind. Virtual hearings are also often riddled with noise such as that of traffic, echoes and sometimes by the inadvertent mistakes of advocates. In one case where the advocate left his audio unmuted, participants of the virtual meet could hear him arguing with his wife. The judge had to shout several times before the advocate realised his mistake and muted the audio.
Another issue is that while it is not allowed to record court proceedings in physical courtrooms, they can be in virtual. Once the courtroom drama starts unfolding on the internet and becomes accessible to all at the click of a mouse, courts lose the sanctity and awe they inspire in the common man.
One of the biggest fears is that various personal records of a sensitive nature are introduced during court proceedings and maintaining their secrecy becomes quite a task once they are required to be shared online. There is always the risk of them being hacked on a virtual platform.
The impact that a virtual hearing has on the credibility of a witness’s deposition is also uncertain. It is hard to explain how important it is to see a witness in person and to watch how he reacts under questioning. A classic way of observing the credibility of a witness is to watch his body language. In a physical court, the judge can see the person and is more vigilant to his body language. In a virtual court, the judge can’t see a witness’s entire body, hence, it becomes difficult to judge anything beyond the words that are spoken. Little things like this can make it harder to determine if a witness is credible.
The physical presence of witnesses or the accused helps judges notice their demeanour, which plays a crucial role in criminal cases. It enables them to analyse non-verbal cues like facial expression and postures and to detect if the person is giving a false statement. But the same is not possible through video-conferencing.
Then there is also the issue of witness tampering. In a virtual courtroom, it is hard to tell if a witness is being coached through text messages or some other dishonest method, while the same can be ruled out in a physical courtroom. Advocates in lower courts also claim that cross-examination in a virtual court may not be as effective as in an open court hearing.
The Madras High Court Video Conferencing in Courts Rules, 2020, published in the Tamil Nadu Gazette last month dictates that cross-examination of witnesses or an accused can be done only in the presence of a coordinator appointed by the court to ensure that their statements are not tutored.
The fact is that what many take as granted is still a luxury for most. Not all advocates have the privilege of owning high-tech smart phones. Most are also not capable of affording unlimited data packs that are offered by broadband companies. Issues also arise when the area where they are sitting does not have sufficient network. The vagaries of nature can also not be ruled out, hence it becomes increasingly difficult to hear arguments and keep buffering when an important hearing is going on. Another complication is that some advocates may want to bail out if the matter is not going in their favour. In such cases, they plead that their connection is faulty. The decision now is whether to believe them or to give them the benefit of doubt. In both cases, precious time is lost and the innocent gets penalised.
Where many advocates are on the verge of destitution, it is cruel to expect them to spend a premium on sophisticated handsets or huge data plans. There have been demands from various bar associations that the government offer data and smart phones free to advocates as part of Covid-19 relief packages. But there have also been cases where some advocates passed on the same relief to their children for their school purposes.
Another challenge for advocates is that it becomes difficult for them to make their clients understand the work that has been done. Owing to the pandemic, execution of sureties in bail cases is done at the prison and the particulars also reach the prison authorities directly from court. Hence, clients who receive bail through video-conference think that the advocate has not done anything and sometimes refuse to pay his fee. This fact also is a cause of concern as the advocates feel that while their workload has increased manifold due to new SOPs every other day, the clients feel that it was all done at the click of a mouse and hence, their advocates do not deserve the fee quoted.
There is a rising tide of advocates who are fighting virtual hearings tooth and nail. Their claim is that when people can go to malls and gyms, then why not courts. Time and again, the apex court has said that if schools and offices are open, then where is the justification for courts to remain closed. Physical hearings are also said to have an upper hand on virtual hearings as they include small nuances of the trade that are lost in the virtual medium. An advocate gets to understand the mood of the judges and stands a better chance of convincing them during physical hearings. However, online hearings create a psychological pressure on both the advocates and judges. Most of the judges have also admitted that they lose patience during virtual hearings and this affects their performance. There have been instances where judges have stopped work for the day due to the fact that the internet connectivity was extremely poor and it was affecting their quality of work.
While many claim that virtual hearings will never equal court hearings and are an eyewash, it cannot be disputed that they have been the only solution during this pandemic. The government needs to identify and develop the type of infrastructure that would be required to support virtual court hearings after taking into consideration the requirements of various players in the field. People and litigants who are having a problem accessing the digitalised judicial system can be imparted training sessions. Creating awareness around e-courts can help people know the facilities.
Maintaining proper records of e-file minute entries, notification, summons, warrants, bail orders, order copies, e-filing, etc., for ready reference will have to be looked into and concentrated efforts need to be made to ensure that security is not compromised. Rome was not built in a day and yet here it is. Virtual hearings have a long way to go before they are accepted willingly as an option and not as a need.
—The writer is an Advocate-on-Record practising in the Supreme Court of India, Delhi High Court and all district courts and tribunals in Delhi