The jury is still out but SC shows the tricky path to virtual justice

Lawyers point out the excellent work being done by the SC registry to ensure a smooth process until the hearing. Many say the virtual system has made it easier for them to appear at different fora on the same day
Following the Covid-19 outbreak in India, the Supreme Court (SC) in March passed an order directing various subordinate courts to shift to video conferencing, giving rise to a system of virtual hearings. The object behind this was to ensure that the delivery of justice goes on unimpeded even during a pandemic. However, the experience of various stakeholders after around 90 days of virtual court hearings has been varied.

The introduction of what one may also call a “virtual court” is not a novel concept. The SC has been taking steps towards digitising the justice system, more so over the last eight years. Various judgments of the court have helped integrate new technology in the system. By 2019, 488 court complexes and 342 jails had a video-conferencing set up, according to Daksh India.

India’s isn’t the only jurisdiction that turned virtual during the pandemic. The US, the UK, Australia, and Canada are among those which have adopted such a system.
According to registry sources, the Supreme Court has heard over 7,000 cases, so far, virtually. “Around 10-15 matters a day per Bench per court are listed in the SC, as compared to 60-70 matters before the lockdown. Multiple Benches sit every day in the apex court,” says advocate Divyansh Hanu.

However, unlike developed countries, India may not have adequate resources to step up the online shift. “One must not have a myopic view restricted only to metro cities. There are many who do not have the bandwidth to engage in video-conferencing. Investing in apparatus alone could cost someone upwards of Rs 1 lakh,” says Aditya Parolia, partner, PSP Legal. Recent reports by Internet and Mobile Association of India, along with Nielsen, peg India’s internet penetration at just 40 per cent.

Besides lack of bandwidth, litigants and advocates from affluent backgrounds appear to have trouble with the software. In India, courts are using applications, such as Vidyo and Cisco WebEx.  “When all lawyers log in with video and audio, streaming slows down,” says Dhruv Suri, partner, PSA Legal.

Many lawyers complain about their issues not being heard properly as it is standard procedure to mute all parties unless ordered by a judge. “This has resulted in adverse orders being passed against litigants while the counsel is trying to object,” says Sonam Gupta, partner, Bharucha & Partners.

For litigants, several issues have cropped up. The manner of listing is based on the urgency of the matter. The procedure for deciding that is opaque. According to recent statistics, India has over 35 million cases pending in various courts.

The situation in district courts is worse. 

Experts point out many of these lack infrastructure, besides the sheer workload acts as a roadblock. “While interlocutory and bail applications can be dealt with online, cross-examination, recording of evidence, etc, are extremely difficult over video-conferencing,” says senior advocate Arvind Datar.

With third-party apps being used to facilitate hearings, many have privacy concerns, too. Sonam Gupta says the National Information Commis-sion and the law ministry must consider the threats posed.

Despite the lag and other difficulties, there are silver linings. Lawyers point out the excellent work being done by the SC registry to ensure a smooth process until the hearing. Many say the virtual system has made it easier for them to appear at different fora on the same day. 

“Since fewer matters are being taken up now, the ones listed get more attention,” says Reeva Gujral, partner at JS Law Chambers.

Though some say the system isn’t sustainable in the long run, others believe many features can be taken up and incorporated into regular courts. “We should have a study — what kind of cases can be taken up for virtual hearings? We could try with smaller cases or ones in quasi courts. Let’s be ready for a system where 30-40 per cent cases are electronic,” says Datar.

Others, such as Justice D Y Chandrachud, have already clarified their stance, saying virtual courts cannot substitute physical ones.  But some lawyers say having more virtual hearings may result in saving many cost overheads — for the courts, litigants, and advocates. The jury is still out on the future of such as an arrangement, but virtual courts in India are here to stay.

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