Birth pangs of virtual courts
Litigants will gain in the long run as digital justice will be faster and cheaper
On an average day set for hearing new cases, the Supreme Court used to hear more than 800 cases in 16 court rooms. That was till the lockdown was imposed unexpectedly in March due to the coronavirus pandemic. Now only some five virtual courts are sitting, and they take up a hundred urgent matters. The situation is similar in other courts.
While the health and education sectors have been frantically trying to meet the situation brought about by the coronavirus with some success, the policymakers in top judiciary were groping in the dark for four months now, including a laid-back vacation in between. The virtual court (VC) system functioning at present has been found to be deeply flawed and is assailed by the legal profession, represented by the Bar Council of India and several Bar associations. They have alleged that it is crippled by technical glitches, is opaque, violates the principles of open court and “basic structure”, favours the rich and techsavvy law firms and tends to bring in inequalities in the profession. It has impoverished many lawyers who are given doles by some Bar associations. Some are reportedly leaving legal hubs and migrating to their native places and even changing profession.
Justice D Y Chandrachud of the SC, who is piloting the digitalisation, has dissuaded people from the idea that VC hearings are “some sort of a panacea”. He admitted that “we had to resort to VC hearings because Covid-19 descended without warning and we had no other choice”. The SC has issued guidelines on virtual hearing. They involve simplifying the filing procedure, among other steps. They would take quite some time.
With 35 million cases pending in various courts, 65,000 in the Supreme Court itself, urgent steps should have been taken long ago. But the development was halting in the last decade. Videoconferencing in criminal courts started around 2003 and only in 2014 it became more prevalent, that too in prominent cases. The courts should now urgently set up special e-benches which should dispose of old cases where the issues might have lost relevance and parties might have given up hope. In a 2017 judgment, the SC itself had suggested this.
Litigants should welcome digital justice, despite the birth pangs. VCS are here to stay whether or not coronavirus succumbs to our prayers of various kinds. They will permanently change the judicial system. For one thing, they will eliminate long-winded arguments by arguing counsels who earn lakhs of rupees per hour. Virtual hearing and streaming it to public will force lawyers to be less verbose and theatrical. Judgments are likely to be shorter. The new paperless system will eliminate cumbersome procedures, and would protect forests as 11 billion sheets per year are reportedly used in court proceedings. The system will be cheaper, faster and more democratic, as all parties and even judges will be equal before technology. Litigants need not go to crowded courts or tribunals situated far away.
Governments will also gain as there would be no need to set up new benches of High Courts or the Supreme Court under political pressure. Artificial intelligence (AI) might reduce the need for appointment of more judges (another vexing issue) as AI might do some of their job better, without fear or favour.
It is the subordinate courts and tribunals, which presently lack basic facilities like stable tables and chairs, that will find difficulty in adapting to the brave new world. They have to deal with original documents, scores of witnesses and accused persons kept in jails. Video proceedings might make it difficult for the judges to read the minds of witnesses who are not physically present. Lawyers will find it hard to sense the thoughts of judges and spin their arguments accordingly. Their cross-examination will be devoid of sound and fury, whose exaggerated versions are found in the last part of thriller movies and novels.
Amid the turmoil caused by the future crashing through the roof, the filing of new cases has fallen in recent months. But they will bounce back in all courts when the virus emergency is over. Litigants are either waiting for return of normalcy or abandoning their rights. Those who lost faith in the system meanwhile will try to settle issues out of court or in the streets. Police justice will rise. Bounced cheques might float like autumn leaves and debt recovery will be outsourced to 56-inch re-possessors. If the route to VC and artificial intelligence is not cleared urgently, we might expect dark industries growing green shoots.