Video Conferencing in Court Proceedings: SC Guidelines

The Coronavirus pandemic brought the world to a standstill, and a pall descended on the lives of everyone. The Indian Judiciary too underwent the “lockdown” phase to arrest the spread of the virus. After all, the legal profession is interpersonal in nature, necessitating the “rubbing of shoulders”. Nonetheless, law and order services are vital in every society and cannot be kept locked down indefinitely.

Furthermore, to prevent the unfair denial of justice, the courts followed the principle of “no adverse order”. It meant that the Courts would not impose any adverse order on the advocates/litigants not appearing for non-urgent matters.

The Apex Court, therefore, took to technology, to address the issues plaguing physical hearings. Though the idea of virtual hearings has been prevalent for many years, yet the pandemic allowed the Judiciary to embrace technology even further.

It has been almost a year since then, but the novel Coronavirus is yet to become lost in obscurity. Video conference hearings are still prevalent. Perhaps they will continue to be a part of the judicial process even after we completely beat COVID-19.

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Supreme Court Issues Guidelines

On 6^th April 2020, the Hon’ble Supreme Court issued the “Guidelines for Court Functioning Through Video Conferencing During Covid-19 Pandemic”. The Supreme Court exercised its power under Article 142 of the Constitution of India, declaring that:

• All measures adopted by the Supreme Court and the High Courts (collectively referred to as Courts) to reduce physical presence in the court premises are lawful. Moreover, these measures should secure the functionality of the courts while also meeting social distancing norms and best health practices.
• Video conferencing technologies for the functioning of the judicial system are permissible.
• Furthermore, every High Court can determine its very own set of modalities that suit the “temporary transition to… video conferencing technologies”.
• The courts should maintain helpline numbers to ensure the quality and audibility of the feed. Litigants and advocates will have the opportunity to vent their grievances regarding connectivity and clarity of call on the helpline.
• District Courts shall adopt the video conferencing modalities of their respective High Court.
• Additionally, the Courts must ensure that every litigant has access to proper video conferencing facilities. The Court can appoint amicus-curiae in appropriate cases and make the facilities available to such an advocate.
• Presiding officers have the power to restrict the entry of persons into the courtrooms, or the places/points for addressing arguments. The presiding officer can restrict the number of litigants appearing for a matter if the number of litigants is many. Nonetheless, a presiding officer should only prevent the entry of a party who has contracted an infectious illness.

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A Slight Modification

Incidentally, on 26^th October 2020, the 3-judge bench of SA Bobde, CJ, and Dr. DY Chandrachud and L. Nageswara Rao, JJ, while expressing their admiration for the successful functioning of Courts through the video conferencing, modified one of the 6^th April guidelines.

• Video conferencing in every High Court and the courts within its jurisdiction shall follow the Video Conferencing Rules of the parent High Court. These Rules will govern appellate proceedings and trials. Furthermore, High Courts without their own Rules can follow the model Video Conferencing Rules of the E-Committee, Supreme Court of India.

The Way Forward?

These guidelines are a major step forward towards integrating technology in the justice delivery system. It is interesting to note that the Hon’ble Supreme Court considered these guidelines in a remarkable light. The Court recognized how “modern technology” has become an enabler of “quality and effectiveness” in the “administration of justice”.

The practice of Online Dispute Resolution has already been successfully using technology to resolve disputes. It is high time that Virtual Courts begin using technology at a grander scale.

The Bench had also acknowledged the importance of access to justice. Access to justice is a necessary tenet to preserve the rule of law. It not only means that justice is done, but also that justice is ensured to be done. 

The adoption of modern technology should help the Courts function in a way that is relevant to the times.

Challenges of Video Conference Hearings

The real benefit of Virtual Courts will percolate down only when there is sufficient infrastructure in place.

One Hundred-Third Report on Functioning of Virtual Courts/ Court Proceedings Through Video Conferencing (Interim Report)

Attorney General K.K. Venugopal had put forth his concerns regarding the effectiveness of the system available for video conference hearings. There is some truth in the fact that a majority of lawyers are not receptive of technology. Additionally, there are the aspects of broadband strength and network speed.

Incidentally, the National Informatics Centre has identified

• broadband connection,
• device functionality, and
• conduct of people,

as vital for effective video-conferencing.

Broadband Connection and Device Functionality

It is an open truth that an increased number of litigants and advocates lack the proper infrastructure for videoconferencing. The Parliamentary Standing Committee (PSC) in its 103^rd Report (Report) has highlighted the plight of the litigants and legal professionals.

When deliberating the “success” of virtual hearings, the discussions between the Bar and Bench inadvertently focused on the effectiveness of videoconferencing. Thankfully, the present system of court functioning through video conferencing during COVID-19 has highlighted the “glitches” in the system.

The next step forward should be towards resolving the same. One of the necessities is to have a common virtual platform on a pan-India basis. Furthermore, India does not have a respectable broadband speed throughout the country. Moreover, there are various network types, eg. satellite and optical fiber, available in different states. Therefore, it would be imperative to find and invest in the most effective platform. 

Conduct of People

Another issue, which is often neglected or not accredited enough importance is the aspect of e-literacy. The NIC expanded on “conduct of people” to imply that when “one person is speaking, then others must put the device on mute”.

This presents a far more important question regarding the comfort of an individual to embrace the mode and medium of virtual hearings. There are many advocates and litigants who feel that virtual hearings will effectively tarnish the sheen of physical hearings. Virtual hearings, the current state of it at least, does not afford the luxury of time to legal practitioners, unlike in physical hearings.

Additionally, there is a fear that the adjudicator can ‘gag’ the advocate by muting his audio during video conference hearings. Alternatively, virtual hearings prevent the arguing counsel to gauge the temperament of the adjudicator and mould his arguments accordingly.

Monumental Strides and The Idea of Open Courts—Looking into the Future

Justice delayed is Justice denied’ but ‘Justice hurried is also Justice buried’.

One Hundred-Third Report on Functioning of Virtual Courts/ Court Proceedings Through Video Conferencing (Interim Report)

Advocates of physical hearings question the transparency of virtual hearings, often calling them “antithetical” to the open court system. In Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Ors., 1 1966 SCR (3) 744, the Hon’ble Supreme Court had emphasised on the importance of “Public trial in open Court”.

Incidentally, Swapnil Tripathi v. Supreme Court of India, AIR 2018 SC 4806, had re-emphasised the significance of live-streaming court proceedings for expanding the reach of justice. The Bench strove to balance myriad interests such as “administration of justice, including open justice, dignity, and privacy of the participants” with “the majesty and decorum of the Courts.

During the ensuing lockdown in 2020, the justice delivery system took monumental strides towards the future. There is now a 24×7 e-filing module, for filing cases online. Furthermore, the Gujarat High Court became the first court to commence with an “experimental” live streaming of court proceedings on YouTube. This move was expected to foster an open court connection and bridge the gap between the people and the Judiciary.

However, before virtual hearings and live streaming of court proceedings are adopted fully, one must realise the potential risks involved. The 103^rd Report also cautioned against the privacy and data security risks which third-party software or platforms may pose.

These third-party platforms can be subject to hacking and misuse which could tamper the sanctity of the judicial mechanism. Thus, the PSC has proposed that the Ministries of Law and Justice and IT collaborate and develop appropriate legal software.

A Promising Future

The PSC beautifully sets out the benefits and challenges of Virtual Courts (VC). Virtual Courts can significantly help reduce the expenditure involved in establishing Tribunals /Courts. Moreover, they are perfect for cases of Appeal and final hearings where the “presence of the parties/counsels is not required”.

Additionally, VC will help remove the obstacle of accessing justice for people suffering from a locational or economic handicap. Furthermore, this will “better promote the principle of Distributive Justice”.  Access to speedy justice and proportionate justice are a direct result of court functioning through video conferencing.

During COVID-19, while the world stood still, the Indian Judiciary has made some rapid strides towards the future. Though only time will tell as to how well technology can be ingrained into the Indian justice mechanism, the statistics are clear. In the first 100 days of video conference hearings, the Supreme Court had heard over 15,000 cases.

The High Courts and their district courts have also been working tirelessly despite the new normal. The future seems bright, and with the right technological collaboration, bridges between the public and the Judiciary will be built rather than burnt.

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