By Keith Nongsteng
The world as we know is at a standstill. The COVID-19 Pandemic that has swept across nations has gravely affected all spheres of human activity and has forced the extant institutions of adjudicature to re-think their style and mode of functioning. The Indian Judiciary is no exception. The Hon’ble Supreme Court of India, sensitive to the needs and requirements of the common man during these unprecedented times, used its plenary powers under Article 142 of the Constitution of India to issue guidelines and directives to the courts of the country to switch to Video-Conferencing (VC) technologies to address urgent court-related matters. An interesting observation made by the Hon’ble Supreme Court of India in “Re Guidelines for Court Functioning through VC during COVID-19 Pandemic” (Supra) is that functioning via VC technologies cannot be seen as a temporary issue as ‘technology is here to stay.’ This however, is a mere obiter of the Bench and cannot be construed as the main substance of the aforementioned Order.
The Hon’ble Supreme Court of India has never been averse to necessary dynamism and it can well be argued that Their Lordships presiding in the Apex Court are beacons for the good of society at large. The process of incorporating Information and Communications Technology (ICT) in the realm of the Indian Judiciary started way back in the early 1990s. In 2017, with the introduction of the Integrated Case Management Information System (ICMIS), the possibility of e-filing a case and tracking its status online was made possible. According to the e-Committee, Supreme Court of India’s ‘Objectives Accomplishment Report of Phase II of the e-Courts Project, 2019’, more than 3000 court complexes and more than 16000 court rooms across the country have been digitised. The same report states that more than 3000 court complexes have also been provided with Video-Conferencing facilities for easy access to justice. Speaking from the infrastructure point of view, it can be submitted that the Indian Judiciary is on the right track. It can furthermore be argued, therefore, that the Indian Judiciary was already well prepared in advance to deal with unprecedented turn of events such as the accursed COVID-19 Pandemic, which has completely halted the normal functioning of the courts of the land.
COVID-19 has compelled sovereign states to re-strategise their approach to governance. It can no longer be ‘business as usual’. But question arises as to the synergy and effective streamlining between technology and Courts for future use under normal times. An important question from the Judiciary’s point of view is whether the current modus operandi should be practiced while hearing regular cases? Should the use of VC be a new normal for all Indian Courts? Let us dwell into some important aspects.
If VC becomes the new normal, there will undoubtedly be a steady increase in digital appearances by concerned parties for motion hearings, including evidentiary hearings. As a corollary to this, clients will no doubt insist on tech-savvy counsels who are well versed in the ‘nitty-gritty’ of virtual proceedings. It would not be fair and right to practicing advocates who do not have that kind of a technical know-how. Lakhs of practicing advocates and aspiring lawyers will have to take up a course specific to this issue and perhaps the Bar Council of India may have to issue guidelines for incorporation of a separate subject solely on ICT in Court proceedings in the curriculum of the country’s law schools. Such a position is cumbersome and will require years to materialize into optimal fruition.
An important and intrinsic principle of jurisprudence is the concept of public hearings or open courts. This principle is well established by a Constitutional Bench in the Naresh Mirajkar Case. Use of VC in regular court proceedings, in the opinion of many learned senior counsels, vitiates this established case-law and therefore, by extension, lightens the majesty of the courts. Some counsels argue that the use of VC with live-streaming would amount to open proceedings. But logically speaking, would this really conform to said principle of open court hearings? It was the Supreme Court of India itself, in Swapnil Tripathi Case (2018), which opined, “Sunlight is the best disinfectant”. True to this remark, it can be argued that public hearings can be the only mode to secure the confidence of the people and to repose their undoubted trust in the Judiciary. However, this is not to say that VC does not have its uses. It may be submitted in extraordinary cases, wherein anonymity is a necessary virtue to the client, use of VC should be mooted.
Presently, in Supreme Court of India’s VC proceedings, the parties to a case have been strictly directed to keep their microphones on mute at all times, except for when they are asked to make submissions by the Bench. In criminal trials, the physical presence is crucial. The body language of the accused and witnesses, their facial expressions, the tone of their voices cannot be obtained effectively via VC; that much is clear. Many learned counsels have put across their views that they are unable to put across their points very efficiently through a virtual medium. Real-time evidentiary submissions and oral arguments can never be put across cent percent by virtual mediums. The real emotions and passions of a court room setting are lost in the virtual world.
Recently, Manan Kumar Mishra, Senior Counsel and Chairman, Bar Council of India wrote a letter to the Chief Justice of India wherein he spoke of the people who are ignorant of the vicissitudes prevalent in the Indian Society. In his letter, he spoke of two extreme Indias, one which has no access to drinking water and the other which possesses private jets. In between these two extremities, lie many strata of society which are faced with various unavoidable inhibitions. He writes that those who are in favour of VC of Court proceedings in normal times are far away from the ground realities. His submissions do have merit in them. Factually speaking, it will be a Herculean Task to expect advocates to resort to VC in normal proceedings. Access to the corridors of justice as we know it would no longer be the same.
I commend the Hon’ble Supreme Court of India’s move to keep the channel of justice open through urgent case hearings, even when the whole world has been brought to a grinding halt. In Anita Kushwana Case, a Constitution Bench held that access to justice is a basic, inalienable right. Theoretically, however, if we are to look to the regular use of VC then we are looking at a very limited load of cases that can be dealt with. In a recent meeting with e-committees of High Courts, Justice DY Chandrachud, Chairman of the Supreme Court of India’s e-Committee, had stressed on the need to start virtual courts in all states to not only deal with traffic challans but also in all other summary violations. The Supreme Court must issue specific guidelines as to the types, nature, quality and quantity of cases that can be dealt through VC. Following this, the Apex Court must chart out a pragmatic course through which all counsels would be brought on board and which would not inhibit their practice.
Though the strides made by the Supreme Court with regards to use of Artificial Intelligence (AI) is commendable, it will however take years for the courts to transition to the next level. In the United States of America, computer-based kiosks have been set up, where members of the public can pay fines by credit cards, purchase forms, and even obtain a divorce. One can even plead guilty in a kiosk and have the relevant fine imposed there and then. Success rates to these, however, remains limited to this day. In India’s scenario, much will depend on how much the courts focus on handling the AI aspects and prioritization of funding. I will conclude my submission through an interesting anecdote of history that happened in the US. During the confirmation hearing of Justice Neil Gorsuch, the then Chairman of the Senate Judiciary Committee, Mr. Hatch asked the former a simple question – Can a two century old document (the US Constitution) apply to technologies that were not even imagined by the Founding Fathers? The learned Judge replied, “The technology changes, but the principles do not”.
(The author is a law student and is based in Shillong. His views should in no way be construed to be challenging the wisdom of the venerable Supreme Court of India. His views are based on the principle of fair comment.)