When the lockdown to contain the spread of the coronavirus was announced in March, it came as a huge disruptive shock. Most offices and activities were brought to a sudden halt. But enterprises soon began to use internet and e-platforms to allow employees to work from home.
The Supreme Court also started hearings using the internet and e-platforms. Considerable work on this had been done by an e-committee headed by Justice DY Chandrachud. However, virtual proceedings were mostly restricted to urgent hearings in High Courts and Supreme Court. There was also a very selective, arbitrary method for deciding what constituted an urgent matter. In addition, most subordinate courts did not adopt this practice. As a consequence, the backlog of cases has been mounting.
It has been well established that judicial and quasi-judicial hearings over internet are feasible and work reasonably well. There are a few glitches that could be resolved as the system evolves. Incidentally, the Central Information Commission has been routinely holding hearings over internet with tapplicants and the officials being in different parts of the country for over a decade.
Virtual hearings in courts would result in lower costs for litigants and ease of operations for most lawyers. Instead of wasting hours in crowded court rooms, lawyers and litigants could continue their work in their homes or offices and spend just the time required for the hearing. Lawyers from small towns could appear even before the Supreme Court without incurring the unnecessary cost and time of travelling to Delhi. This could result in major relief to crowded court rooms and transport systems.
Some legal professionals claim that they find it difficult to participate in e-hearings. This is something that could be resolved with two to four hours of training. After all, even schoolchildren are using video chats and Whatsapp without any training..
There may be some types of cases where physical hearings are required. These are unlikely to be more than 20% of the total cases.
However, there is a resistance to change. According to Justice RC Chavan, vice-chairman of the Supreme Court appointed e-committee, all the requirements for virtual operations are in place and this would become a big boon for everyone. Without visiting courts, advocates can be registered on the portal, all filings can also be done by internet, affidavits can be affirmed electronically and all fees and payments can be done electronically.
Our current experience and the prospect of slowing down our already slow disposals of judicial and quasi-judicial matters should make us adopt virtual hearings in all judicial and quasi-judicial matters. There is no real impediment except in the mind. This is borne out by two instances mentioned by Justice Chavan, which I am quoting:
1. “E-filing did not pick up because of a big stumbling block- requirements by High Courts to again physically file the papers...Unfortunately, our court administration – the High Courts – do not realise that the cost of scanning and digitising is many times the cost of printing and providing to the presiding officer a printout. Scanning requires the files to be re-opened, getting the documents scanned, metadata entered, and again binding the files.
“Many courts have been outsourcing the work to agencies fixed by the State. But they do not realise that there is really no check if all documents have been actually scanned and correct metadata entered. This has to be done by the Court staff itself, and we know how careful they can be. If the Court staff has to be deployed for this purpose, if we are ready to spend on paying outside agencies for scanning and digitisation, why not spend the same time and money on printing a document here or a pleading there if the judge wants it? I must confess my failure to persuade administrations to see this.”
2. “Virtual courts and e-challan have been extremely successful in Delhi. Over a hundred crores in fines have been recovered. Citizens want to be honest in paying fines, rather than corrupting the machinery if we make things simple. Solution provided by NIC [National Informatics Centre] is free and has been used by Delhi. So we sought to replicate this elsewhere, including Maharashtra. One Shri Venkatesham was Commissioner of Police Pune and he started using NIC’s e-challan.
“A virtual traffic court was inaugurated at Pune by the Chief justice of Bombay high court. It was closed because the Police HQ instructed that the police should use one state one challan software, for which it is rumoured that the State government pays around Rs 17 per challan, and not NIC’s one nation software, which comes free. Crores of rupees of public money might have been paid to some company providing this tool which NIC provides free. But the transport department of the very same state government is comfortable with NIC e-challan and recently, the CJI [chief justice of India] launched a virtual court for transport department challans. It is enigmatic why the Government wants to pay a hefty price for something which comes free.”
Lives at risk
Most people have realised that the social distancing norms may have to be continued until mid 2021. Unfortunately some High Courts are trying to go back to physical hearings on an experimental basis. It must be understood that this is an experiment with human health and lives. The unfortunate part of this move is that virtual hearings are sought to stopped for many cases. There is no reason for the reversal to physical hearings.
We have the technology, the opportunity and the experience that validates the switch to virtual hearings for courts. At the very least, litigants and lawyers should be given the choice of whether they want to attend a hearing physically or virtually.
The Bombay Bar Association has requested the chief justice to continue the virtual hearings. I hope this very reasonable request is acceded.
Many other institutions have already moved to conducting their affairs virtually. Cabinet meetings and other significant meetings of the prime minister have been held with chief ministers and with other officials across the country. Video conferencing, meeting, and even socialising has become very well accepted. Schools have taken to the virtual classrooms with great enthusiasm and education experts say the response is very encouraging.
For the sake of the nation, let our courts and other quasi-judicial bodies accept and adopt virtual hearings and not go back to physical hearings. That would be a regressive move. Citizens and legal professionals must demand this change.
Shailesh Gandhi is a former Central Information Commissioner.