Coronavirus has pierced our illusion of certainty and control
– Chief Justice John Roberts
(United States)
The world is facing an unprecedented crisis by the COVID-19 pandemic.The lockdown has been causing a lot of problems to the general population. People faced a lot of problems adapting to this new lifestyle.The pandemic has brought the world economy down as it has hit every sector of the society. The legal profession is also badly hit without exception. The courts faced the same problems. The criminals did not stop during the lockdown period and the number of pending cases did not help the matters. Closing the doors of justice totally was not an option. The courts had to deliver justice to its citizen during this difficult period. But in this process they could not compromise with the safety of the judges, lawyers, employees and citizens.
In this hour of crisis, it will not be proper if Courts take an unilateral decision as to how the courts should function during a lockdown. This is the reason why regular consultations take place between all the stake holders during this period of the Pandemic. Courts are one of the main pillars of a democracy. Without Courts, democracy will fail. In order to help in the uninterrupted functioning of the Courts, technology has aided with video conferencing. Though laptops, smartphones, tablets, etc. have not reached the households of each and every lawyer in the country, a large part of the society has been covered.
For the portion of society that was not covered facilitation centres has been arranged for video conferencing facility. Recently, the Supreme Court has notified the setting up of video conferencing facilitation rooms in seven district Court complexes in Delhi. Supreme Court Video Conferencing Facilitation Rooms (SCI VC Room) have been set up in seven District Court complexes in Delhi in compliance with the directions issued by the Chief Justice of India SA Bobde. These rooms have been set up by the Supreme Court registry in coordination with the Delhi High Court to enable lawyers and litigants to join hearing through video conferencing from these rooms. These VC rooms have been set up in District Court complexes in Rohini, Dwarka, Patiala House, Tis Hazari, Saket, Rouse Avenue, and Karkardooma. The circular says that the learned Advocates and Parties-in-Persons/Litigants, desirous of availing of abovementioned Video Conferencing facility may send intimation through AOR, 24 hours prior to scheduled hearing on email id.
Therefore the pandemic can never be an excuse for complete shutdown of courts. However there has been connectivity problems in some areas. In this hour of necessity, video conferencing has been given a chance during the period of the pandemic. But it did not work out as planned. The judges, lawyers and citizens faced numerous problems during this process. “You are here, but we cannot see you, you are there, but not there.” said CJI SA Bobde while pointing out that at times, the audio link snaps so that either the judges cannot hear the lawyer or the lawyer cannot hear the judges. At one point in the hearing, the audio link was so poor that one could barely hear the advocates. One can argue that the physical representation cannot be replaced by video conferencing but we cannot turn a blind eye safety of judges, lawyers and citizens. The process of justice might face a hurdle in this dire times but if it ensures the safety of the people it should be implemented.
Video conferencing has a lot of benefits and one can imagine a day when it can be a part of normal judicial process. The Chief Justice stated that the ‘technology is here to stay’ which may indicate the intention of the apex court to make optimal use of the technology even after the pandemic. Income Tax Appellate Tribunal and National Green Tribunal has been reaping the benefits of video conferencing long before the pandemic.
But is the general public ready for the switch? Especially in the Indian context, not everyone is familiar with video conferencing technology. If we were to switch to video conferencing then the option for physical representation should be available to the people who are not comfortable with it. There is a digital divide in India.due to lack of access to smartphones or any other means of accessing the internet, lack of digital literacy, physical disabilities, poor network coverage, etc. being the contributing factors. If we were to switch to video conferencing fully then the doors of justice would be closed for a lot of the people.
The pandemic has forced the courts into adopting video conferencing but this can act as a pilot project and can be expanded upon afterwards. Needless to say if the courts do decide to dwell into this territory then detailed guidelines and framework of enforceable rules will have to be framed. For example, a provision on the online platform for the accused person and their lawyer to have private discussions which no one has access to, maintaining attorney-client privilege. United States and United Kingdom has a provision for such confidential communications. Further if a prisoner if made to appears not in an open court but on a screen and, within an enclosed space of state control, care must be taken to ensure that the prisoner is not being subjected to undue influence.Various third party video conferencing application have been found out to stealing the user information.
The switch is inevitable but it will not be easy. The physical presence of lawyers and judges are an integral litigation process in an adversarial system. If we were to replace this system that everyone is familiar, then it must be done in a manner that gives citizens and lawyers the confidence that even in a virtual court their case will be heard on merits and justice would be served.