Evolution of a new era

The year-old human tragedy resulting from an unprecedented global pandemic has seen an emerging India converting opportunities out of adversity.

The functioning of the courts is a classic example of true Indian spirit - we have not only fearlessly fought unavoidable miseries without being deterred from discharging duties and functions, but have also utilized such adverse circumstances to grow and evolve.

It is heartening that courts across the country have not denied access to justice even during one of the harshest periods in the history of human civilization. Led by the example of the Supreme Court of India, all High Courts, lower courts and tribunals have continued to discharge their judicial functions uninterruptedly despite all odds.

There were some major glitches in the past which have since been ironed out. I do not dispute that some problems still remain and that the virtual experience is not as good as the physical experience.

One of the most amazing phenomena to have evolved out of this adversity is the emergence of a truly national Bar. Before the start of the pandemic, practically speaking, there was no single Bar for the nation. There were lawyers practicing in the Supreme Court and the Delhi High Court, lawyers practicing in respective High Courts and respective trial courts, and a small group of lawyers practicing in each of the benches of each of the tribunals. This resulted in a type of "concentration of matters", to use a softer expression, as against creation of vested interest groups.

The pandemic has given lawyers from all across the country - apart from the ones that usually appear before it - an opportunity to address the highest court of the country, thereby making the Supreme Court a truly national court from the perspective of both advocates and litigants alike.

There are several advocates - both young and not so young - who are unable to shift their professional and personal establishments to Delhi and are thereby denied an opportunity to practice before the Supreme Court. Many young lawyers, as well as established counsel from various High Courts, are now effectively addressing the Supreme Court without being required to either settle in Delhi or frequently travel to and from Delhi.

The young lawyers of the country are getting the maximum advantage and have benefitted from the virtual system, which has evolved as an institutional response to pandemic, driven by the judiciary’s zeal to do justice under all circumstances.

Similarly, lawyers practising in the Supreme Court and Delhi High Court are also frequently appearing through video conference mode before different high courts and before different tribunals, thereby opening new vistas for them, and enhancing their experience and exposure in various fields of law and forums.

The litigant is the most obvious beneficiary of this virtual system. In the past, a litigant approaching the highest court of the country was necessarily required to be dependent upon lawyers unknown to him. Now, however, he has an option of being represented before the Supreme Court by a lawyer of his choice, who knows his matter inside out, and has conducted the matter before other forums before the matter reaches the Supreme Court.

All litigants are/were not in a position to travel either to the Supreme Court or the seat of respective High Courts from wherever they are residing either due to financial reasons or other constraints. Even if a litigant travels and reaches the concerned court, he would be sitting at the back of the court room if he is lucky enough to get a chair to sit, or else he would wait for his matter standing in a remote corner of the court room, much beyond the reach of his own lawyer.

The virtual hearing system has opened up an amazing opportunity for a litigant to sit next to his lawyer and brief and assist him during the matter. The lawyer would also have an advantage of instructions of his client sitting next to him.

The level of confidence and psychological comfort of a young lawyer while arguing in an open court room in the presence of a huge group of lawyers listening to him as against his confidence and psychological comfort while arguing sitting in his chamber with his client can never be compared.

This entire process is a win-win situation for all - the lawyers, the litigants and even for the judicial institutions. The institutions get the best of the assistance from various parts of the nation, which by itself is an enriching experience and will result in the evolution of jurisprudence.

Hearings, conferences and briefings conducted through virtual means is
not only time saving for lawyers and litigants, but also has its own impact on the ecology. All stakeholders can avoid the problem of traffic congestions by reducing their travel and thereby reduce their carbon footprint. The system of virtual hearings is also, therefore, very eco-friendly. It may substantially contribute to the ever growing traffic problem as less and less litigants, government officers and lawyers will be required to commute either within the city or outside the city.

The question is not whether physical hearing is better or virtual hearing is better. The question is whether the virtual hearing system [either with or without physical hearing] results in the evolution of the profession as a whole and better empowers the main stakeholder of the entire process, the litigant.

Even if it is presumed that virtual hearings can never replace the effectiveness of physical hearings, stopping virtual hearings altogether would seriously jeopardise the legitimate rights of lakhs of litigants and lakhs of lawyers throughout the nation.

The world has already entered the digital age long ago, and it is high time the legal profession keeps pace with the changing and fast evolving world. The evolution should also be towards the future. The stubbornness of evolving backwards is always counterproductive.

Though I have practiced in all courts in the physical form over the last forty years and am accustomed to it, I believe that the virtual system has also had its advantages.

Further, my attention has been drawn to statements by the Bar Council of India and the Supreme Court Advocates-on-Record Association about a hybrid system soon to commence in the Supreme Court next month. The said system is not in line with what is currently in vogue either in the Karnataka High Court or the Rajasthan High Court. If I am not mistaken, the proposal is that an advocate must go in the Supreme Court, sit in a designated space, and then connect virtually with the court. This I think, is self-defeating. If one has to go the court compulsorily, then he may as well appear physically.

A word of caution. The western world is facing an unprecedented surge of the disease. India has to guard against the same. Physical hearings should commence, along with virtual hearings in a calibrated manner, after taking expert medical advice. One should not rush in needlessly.

Last but not least, the real evolution shall have to be in the technology and the method in which the virtual hearing administration of the courts is functioning. Fool-proof technology for virtual hearings, a liberal approach of the Registry in listing of cases speedily, and the evolution of a system
to take care of interests of young lawyers are the need of the hour, in absence of which the system of virtual hearings may not receive the success it deserves.

The author is a former Attorney General for India and is a Senior Advocate of the Supreme Court of India.