Is it now Virtual Courts v. Open Court System?

From the Supreme Court Advocates-on-Record Association to the Gujarat High Court Advocates Association, many lawyers' bodies across the country have expressed the difficulties faced by lawyers during hearing through virtual courts.

Recently, Justice Dr. DY Chandrachud had also admitted and acknowledged that virtual courts cannot fully replace the open court system. Recently retired Judge of the Supreme Court Justice Deepak Gupta has also expressed similar views.

In the first week of May 2020, the Supreme Court issued a press release stating that ‘Virtual Courts Not Antithetical to Open Court System’. This is true in principle. Thereafter, in the second week of May, the Supreme Court devised an e-filing procedure as well as standard operating system, which is commendable and well structured.

However, is the same possible at the lower level? I would like to show the other side of the coin, in respect of situation at the High Courts and subordinate courts.

Even if virtual courts are not directly opposed or contrasted to the open court system, it can stay only for the time being and cannot take the place of regular hearings. Although co-existence of both cannot and should not be opposed by the legal fraternity, some ground realities must be taken into account. These are not only technological challenges, it is much more than it. This resistance is not for the sake of resistance, but to find out a better way to operate the system.

The first and foremost reason is that at present, virtual courts are not accessible to advocates who are practicing in the Indian courts with their limited resources and inadequate means. We are still in a process of technological advancement. Besides, at many places, there is still a problem of internet speed. Even in a developed state like Gujarat, links to virtual hearings are often disrupted. Even a Delhi High Court judge recently acknowledged that though there was no problem of internet speed at the. judges' end, some problems occurred on the side of advocates.

Secondly, almost 50% of advocates are technological challenged; they never learned how to use computers, as no such need arose till this time. It is very difficult for them to immediately switch over to this new system of virtual courts. In the entire country, only a handful of advocates have well-equipped offices and big residential houses with another office. Many are still struggling to get a table in the compound of the district court complex or in city civil courts’ complex. Some advocates do not even have computers or laptops.

Thirdly, at present, our legal system is not adequate to adopt the concept of virtual courts, as even an open court system is unable to cope with the huge backlog of pending matters. How can the virtual courts suddenly magically dissolve the ever-present problems of arrears, except after imparting proper training to judges and the staff at the lower courts?

Six senior advocates of the Bombay Bar Association recently wrote a letter to the Chief Justice requesting the start of full-fledged physical hearings in view of the increasing arrears. The functioning of virtual courts is limited to urgent matters and only for two hours a day.

No doubt, the infrastructure at the lower courts has improved a lot in the recent decade. But except in New Delhi and few other metros, judges in other regions are completely unprepared and ill-equipped in terms of staff and resources in hand.

Fourthly, though virtual courts are not mutually incompatible with the open court system, people have not been taken into confidence. The courts are working for litigants. For litigants, who mostly come from rural areas, it is very difficult to understand that their case is disposed of without their advocate going to court. Though virtual courts may be comfortable for some of the advocates, the clients are still not ready. Consumers of justice have been totally ignored in this entire process.

Fifthly, the current system does not inspire confidence in the people of India whose cases are pending since many years. For the Supreme Court of India, the Draft Rules prepared by Senior Advocate Shyam Divan might be implemented. High Courts may adopt the same as per their requirements, but for the lower courts, it takes minimum of 1-2 years to make it workable. Our fine words, fair logic and enthusiasm for virtual courts does not invoke the familiar faith in present system, as litigants have yet to understand it fully.

Sixthly, virtual courts can be more exploited by the governments, corporates, legal tycoons and wealthy law firms than ordinary advocates. Hence, even if the Supreme Court wants and wishes to start virtual courts in India on a permanent basis, it ought to have begun by percolating technical training to the lower judiciary i.e. to taluka courts and district courts at the bottom. The confidence of the people needs to be earned and gained from the grass root level. If they feel satisfied, then, for the upper level it would come easily.

Thereafter, nobody would ever hesitate to welcome, accept and act as per the necessities of a fair adjudicatory process before the virtual court system. But have we ever collectively examined the ground realities prevailing in the small town courts and at taluka level judiciary?

In most of the High Courts today, no virtual machinery is so well equipped that the system can be implemented immediately. For example, in theGujarat High Court, the Chief Justice had relaxed the norms in the last week of April 2020 forhearing of fresh and some urgent pending matters. But the urgent cases filed by the concerned advocates were so much that the Registry could not handle it for paucity of staff,

The President of the Gujarat High Court Bar Association had expressed his strong displeasure at the fact that only urgent matters are being taken up and requested the Chief Justice to make High Court fully functional through video conferencing. But till now, nothing has been heard from the authorities.

Another point to note is that High Courts are Registry-driven and the Registry can never feel or share the compassion for justice like judges and lawyers fo. If in a state like Gujarat, virtual courts concept is yet to be accepted by most of the advocates, then, in other regions of the country, it will take much more time to digest fully.

Lastly, it is good sign that the Supreme Court rightly understands that efforts should continue to strengthen the roots of the virtual court system, but focus should be on the litigants’ satisfaction rather than the advocates' increased appearances. The litigant is the lifeline of this entire legal system. The Judiciary is the strongest pillar of democracy, but it stands because of litigants' faith in it. At present, the litigant has no chance to see what happened, how it happened, and when it happened, because no link is sent to him/her. Even if in the future any link is established, then also, poor litigants will not be able to access them for lack of resources.

The author is an Advocate practicing at the High Court of Gujarat and a Visiting Professor at the Institute of Law, Nirma University, Ahmedabad.