Justice through Internet, the fear of 'coram non judice' and some interesting trivia

Solicitor General Tushar Mehta writes on other historical instances when judges defied the conventional norms of sitting in courtrooms and discharged their judicial functions from the places other than courtrooms.
Solicitor General of India, Tushar Mehta
Solicitor General of India, Tushar Mehta

In the wake of an unprecedented human tragedy in the form of the COVID-19 pandemic, the Supreme Court of India is maintaining its global reputation by keeping its doors open, and venturing into new vistas of justice delivery by conducting hearings through video conferencing.

The High Courts have followed suit. This mode of justice delivery may very well percolate to all courts in the country.

So far, the Hon’ble Judges are sitting together at a place other than the Supreme Court premises, while the lawyers sit at the place of their choosing and judicial adjudication takes place effectively.

Pictured are SG Tushar Mehta, AG KK Venugopal, DG NIC and Senior Advocate Vikas Singh attending a hearing conducted by a 3-judge SC Bench via video conferencing.
Pictured are SG Tushar Mehta, AG KK Venugopal, DG NIC and Senior Advocate Vikas Singh attending a hearing conducted by a 3-judge SC Bench via video conferencing.

However, with the technological advancement, there is a possibility of even Judges sitting at the place of their choosing while adjudicating issues through video conferencing. In fact it would be a very welcome step.

Judges of the bench may sit at different locations of their choosing and conduct the hearings while hearing the lawyers and litigants sitting at a place of their choosing. None of these places can be/need be either the traditional courtrooms or even a part of the court precincts.

Very broadly speaking, though the Civil Procedure Code, the Criminal Procedure Code and the Rules framed for the High Courts and the Supreme Court provide for the “seat” of the court, it does not provide for the “venue” (to loosely borrow the expressions used in arbitration law).

The interesting question is about the legality of a potential challenge to the proceedings on the ground that the adjudication happened neither in a courtroom nor even a place declared to be a Court.

To put it simply, can a litigant raise a challenge based upon the doctrine of coram non judice on the ground that neither the adjudication took place in the court room/court precincts declared as such nor the Judges and/or the lawyers even attended the Courtroom?

Though the issue appears to be a mere twattle, the ingenuity of a legal mind and the dauntless adventurous nature of some compulsive litigants can never be underestimated.

I, therefore, undertook a non-scholarly but an interesting exercise to find out from the leaps of history regarding some of the instances when the Judges defied the conventional norms of sitting in the courtrooms and discharged their judicial functions from the places other than the courtrooms. This kind of an exercise is refreshing as it punctures the pomposity, intellectual arrogance and scholarly hypocrisy often infecting the legal profession.

Traditionally this judicial conservatism of functioning only from the courtrooms appears to have its roots in the Magna Carta which ordains that the common pleas should be held “in aliquot certo loco” which may loosely mean “in a certain place”.

Magna Carta is a charter of rights agreed to by King John of England
Magna Carta is a charter of rights agreed to by King John of England

In England this “certain place” was in Westminster Hall for many centuries. This “certain place” had an unintended and unwarranted geographical sanctity attached to it. So much so that once when a practical proposal came to shift the court in the back room, a relatively warmer place, Lord Chief Justice Bridgman (in office between 1660 to 1668) did not agree finding it to be against Magna Carta and insisted that the “certo loco” cannot be changed even by few inches and if changed, all the pleases would be coram non judice.

The subsequent history though manifests a clear justice-oriented evolution in the concept of “certo loco” and the Judges have either issued orders or decided cases at places other the place designated as the formal courts housing conventional court rooms.

The most striking and amazingly unconventional discharge of judicial function is by Sir Lancelot Shadwell, the last Vice-Chancellor of England. He was the president of the Society of Psychrolutes, the qualification for the membership of that body being the daily practice of bathing outdoors from November to March.

Sir Shadwell had a routine of bathing every day, whatever be the weather, in one of the creeks of river Thames near Barn Elms. While so bathing and in a swimsuit, he is said to have granted an injunction on one occasion. In a similar way, Justice Hawkins once gave a decision on Brighton peir. There are some interesting instances of judges, lawyers and litigants travelling together in the railways and judicial proceedings are conducted.

Again, Lord Lyndhurst L.C. once heard an application for an injunction by one W.H. Bennet, a law reporter, in the English Opera House. The Lord Chancellor moved from the front of his box to the back, heard the application, and granted an injunction.

Early in the twentieth century Sir Samuel Evans, while recovering from an illness, delivered a verdict from his bedroom sitting on an arm chair nattily attired in his nightwear – perhaps a dressing gown but unfortunately, no video conferencing facility was available to capture the magic moment. Similar is the unconventional judicial decision making of Justice Huddleston B, who, being afflicted with gout, charged the grand jury at Lewes from his bed.

On the lighter side, it appears to be quite fair that if judges can sometimes sleep on the bench, why can’t they judge from the bed.

History also records Justice Thomas Bucknill (the senior one) once made an order while shooting. Though not relevant for the present purpose but interesting to note that Justice Thomas Bucknil was a prominent Freemason and rose to become the grandmaster of this Masonic order. His son Sir Alfred Townsend Bucknill (1880-1963) occupied several high judicial positions and also served as Puisne Judge in Patna, India.

The question regarding the choice of “place” for judicial adjudication came up for consideration before the legendary Judge – Justice Robert Edgar Megarry’ (who penned the famous “miscellany-at-law” series) in the case of ‘St. Edmundsbury and Ipswich Diocesan Board of Finance and another Vs. Clark’.

The question arose as to whether a Judge can go to another place where an old and unwell witness stays who is not in a position to travel to a place where the Court usually sits viz. the conventional court room. The question also arose about the power of the Court to sit elsewhere and adjudicate on the ground of convenience. Once the Judge decides to go to a village where the witnesses resided, another question which was confronted by the Court in the said case was regarding the formal attire to be put on, namely the judges robes.

Taking broader view and taking note of some of the precedents quoted above, Justice Megarry made the following historic statement in his judgement while deciding to hold the sitting at the remote village where the old witness resided:

"On the other hand, I think it would be unduly burdensome to all concerned if they were required to be robed in the unusual way merely for the purpose of hearing the evidence of one witness; and there may well be difficulties in such matters as the provision of suitable robbing rooms. Accordingly, I shall not robe, and I direct that the registrar and counsel shall similarly not be robed. Robes are convenient in normal circumstances as an indication of the functions of those engaged in the proceedings, and as enhancing the formality and dignity of a grave occasion. In their appearance they also lessen visual differences of age, sex and clothing and so aid concentration on the real issues without distraction. But robes are not essential and the Court may dispense with them where there is good reason. Jurisdiction is neither conferred nor excluded by mere matters of attire or locality and I need not discuss the numberless occasions upon which judges have exercised a variety of judicial functions in unusual places without the aid of robes for them or for counsel, from Lord Lyndhurst L.C. in a box at the opera to Sir Lancelot Shadwell V.C. while bathing in the Thames and Sir Samel Evans P. in a dressing gown in his bedroom.”

The above instances in history are the instances where a Judge decides to adjudicate while physically going to another place away from the court room due to some compelling reasons and not as a routine practise.

One Lady Judge, however, chalked out a ‘legal first’ by creating a virtual-reality courtroom while herself sitting away from the conventional court room, using a two-way internet video link for the first time in the history of judicial decision making. The Judge was Justice Pearlman who presided over Southwark Crown Court dealing with a trial concerning a long drawn litigation against one international entity.

Judge Valerie Pearlman
Judge Valerie Pearlman

Part-way through the trial, the Ladyship broke her leg but continued to preside over the trial from the Bench without any ado. She was, however, required to be shifted to St. Bartholomew’s Hospital in the City as the complications developed. Being a conscientious Judge, she was aware of the huge expenses and inevitable inconvenience to the litigants if re-trial were to take place. With a trial at an advanced stage, she sought the approval of Lord Chancellor’s Department for a novel remedy.

As Their Lordships gave the nod, surprised jury members, lawyers and litigants were given just an hour’s notice to decamp from the courtroom to an oak-panelled Great Hall at Bartholomew’s Hospital. Justice Pearlman summed up the evidence from the unusual throne of the hospital wheelchair.

When the Judge finished, the jury returned to Southwark to consider and deliberate upon the case. In the meanwhile, Judge Pearlman was transferred to a hospital near Worthing, West Sussex for an operation on her troublesome limb. It was from her hospital bed that she chalked up a ‘legal first’ by creating a virtual-reality courtroom, using a two-way internet video link to follow the progress of the trial 60 miles away as Judge George Bathurst Newman kept an eye on things at the Southwark end. Jury questions were sent to her on-line and the entire court saw Judge Pearlman without wig and gown, sitting on the end of her bed giving rulings on the issues raised.

Judge Pearlman, in the year 1999, was credited with a legal first which saved more than 2.5 million pounds of retrial costs.

The legacy of Judge Pearlman which was the denouement of her personal illness has come a full circle again as the result of yet another illness, this time a global illness – a pandemic. It seems it is here to stay whether fully or at least partially.

Supreme Court of India; Court Hall 1 which is presided by the Chief Justice of India
Supreme Court of India; Court Hall 1 which is presided by the Chief Justice of India

The Supreme Court of India has exhibited an extraordinary judicial statesmanship and foresight by anticipating potential technical challenges and pre-empting them by protecting the process of judicial adjudication through video conferencing through the medium of internet under the guarding umbrella of Article 142 of the Constitution of India. The new statutory mechanism shall have to evolve to bury the notion of “in aliquot certo loco”and to ensure that nobody raises the plea of “coram non judice” as feared by Lord Chief Justice Bridgman.

Lawyers, since centuries, generation after generation, have discharged their duties standing viz. while being “on the legs”. We will be the first generation of lawyers in India who will now have the luxury of sitting while arguing.

There is every possibility of more than one bench conducting proceedings through video conferencing which would require a request for a pass over. It may now not be possible to seek a pass over on the ground that the arguing lawyer is “on his legs”.

Just wondering, what will be the new expression for mentioning for such pass overs instead of saying that the lawyer is “on his legs” in case of hearings through video conferencing? A literal equivalent of the earlier expression would obviously not be acceptable.

The author is a Senior Advocate who is presently serving as the Solicitor General of India.

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