Make hybrid hearings permanent

“There are decades where nothing happens; and there are weeks where decades happen.” – Lenin

This quote attributed to Lenin aptly sums up the tectonic shift which the COVID-19 pandemic has brought about to the functioning of the judicial system. Before March 2020, no one could have imagined that physical access to the courts would be abruptly curtailed, and hearings would shift online over video conference platforms. What may otherwise have happened over a very long period of time, became reality in a matter of weeks. Embracing available technology saved the system from a complete shutdown, ensuring that it continues to function, even if in a limited manner.

One year into the pandemic, when the first wave of COVID-19 was receding, several courts adopted a hybrid model to bridge the return to normalcy. Though courts had opened for physical hearings, lawyers/litigants had the option to appear either physically or virtually. The model entails circulating video conference links for those want to appear online, and placing infrastructure in courtrooms that enables the judge and lawyers appearing in person to see and hear those appearing online. The few experiences which I personally had with this hybrid system, particularly in the Delhi High Court, were seamless.

Thereafter, the second and more deadly wave of COVID-19 hit suddenly, bringing a halt to physical hearings, and the system went back online entirely. However, the hybrid system was working well for the limited time it was in place. Undoubtedly, video conference hearings cannot and should not replace physical courts entirely. But there is a strong case for making hybrid hearings a permanent feature even after the pandemic subsides, for a number of reasons. It is a logical step in the march towards adaptation of technology into the legal system.

Advantages of Hybrid Hearings

First, despite physical closure of courts, video conference platforms have exponentially increased access to courts, and thereby access to justice. This is especially true for the Supreme Court, where cases come from all across the country. Earlier, any litigant from outside New Delhi would have to incur substantial costs of travel if s/he wanted to attend the hearing of their case before the Supreme Court. If the litigant wanted any counsel from outside Delhi to appear in their case, s/he would have to pay for the lawyer's travel and stay as well. These added costs were a deterrent for all but affluent litigants.

Video conference hearings have wiped out these concerns. It is now common to see lawyers from all over the country addressing the Supreme Court over video link from their own chambers, regardless of location, thereby saving huge costs of the litigants on travel. Litigants can also easily view the proceedings from their own locations. Making hybrid hearings a permanent feature would allow this arrangement to continue even after physical hearings resume, giving the option to those who find these costs prohibitive to still access the system in a meaningful manner. The same benefits are applicable to some major tribunals which deal with cases from all over the country, but are headquartered in New Delhi. So also, similar gains would accrue for litigants before the High Courts, especially in large states where the High Court is located mostly in the State capital and litigants come from remote corners of the region.

Second, hybrid hearings would enable lawyers to more freely exercise their right under Section 30 of the Advocates Act to practice before any court or tribunal in India. This section was notified as late as June 2011, around fifty years after it’s enactment, and now technology can give a much more meaningful scope to its application. Lawyers no longer need to be limited by geography and expense.

Third, the hybrid system could do away with the need for establishing and maintaining circuit benches of various courts/tribunals. If parties/advocates can join the proceedings remotely, it hardly matters where the seat of the court/tribunal is located. This would also take care of long standing grievances of many lawyers in some states, who demand circuit benches of superior courts and tribunals which are more accessible to their locations.

Fourth, a tangible benefit is reducing the crowds in court premises. It had become difficult to even find standing room in some courts of late. With hybrid hearings, the number of people physically visiting the courts would surely reduce and make the court premises a far more pleasant place.

Fifth, hybrid hearings will work to the advantage of differently abled lawyers and litigants for whom physically coming to court can be a daunting task. This is no small matter. Many of our court buildings, especially the older constructions, are not disabled friendly. We have often seen advocates and litigants in wheelchairs or on crutches, struggling to get through the corridors and to get to the front of the court room when their case is called out. They would be spared this indignity if they had the option of appearing from their chambers/homes in comfort.

Sixth, hybrid hearings will provide great flexibility to lawyers with small children or other dependents at home, who cannot be left alone. Quite often, due to the obligations of taking care of such dependents, lawyers lose out on professional opportunities. Hybrid hearings will help them to manage both their profession and their responsibilities at home.

Judicial pronouncements and legislative measures facilitating use of video conference technology

Both the judiciary as well as the legislature were already incorporating video conference technology into the system even before the pandemic struck and forced the issue. For example, the National Green Tribunal has been conducting hearings of its Circuit Benches over video conference for some time now. For many years, the Central Information Commission has been conducting hybrid hearings where parties could appear before the CIC in New Delhi through video link, if they were in remote locations.

Also, there are pre-pandemic judgments in which video conference hearings received judicial sanction in some situations. For example, in State of Maharashtra v. Dr Praful B Desai, as far back as in April 2003, the Supreme Court permitted recording of evidence in a criminal trial over video conference, of a witness based in a foreign country. In Krishna Veni Nagam v. Harish Nagam, dealing with the deluge of transfer petitions in matrimonial cases, the Supreme Court commented on the implementation of video conference technology to ease the burden of litigants. Although a majority of two judges in a larger bench in Santhini v. Vijaya Venkatesh did not agree with some of the directions given in Krishna Veni Nigam, Justice DY Chandrachud in his dissenting opinion pithily noted the advantages of video conference hearings, as a cost effective and efficient alternative which could increase access to justice, particularly in remote areas. The reality of that is evident today whilst we are going through these pandemic times.

Even the legislature was cognizant of the need to adapt to the use of technology and some statutory provisions were introduced before the pandemic, where use of video conference was envisaged. For example, the 2009 amendment to the Code of Criminal Procedure (CrPC) introduced a provision in Section 167(2)(b) to enable a magistrate to extend judicial custody on production of the accused through video link. This is in line with the progress made by the eCourts Committee of the Supreme Court to digitize the court system, including adapting video conference technology and connecting all courts to jails, to deal with remand matters and even recording evidence in sensitive cases.

In fact, the draft vision document released for Phase III of the eCourts project envisages a much more significant role for technology in the system, including expanding on video conference capabilities. Section 36 of the Protection of Children from Sexual Offences Act, 2012 enables the Court to record the statement of the child through video conference. Section 38 of the Consumer Protection Act, 2019 permits consumer dispute commissions to conduct hearing over video conference. Rule 39 of the National Company Law Tribunal Rules, 2016 permits recording of cross examination through video conference. Rule 115 of the Trademarks Rules, 2017 envisages hearings through video conference. There are several other such examples.

With the already existing judicial and legislative sanctions, video conference hearings are here to stay. Incorporating hybrid hearings into the traditional system of physical hearings is a logical step forward, to get the best of both worlds. The experience of large scale video conference hearings have revealed distinct advantages, and we must not lose out on them. While there has been fair criticism that not all lawyers were able to access video conference technology, hybrid hearings can take care of these concerns. Certainly, it will require significant investment in upgrading infrastructure all over the country, and it may take time for all stakeholders to get access to the basic requirements of internet and devices. However, these problems can be overcome with time, and the judicial system will be enriched by taking this progressive step of making hybrid hearings a permanent feature of the system.

The author is an Advocate practicing at the Supreme Court of India. He is a Partner at JNA Law.