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The article analyses the move made by the courts in India to shift to online modes to provide uninterrupted access to justice.
In such rather unsettling times, the Supreme Court has paved the way for making justice available. In fact, it has fast-forwarded that which was in the pipeline for a few years now – court hearings through video conferencing.
This, however, is not the first tryst of the Supreme Court with video conferencing.
Judicial precedents in relation to Videoconferencing
In the year 2014, a Division Bench of the Supreme Court, while allowing a transfer petition, made observations about the usage of video conferencing facility to hold matrimonial proceedings when both parties were not located within the jurisdiction of the same court.
Interestingly, the Court noted the difficulties faced by the parties living beyond the local jurisdiction of the court and observed that:-
It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties.
In every district in the country, video conferencing facility is now available.
In several cases, the Supreme Court has itself directed recording of evidence by video conferencing.
Soon after this judgment was pronounced, the Supreme Court took to directing video conferencing in most transfer petition matters. However, this change was short lived, as a subsequent three-judge bench judgment of the Court in Santhini v. Vijaya Venketesh overruled the judgment in Veni Nigam’s case.
Notably, the judgment in Santhini’s case was delivered by a 2:1 majority. While the majority (then Chief Justice Dipak Misra along with Justice AM Khanwilkar) took the view against video conferencing, Justice DY Chandrachud dissented and wrote an opinion in favour of video conferencing.
In the majority judgment, it was held that the Family Courts Act, 1984 was enacted with a view to enable reconciliation between parties, which is best done face to face, as in the virtual world, same emotions can never be communicated. It was thus held that video conferencing may create a dent in the process of settlement.
In the dissenting opinion, Justice Chandrachud, highlighted the pros of video conferencing and held that it was not outside the purview of the Family Courts Act. Some of his important observations are as follows:
(i) The Family Courts Act, 1984 was enacted at a point in time when modern technology which enabled persons separated by spatial distances to communicate with each other face to face was not fully developed. No Court should exclude the application of technology to facilitate the judicial process.
(ii) Appropriate deployment of technology facilitates access to justice. Modern technology is above all, a facilitator, enabler and leveller.
(iii) Video conferencing is being used extensively the world over (India being no exception) in online teaching, administration, meetings, negotiation, mediation and telemedicine among a myriad other uses. Video conferencing reduces cost, time, carbon footprint and the like.
(iv) In camera trial is not inconsistent with video conferencing.
(v) The Family Courts Act, 1984 envisages an active role for the court to foster settlements and also provides it the discretion to determine how to structure the process under Section 9 and 10(3). Moreover, the High Courts can frame rules under Section 9(1) and the Family Court may, subject to those rules, “follow such procedure as it deems fit”.
(vi) There may arise a variety of situations where in today's age and time, parties are unable to come face to face for counselling or can do so only at such expense, delay or hardship, which will defeat justice. It would be inappropriate to deprive the Family Court to adopt video conferencing as a facilitative tool, where it is convenient and readily available.
(vii) Whether videoconferencing should be allowed must be determined on a case-to-case analysis to best effectuate the concern of providing just solutions.
(viii) Conceivably, there may be situations where parties (or one of the spouses) do not want to be in the same room as the other. In such circumstances, video conferencing can enable mediation to go on.
(ix) Confining it to the stage after the settlement process and in a situation where both parties have agreed will seriously impede access to justice.
The judgment in Santhini’s case to a large extent dissuaded the adoption of video conferencing in conducting hearings, particularly at the stage of reconciliation. Yet, when the exigency of COVID-19 stuck the nation, only video conferencing came to the rescue of litigants.
Pros and Cons of Video Conferencing
As highlighted by Justice Chandrachud, apart from facilitating access to justice from remote areas, video conferencing is cost effective, reduces carbon footprint, and substantially reduces the attempt of employment of dilatory tactics by parties.
A huge effect video conferencing will have is on the pendency of cases. If adopted, video conferencing would drastically reduce the thousands of transfer petitions which are a waste of the Supreme Court’s precious judicial time, and will also be cost effective from the parties’ perspective.
Looking at the benefits of video conferencing, it is advisable that it be made optional in all courts, irrespective of the kind of matters. This will also help several parties in person, who have to sometimes travel miles to approach the nearest court.
Additionally, it would also be groundbreaking if witness evidence can be recorded through video conferencing. This is because, several times, it is observed that important witnesses refuse to give their statements as they fear getting embroiled in court matters which require their presence on several dates. This means they have to remain absent from their work etc.
Sometimes, witnesses fear for their security and thus again refuse to give evidence. In such circumstances, recording of evidence by video conferencing would not only reduce the difficulties of travelling etc. but in serious cases where there is apprehension of danger to the life of the witness, evidence can be recorded from a remote location. Similarly, in those proceedings where confidentiality ought to be maintained, video conferencing can prove to be useful.
In the present-day scenario, video conferencing is being used even in international arbitrations, where proceedings are held while the parties are sitting in different countries. If those proceedings can go on smoothly, we can certainly develop a mechanism to make the same work in India.
For instance, to implement video conferencing methods in India, some practical training can be imparted to lawyers while they undergo their LL.B. course and a practical exam can be incorporated within the All India Bar Examination (AIBE). At the Supreme Court level, a practical aspect can be introduced in the AoR exam, which can be made compulsory for any lawyer to clear the AoR exam.
While the video conferencing facility in its present form may require severe modifications, it is important to view the present step as only the first one in a series of many.
One major criticism that the current system has faced, apart from technical glitches, is that the hearing via video conferencing does not amount to public hearing, as the facility is accessible only by the judges and the advocate representing the party. The absence of ‘public hearing’ seems to take away the social audit element of the courts.
Current system of e-filing and video conferencing in the Supreme Court
Currently, the video conferencing facility is being used only to hear urgent matters, while e-filing facility is being used for all matters. In addition to this, the regular filing counters at the Court are also functioning. A look at the e-filing and video conferencing facility at the Supreme Court definitely warrants that the Apex Court employs the best software to prevent any technical issues whatsoever. Several AoRs have been facing technical issues while filing matters and have had to ultimately get the matter filed after calling the e-filing helpline.
Further, though the Supreme Court has already devised a systemized way of getting urgent matters listed, in several cases, the AoRs have been clueless of the status of their application for urgent hearing and have had to repeatedly call up the concerned officer and chase him in order to understand at what stage of processing their matter is stuck in.
Many AoRs have pointed out that a limit of 5MB to upload the petition and 2MB to upload any additional documents on the Supreme Court website is too less. In fact, in many cases, in order to get the matter listed urgently, a short petition is filed and all other documents are filed later with an application for additional documents. In such circumstances, a limit of 2MB for additional documents becomes a huge issue as the file needs to be broken into several volumes.
Further, many AoRs have complained that the link sent to them for the hearing was being inactive and/or not getting connected. Initially, the Supreme Court was providing only one link per party, which meant either the AoR himself or the Senior Advocate could appear. However, subsequently, they have started issuing two links.
It is important to note that in the Supreme Court, there is a battery of junior counsel who are instrumental in drafting and preparing the matter. However, in view of the limited links being issued for the hearing, it is often the junior counsel who are unable to attend the hearing. It is therefore important that 3-4 links per party are issued so that the Senior Advocate, AoR, junior advocate, as well as the party can attend the hearing.
Apart from the above, some advocates have mentioned that when judges are discussing internally, the screen goes blank, leaving the advocates to wonder if their session has ended. Needless to say, these glitches will have to be resolved as we proceed to use and understand the system better.
Further, owing to the longstanding lockdown, it may be advisable to resume normal hearing of cases, if the advocates of both sides give their consent. This is similar to the system followed by the Supreme Court to hear matters in summer vacations. While the Supreme Court has already issued such a notification on April 18, the other courts are yet to follow suit.
In order to make the system stronger, it would be advisable to keep the option of e-filing and video conferencing hearing available even when the Courts assumes normal work and the lockdown is over. This will help the staff, the Bar, and the Bench to get used to the procedure, and will also help us understand its flaws and correct it.
While the benefits of video conferencing are many, it does require a substantial amount of training, discipline and some basic infrastructure, all of which can only be achieved if all stakeholders undertake together to achieve this milestone in the judicial administration system of the country.
The authors are advocates at the Supreme Court of India.