A judge's experience of hearings through video conferencing

The justice delivery system faces its biggest challenge ever! The announcement of the lockdown of courts is an unimaginable crisis which was not anticipated even when the Coronavirus broke out. None of us even expected the lockdown would last so long. The seriousness of the spread of COVID-19 has been daunting to say the least.

Science will give the final prevention/cure to this malaise in the form of vaccines and therapeutics. Until then, the judiciary has responded by taking steps towards facing the challenge and to get the machinery rolling – even if slowly. Technology has provided some answers, but the complete solution is not yet there.

In the judiciary, we have a duty to keep the wheels of justice moving. The pace may be slower but it cannot stop.

Recently, Chief Justice of India SA Bobde said:

“Justice can be equally done without robes or congregation.”

A felicitous observation on March 19, 2020 by Teare J., presiding over the Commercial Court in the United Kingdom reads:

“The courts exist to resolve disputes and, as I noted this morning, the guidance given by the Lord Chief Justice is very clear. The default position now, in all jurisdictions, must be that hearings should be conducted with one, more than one, or all participants attending remotely.…”

When the lockdown took effect, it was a bolt out of the blue. Suddenly, various mechanisms had to be evolved involving active participation of all judges and the staff.

At the Delhi High Court, in the last few weeks, hearings have been conducted through video conferencing (VC). The WebEx meeting platform used is quite efficient. The responsibility for conducting VC hearings is divided between various departments/staff, which broadly include the filing department, the IT department, and the Court staff of the respective Judge.

The actual teams working in these departments are also supervised by a team of efficient officials who handle the functioning and coordination from their own residences.

The IT team forms the backbone of the VC hearings, as its functions range from keeping the VC platform continuously up and running, training of court staff, receiving and sending out emails in all matters, preparation of portfolios in each matter, and doing the fire-fighting during the hearings in order to solve any glitches.

The procedure followed for conducting VC hearings is quite detailed but is very efficient. The same involves the following steps:

1. Filing is done with the High Court by sending emails to the specified address.

2. At the time of filing, the email addresses of the respective parties/counsel is provided.

3. Electronic files are checked only for very basic compliance of procedures. Attestation of affidavits is dispensed with. Service of advance copy, electronically, is usually required.

4. Once the case is cleared for listing, the list of matters is generated and transmitted to the Court Master.

5. The Court Master contacts all counsel telephonically and gets an assessment as to the time required for hearing. The Court Master then sets up the schedules for hearing in approximately 15-20 minute slots.

6. The Court Master also seeks the email addresses of any Senior Counsel or litigant/s who wish to attend the hearing.

7. The Court Master also finalises the stenographer and the law researcher who would be attending the hearing.

8. After slots are finalised, the Court Master sends out emails through the WebEx platform, one day before the hearing, to all lawyers, Senior Counsel, stenographers, law researchers, and judges. In several cases, litigants too wish to join the VC hearings, and they are also added in the emails.

9. The cause list is then generated. It shows the item number and email addresses and mobile numbers of counsel appearing. This is a cumbersome process which is time consuming. Sometimes, the cause list is released late in the evening around 9 pm or so, depending upon the number of matters listed.

10. Parallelly, the IT team of the Delhi High Court prepares the file into portfolios, making it easy to use. The sample portfolio of a case looks like this:

The portfolio consists of separate folders for the entire record of the court such as order sheet, pleadings, applications, documents, depositions and miscellaneous folder. Each electronic file of a case is maintained in a portfolio.

11. The IT team then emails the electronic record of the case to the Court Master/Judge, the previous evening.

12. On the day of hearing, the Court Master proceeds as per the cause list and dials into the meeting slots, one case after another. Since the slots are allotted, when the Court assembles, everyone has dialled in.

13. Litigants have to keep their audio in mute mode.

14. Sometimes there is an audio or video glitch, which is due to bad internet connection at the lawyer’s or litigant’s end. Usually, we judges do not face internet connectivity issues.

15. In the allotted slot, after hearing brief submissions, the order is dictated. The stenographer can take dictation at his residence. But I opted for the stenographer to come to the residence.

16. Once the order is dictated and corrected, the same is uploaded on the High Court website. Most orders are made available on the same evening or at best by next morning.

My experiences of VC hearings are that the system is easy to operate. Even a Judge can host the meeting from his/her residence easily. The actual hearings were quite fast and seamless. Further, the Judge can control and mute all parties except the one speaking. Muting ensures that there is little disturbance when the hearing is going on.

Computers given to Judges are very easy to use. It is possible to open the paper book on one side and have the VC screen on the other side. Thus, the Split Screen option could be used. This way, the Judge can always look at the screen.

Another feature that can be used is the Share Screen option. In one case for example, a lawyer wished to rely on a document during the course of hearing. The same was on the lawyer’s desktop, which was being used for the VC, and so it could be shared instantaneously.

In VC hearings, lawyers cooperate quite well. Even when they were requested to mute their end, they don’t mind and if they don’t accede, we can mute them too! During VC hearings, there is also good time management. Since slots are fixed in advance, everyone is brief. Usually, lawyers do not need to wait long. They dial in just a few minutes before the slot and dial out immediately. So, for doing one matter they don't need to wait the whole day.

On some occasions, we have experienced delays despite allocation of time slots. If hearings are long, they can be passed over and taken at the end. Once the Judge, the staff and lawyers get used to it, at least 10-15 matters can be dealt with on a daily basis. Usually hearings in 6-7 matters consume approximately 2 hours.

The manner of conducting hearings by video conferencing is still evolving. We can all make it more efficient as time goes by. The ultimate objective should be to make the judiciary as accessible with the least risk of exposure.

COVID-19 has made judicial systems the world over re-invent themselves. The expanded use of technology in the legal system is welcome. An amalgam of physical court hearings and VC hearings has already been used for petty offences and cases like those involving traffic challans. The same can be expanded into other areas.

Some categories of cases can be heard and decided simply on pleadings. An immediate and enormously successful example of ODR (Online Dispute Resolution) is the domain name dispute resolution system, which was set up in 2001. Under this system, which is governed by the UDRP (Uniform Dispute Resolution Policy) of ICANN, several resolution agencies resolve domain name disputes for global top level domains and country-level domains (gTLDs and ccTLDs), through ODR.

The panelists receive pleadings online and within a 30-45 day period, the decision is rendered. Many Indian practitioners are panelists on this mechanism and have decided several cases. Even NIXI in India offers such a facility for the .in domain names. The system was started globally in 2001 and in almost two decades, more than 70,000 cases have been decided.

The achievement of this system is testament to the fact that it is able to resolve disputes between parties coming from different countries at an international level where binding decisions are rendered. ODR of this nature with modifications, at a domestic level, could provide a method of quick disposal.

Video conferencing ought to be used not merely for court hearings, but also for conducting mediation and arbitration proceedings, as the hearings are in a silent atmosphere, easily audible, and very methodical. Even caucus hearings can be done by muting audio/video on some screens.

The Delhi High Court holds hearings through VC on a daily basis and the number of matters listed range from 70-100 on any given day. The variety of matters include criminal matters, tender matters, writs, arbitration & commercial disputes, civil suits etc. At least 10-12 judges sit on a daily basis on rotation, both in Division Benches and as Single Judges.

The biggest drawback in conducting video conferencing hearings is not meeting colleagues and enjoying lunch with them. One also misses the usual hustle-bustle of courts. VC hearings are, however, here to stay. Let’s enjoy it and stay safe!

The author is a sitting judge of the Delhi High Court.