CHALLENGES FACED BY ADVOCATES IN VIRTUAL HEARING
Author: Sai Aravind M S
Image source: Google
Introduction:
The Novel Coronavirus also, known as COVID-19 has done large-scale damage to the entire world. Novel Coronavirus declared as a pandemic by the WHO had caused unimaginable damage to Human health and made a stall at the lives of people. The Pandemic has made the legal profession stands still. When the government announced lockdown, the Courts were closed, and the legal professionals found it difficult to run their day to day life. Virtual hearings were available for the professionals to argue their case. In this article, the author would like to discuss the challenges faced by Advocates in Virtual Hearing.
Pendency of cases:
In India, Judiciary is already burdened, with cases pending, and the lockdown imposed due to COVID-19 added more burden. As of May 27, 2020, there was approximately 3.24 crore pending cases in India's Subordinate Courts and about 48.2 lakh pending cases in the High Courts, and as of November 3, 2020, there are about 50,85,793 pending cases in High Courts[1] and 3,45,87,387 Cases in Subordinate Courts[2]. The Pendency of cases is the biggest hindrance in the delivery of justice. Justice delayed is justice denied. Since late March, various High courts in the country heard only 10-100 cases per day. The Supreme Court by its notification dated March 13, restricted the functioning of the court to urgent matters only[3].
Virtual Hearing:
This Pandemic introduced a new way of function to the Judiciary and the lawyers, which is a virtual model of hearing of cases. It is a method that functions through Video Conferencing, e-filing, telephonic mentioning of urgent matters, and online payment of court fees. A two-judge Bench in Krishna VeniNagam v. Harish Nagam[4]held that,
"It is appropriate to use videoconferencing technology where both the parties have equal difficulty due to lack of place convenient to both the parties. Proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person, wherever one or both the parties request use of videoconferencing"
Challenges faced by Advocates:
The main drawback of this system is that it is not open to the public, i.e. public cannot access the court proceedings. In the case of Naresh Sridhar Mirajkar vs. The State of Maharashtra[5], the Apex court held that the public has a right to be present in the court and watch the court proceedings. The Supreme Court issued a press note[6]stating that the open court hearings could not be claimed, as a matter of absolute right, and the process of adjudication itself does not demand an open court. The Supreme court Advocates on Records Association, in a letter, addressed to Chief Justice of India SA Bobde and other judges of the Apex Court. It said that almost 95% of the advocates are not able to present their cases in the virtual mode effectively, and it discourages advocates to give their consent for the hearing of cases in virtual mode[7].
A Nedunchezhian, President of the Madurai Bar Association, points out the teething troubles of the virtual hearing. He says, na“Not all advocates have modern smartphones, and they are also limited, by the lack of unlimited data packs or a broadband connection”.[8]
In a physical hearing, an Advocate will be able to understand the mood of the judges, and him/she can proceed accordingly but the virtual model creates psychological pressure on both the Judges and Advocates. The Bar Council of India says that through a virtual model of hearing, the litigants are unable to get justice. The need for a virtual hearing is accessibility to the internet connection. To participate in the virtual hearing, the required speed is 2mbps/sec, and it can be possible only in a 4G connection. As per TRAI data till 2019, only 436.12 million users having access to 4G services, and considering the total population, the statistics suggest that till 2017, only 28% have access to the internet, and the remaining 72% of the people do not have any access to it[9].In addition to that, it is essential to note that most of the Advocates are suffering from digital illiteracy, and one cannot expect them to learn this new medium in days or weeks. Also, when it comes to the examination of a witness, there is a difference between examination in virtual mode and examination in physical mode. The deposition of a witness is essential because it will decide the fate of the case. While examining the witness in a virtual hearing, there may be a delay in streaming, which could create doubt in the testimony of the evidence? In physical mode, Advocates will find out the testimony based on their facial expressions and gestures, which will be lacking in the virtual model. Also, lawyers are facing challenges like uploading documents on the website of the Supreme Court. Data restrictions like 5 Mb for a petition and 2Mb for additional documents make lawyers break the files into multiple volumes.[10]
Conclusion:
Virtual Court can only be made optional, and it should not be made permanent. Indian Judiciary must keep in mind the problems in the virtual court and must try to address those challenges and problems. Only then we could say that the Indian Judiciary is ready for virtual mode. The COVID-19 Pandemic had given a platform to digitalize the Courts, and the virtual model will be successful only when both the Bar and Bench are ready for the model without any difficulty. At the same time, we should remember that Article 145(4) of the Constitution of India mandates that no judgment shall be delivered by the Supreme Court, save in open court. The author would like to conclude by stating; only urgent matters shall be taken, in virtual mode or else, the physical mode is the best way of hearing cases.
References
[1]https://njdg.ecourts.gov.in/hcnjdgnew/?p=main/pend_dashboard [2]https://njdg.ecourts.gov.in/njdgnew/?p=main/pend_dashboard [3]https://main.sci.gov.in/pdf/Notification/13032020_120544.pdf [4]Krishna VeniNagam v. Harish Nagam, Transfer petition (CIVIL) NO. 1912 OF 2014 [5]Naresh Sridhar Mirajkar vs. The State of Maharashtra(1996) 3 SCR 744. [6]Supreme Court of India, Note on open court hearings, 2 May 2020, retrieved from https://images.assettype.com/barandbench/2020-05/06c7b93c-c27a-4702-9b16-5a47841aa88f/Note_on_Open_Court_Hearing.pdf [7]https://www.tribuneindia.com/news/nation/most-lawyers-were-not-comfortable-with-virtual-court-hearings-says-scaora-93439 [8]https://www.newindianexpress.com/states/tamil-nadu/2020/aug/16/virtual-reality-pros-and-cons-of-running-online-courts-2183977.html [9]https://www.latestlaws.com/articles/virtual-court-versus-physical-court-its-feasibility-legality/ [10]https://theprint.in/judiciary/public-hearing-fundamental-to-democracy-lawyers-on-scs-video-conferencing-proceedings/405094/