Covid-19 is a dream opportunity for courts to have virtual hearings. The Supreme Court drew the right lesson out of this experience and announced an SOP for hybrid hearings where lawyers and litigants can choose to be present physically or virtually. This progressive step, unfortunately, was opposed by the Supreme Court Bar Association. For the sake of the nation, our courts and other quasi-judicial bodies should adopt hybrid virtual hearings to make access to justice easier, writes SHAILESH GANDHI.
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THE Covid pandemic has brought cataclysmic changes to the world. People have responded in varying ways and shown their strong ability to adapt and survive. The Indian judicial system has shown mixed achievements in this respect.
First the accolades.
In less than four weeks from the lockdown, the Supreme Court took ownership of this unprecedented crisis and announced the resumption of hearings using virtual platforms. This was emulated by some of the High Courts and subordinate courts.
They could have decided to make this the norm for all hearings and come quite close to the normal speed of processing. This has resulted in a great jump in pendency of cases.
PENDENCY IN COURT
In the 14-year period from 2006 to 2019, the increase in pendency of all courts was 54 lakh cases. Courts were struggling to cope and failing to ensure the citizen’s fundamental right to speedy justice.
In 2020 alone, pendency went up to over 75 lakh cases! This is because the courts did not work regularly. Some worked for one or two days a week, while others did not work at all.
The Supreme Court has drawn the right lesson out of this experience and announced a Standard Operating Procedure (SOP) for hybrid hearings where lawyers and litigants can choose to be present physically or virtually. This is a very progressive step and will make access to justice easier. Most litigants have almost no role to play in hearings, but they try and attend to them to know what happened and to brief their lawyers better. Most would prefer to avoid the journey to the courts and be happy to attend virtually.
Many lawyers who stay in small towns and cities are unable to take up cases if they are not staying in the same place where the case is being heard. With virtual hearings, they too would have the opportunity to appear in such cases without great expense and time.
SCBA OPPOSITION
Unfortunately, it appears that the Supreme Court Bar Association (SCBA) is opposing this. In January 2021, it sent a letter to the chief justice opposing hybrid virtual hearings. The Supreme Court registry issued an SOP for hybrid virtual hearings, which is now being opposed in the Court by Senior Advocate Vikas Singh. The grounds on which the SCBA is opposing this are reported as follows:
*The SOP was issued without hearing the Bar Association on the subject.
* Filing of the matters has gone down by 20 to 25%. Some lawyers are facing difficulty to run their homes and pay for their children’s fees.
Also Read: SCBA challenges SC SoP on hybrid hearings; says association, as equal stakeholder, not consulted
The first point is absolutely valid, and the lawyers should have been consulted while framing the SOP. However, this cannot be the reason for scrapping hybrid virtual hearings. Changes must be made in the SOP in consultation with the SCBA. On the second point, this has no relationship to virtual hearings and a large number of people have suffered because of stoppage or slowdown of activities.
In fact, if the lawyers had pleaded and obtained complete working by virtual hearings earlier, they could have reduced the impact.
The Association has claimed that lawyers would lose incomes. There is no basis for this. If hybrid virtual hearings are held, it may lead to lawyers being able to work from small towns without having to migrate and stay in expensive, big cities.
LITIGANTS IGNORED
It is sad to note that litigants do not find mention in the concerns voiced by the Association. Other arguments have been made such as everyone does not have access to computers and there are issues of net connectivity. But many litigants and lawyers would still prefer virtual hearings because of the obvious saving of time and money. No argument has been advanced why this choice should not be given to litigants and lawyers who prefer this mode.
It would be a pity if we forgo the very important lesson of virtual hearings and courts, and limit ourselves to sustain it during the Corona pandemic only. We have realised the enormous potential of this technology and must not regress.
We have the technology, the opportunity and the experience which validates the switch to virtual hearings for courts. Litigants and lawyers should be given the choice of whether they want to attend a hearing physically or virtually. This positive change is in the interest of the nation and I hope we derive the right lesson from our current pandemic.
For the sake of the nation, our courts and other quasi-judicial bodies should accept and adopt hybrid virtual hearings, and not go back to physical hearings. That would be a regressive move. Citizens and legal professionals must demand this change to make access to justice easier.
As Napoleon Hill had once said, “In every adversity lies the seed of equal or greater opportunity.” Covid-19, too, has brought in unprecedented adversity in this century, but in the midst of it, it has also brought in a dream opportunity of implementing a revolution in the justice delivery system.
(Shailesh Gandhi is a former Central Information Commissioner. The views expressed are personal.)
