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| @ | April 21,2020

THE host of guidelines recently issued by the Supreme Court, permitting video conferencing for ensuring robust functioning of the judicial system across the country, is a welcome step. Though issued mainly in the backdrop to contain the spread of COVID-19 pandemic, these guidelines will bolster the use of modern technology in the administration of justice for the future as well. These guidelines mainly focus on advocating the use of video conferencing for hearing arguments in the courts, at both the trial stage and the appellate stage. Another facet of these guidelines is that they enable the recording of evidence, in some circumstances, through the medium of videoconferencing.

A bare perusal of the aforesaid guidelines denotes the progressive approach of the apex court in keeping pace with time. In fact, this is a classic example of old formalities having been rendered obsolete by the adoption of modern technology. Video conferencing is not a new thing for the Judiciary. In fact, our courts have been using this technique to record deposition of witnesses in several cases for some time now. However, it would be for the first time that video conferencing will be put to use for connecting the bench with the bar. This will help the courts function during this lockdown period, that has brought the administration of justice to a standstill.

In a country as large as India, the consequences of closing the courts for a long period of time would surely lead to severe adversities. If implemented in true letter and spirit, these guidelines set out by the Supreme Court will surely have far-reaching consequences. Juristically speaking, there are four key takeaways from the latest guidelines of the Supreme Court.

First, the fact that these guidelines have been issued by taking recourse under Article 142 of the Constitution of India adds credence to these guidelines. The jurisdiction conferred on the Supreme Court by Article 142 is extra ordinary, inasmuch that any order passed by taking recourse to this provision of the Constitution becomes law of the land and is enforceable throughout the country.

Second important thread emerging from the text of these guidelines is the recognition by the Supreme Court to the autonomy enjoyed by the High Courts of our country. Since only broader issues have been sought to be addressed by the apex court in these guidelines, the High Courts have been vested with the discretion to work out the detailed modalities which are suitable for adopting the use of video conferencing technologies. This will enable the High Courts to modify the guidelines to suit their respective practices, which is pragmatic in a diverse country like ours.

Third, the manner in which Supreme Court emphasised that it is merely performing its duty while framing these guidelines is unprecedented. The highest court of the country rightly dismissed the notion that it is exercising discretion while setting these broad parameters of law. In fact, a duty is cast upon the courts to engage with public. This duty emanates from the well-established principle of open justice, a very dynamic and ever-evolving concept of law. This principle of law requires the courts to engage with public.

Simply put, this rule of law propagates that justice should not only be done but should manifestly and undoubtedly be seen to be done. The foundation of this legal principle was laid down by the House of Lords, United Kingdom in 1913 in the famous case of Scott v Scott. Almost all the commonwealth countries, including ours have accepted this principle of law. The importance of this principle of law can be ascertained from the comments of a former Australian judge , who once fairly remarked that this ideal of law even influences further development of practice. Even in India, the principle of open justice has been given wide recognition in the form of statutory and constitutional provisions.

Last but not least, it was interesting to note the remarks of CJI Sharad Bobde, who while wrapping up the hearing in which these guidelines were laid, very aptly summed up that: “This cannot be seen as a temporary issue. Technology is here to stay.”This marks a paradigm shift in the approach of the courts in India and, also emphasizes the need to rely on technology. The adoption of latest technology like video conferencing, digitalisation of the databases and court records, e-filings of new cases and usage of up-to-date websites for updating the status of the cases are just a few instances where the technology has created wonders not only for the legal fraternity but also for the public, especially the litigants.

However, these measures are not enough to match the expectations and realities of today’s world that is fascinated by technology. In a fast-moving world, where fake news has become a major problem, the need to provide first-hand information to world has attained great importance. Thus, time is ripe to widen and broaden the scope of adoption of new technologies by the courts in administration of justice. In this backdrop, it would be expected from the Supreme Court to act and deliver, in sync with the remarks of CJI Bobde quoted above.

One particular area where the Supreme Court should prioritise is permitting cameras into the courtroom and the broadcasting of legal proceedings, as laid down in the landmark 2018 judgement. A bench comprising former Chief Justice Dipak Misra and Justices A. M. Khanwilkar and D. Y. Chandrachud heard a batch of petitions, including one by senior advocate Indira Jaising, seeking live-streaming of all cases, specifically ones of constitutional and national importance having an impact on the public. Jaising contended that live-streaming and videography of the proceedings of the apex court in matters of great public importance would be in keeping with the principle of open access to justice and ensure justice is not only done but is seen to be done.

Needless to say that acting on its own 2018 judgment would help build public confidence in the courts. Public needs to be educated about the machinery of the courts and administration of justice. This requirement assumes more importance because of the principle of ignorantia juris haudexcusat, which means that ignorance of the law is no excuse. Public scrutiny enables public debate and vice versa. It was not long ago that Rajya Sabha T.V. live broadcasted the proceedings of International Court of Justice (ICJ) involving the detention of our national, Kulbushan Jadhav, by Pakistan. Several members of the legal fraternity and other sections of the society keenly watched how senior advocate, Harish Salve, led the arguments on behalf of our country before ICJ.

In fact, many countries permit varying degrees of recording and broadcasting of court proceedings. Previously in 2018, a three-judge bench of the Supreme Court dealt with the issue of broadcasting the court proceedings. This was in the context of a Public Interest Litigation, whereby the Supreme Court recognised the cardinal principle of open justice and opined that the project to start live-streaming the proceedings must be implemented in a progressive, structured and phased manner. Regrettably, such a project has not seen the light of day yet. Perhaps, this is the time to push forward this project, which is eagerly awaited.

Hoping that the latest set of guidelines by the Supreme Court will be expounded further, it is being reasonably expected that the judiciary will adopt technology to redress other problems in the administration of justice. Yet another sphere where modern technology can prove to be beneficial is the testimony of expert witnesses. In fact, it is need of the hour that the courts must understand that it is the courts that need the expert witnesses and not the other way around. Expert witnesses are often burdened to be physically present in the courtrooms to record their testimony. This can be easily taken care of by video conferencing. This process may also help bridge the gap between the bureaucrat or police officers and the courts since the former is often required to be present in the courtrooms. In routine, we hear about a lot of instances where senior officers from the Executive have been summoned to appear before courts.  These instances are very common when the courts are exercising their contempt jurisdiction. This practice has caused a lot of heartburn among the Executive, which is an important pillar of the Indian democratic system as the other two: Judiciary and Legislature. Video conference can assist the courts in tiding over such and many other situations.

It must be remembered that Lord Denning, considered as one of the greatest jurists, cautioned that “If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.” (IPA Service)

 

[The author is a practising advocate at Punjab & Haryana High Court, Chandigarh]

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