By - Chiranjeevi Sarin, Sabkuch Legal Private Limited
The deadly Covid-19 pandemic has impacted every strata of society in some way or the other. Considering the grave threat posed by Covid-19 pandemic, Supreme Court of India recently issued various guidelines for the legal fraternity to prevent the virus from spreading in courts. The Apex court of India few weeks ago ordered that hearings be conducted over video conferencing and court work be digitalized. This order by court was considered very progressive and received a lot of praises. However, food for thought is whether this order is appropriate or not.
Imminent Benefits of Supreme Court guidelines
At the very outset, the above order by Supreme Court seemed reasonably appropriate. Conducting hearings over video conferencing seemed the best thing to do considering the circumstances created by coronavirus as this would be the best form of social distancing. There cannot be a better way of practicing social distancing coupled with getting the job done without much hassles. This would avoid not only avoid large congregation of lawyers at courts thereby preventing the possibility of spread of novel coronavirus but also ensure that justice is delivered in timely manner. Further, the digitalization of court work would not only save paper but also ensure timely, effective and safer delivery of justice. Undoubtedly, the order of Supreme Court received considerable appreciation.
Recent criticism of Supreme Court guidelines
Highlighting the considerable gap between availability of resources among various income groups in India, the Bar Council of India addressed a letter to the CJI on 28 April, 2020 urging him not to continue the system of E-filings and Virtual hearings, post lockdown.
The Bar Council of India (BCI) has advised that many lawyers, belonging to humble backgrounds neither have the resources nor the education to adapt to such technological advancements overnight. Thus, digitalization of Court work will only deprive such persons of their livelihood.
"People sitting on elevated chairs seem to be, probably, far away from the ground realities and that is why they are harbouring and advocating such thoughts. They have perhaps forgotten the resources and technology or rather lack of it available on a wider spectrum here in India, though our capabilities are wide and far reaching. However, practically, India is a vast and diverse country, where there is often a yawning gap between the resources and the technologies available in metro cities, as compared to other urban areas, and rural areas. Even in urban cities, there are both more developed cities and less developed cities.
There is humongous difference in the technical knowhow of persons often according to age gap, and often according to difference in mode and manner of education, and resources and technology available from place to place.
...I can emphatically say, that 90 percent of Advocates, and Hon'ble judges throughout the length and breadth of the country are themselves unaware about the technology and about its nuances, maybe some of them could learn after proper training and maybe some of them would still find it a difficult task even with training to make themselves self sufficient in this regard." the letter asserts.
The BCI has also stressed on the importance of "open court room practice" and advancement of arguments in the court, in the justice delivery system.
"Technology can always aid the justice delivery system where needed, but to propose to have the court proceedings being heard and decided only on video with all three concerned, (the judge and the two parties), all sitting at three different places and to propose to do away with the norm and practice of society, the law courts and open arguments, cross arguments, cross examinations of a witness, a question by a judge, an immediate response or lack of the same by the Advocate can never ever be acceptable. In our opinion it can never be substituted totally and if the same is proposed to be done, the justice delivery system will loose its sheen, shine and trust of the people," the letter states.
The Council further said that virtual court rooms may undermine Judicial transparency.
The profound criticism of Supreme Court instructions by BCI cannot be overlooked. The latter has raised some very pertinent points which need to be deliberated upon by Supreme Court. It may have to reconsider its decision to continue with virtual hearings post the lockdown as the large gap in technical knowhow among lawyers could lead to increase in unemployment owing to their inability to participate in virtual hearings. Will the Supreme Court reconsider its decision to continue with virtual hearings after lockdown? The ball seems to be in Supreme Court’s court now as the final decision rests with it.