Virtual courts should supplement not supplant open courts, say advocates

Chennai

The Bar Council of India (BCI), a statutory body representing the Indian bar, had urged the Chief Justice of India, SA Bobde, to direct to all courts to resume physical, open court hearings from June 1. “Though virtual hearings were the need of the hour, the practice should be done away with as soon as the lockdown is lifted, since virtual courts are only accessible to a few lawyers, which leaves 95 per cent of the fraternity brief-less or without work,” BCI chairman Manan Kumar Mishra said in the letter to the CJI, reflecting the majority view of the advocate fraternity.

The major concern is about the livelihood of advocates, especially of those in the rural areas. But there are other issues as well, including giving up on a fool-proof and transparent open court system. Not enthused with the rapid introduction of virtual courts as part of the country’s e-Court project, which, according to Justice Chandrachud, is ensuring that all courts in India are capable, “where and when necessary”, more than 80 per cent of the lawyers practising in Supreme Court and High Courts are comfortable with actual hearings in court.

Opining that the absence of open courts would thwart the very essence of Article 21 (personal liberty), advocate M Radhakrishnan said conducting proceedings through virtual courts would be nothing short of denial of justice to crores of litigants.

“Realistically speaking, more than 90 per cent of the members of the bar, especially in rural areas, will have no access to the virtual courts system,” he said, strongly calling for the courts to function as open courts.

It is the functioning of the trial courts through virtual court proceedings that has not enthused many advocates, who claim that it was unimaginable holding trial through video conferencing where exhibition of documents and confronting witnesses would happen virtually. Virtual hearings would make it impossible to watch the demeanour of witnesses to get an inkling of whether the truth was being said. Above all, the scope of ensuring that the witness was deposing without any pressure, coercion or undue influence, which are part and parcel of traditional open courts, would be non-existent in virtual courts, charge many lawyers.

However, the more tech savvy advocates of the present generation find e-filing and virtual courts a blessing, noting that it would save a lot of time and energy. The e-filing facility, which also enables e-payment of court fees and digital signatures, can be done round the clock, the waiting time for the hearing can be brought down through virtual hearing, they feel.

According to advocate V Kamala Kumar, moving pre-trial processes like filing the case, submission of written statements, framing the issues, documentation and list of witnesses to virtual mode would help save time. The courts usually lose the first two hours in calling matters for the day before they start the hearing, which can be avoided by turning virtual, she added.

But the trial should to happen in an open court as the demeanour of the witnesses and cross examinations are crucial to a case, she said.

Many are thus seeking a judicious mix of the new and old system as suggested by Chief Justice Bobde while referring to the changes in working environment brought about by the pandemic. Given that the old order ought to give way to the new, a change of mindset among advocates in the ways the court proceedings would transpire in future seems to be the need of the hour, as the virtual system could improve functionality in terms of speedy disposal thereby paving way for timely justice.