Nothing in this world is constant but change…
Covid-19 pandemic has proven that human tenacity know no bounds! What was unthinkable till a few months ago is a norm now and the speed with which the world has learnt or adapt itself and shift to the new normal is proof enough that we shall overcome. The real question however is - at what cost?
During these pandemic struck times when the judicial system and the world alike is seeking the correct balance between having cases heard and staying safe, the courts have started the system of virtual hearings and have reduced the number of cases heard per day by restricting them to only urgent matters. Many people have turned to various virtual platforms like webex, Cisco etc and other virtual conferencing applications to conduct meetings, mediations, arbitrations, and other court matters from a distance. However just like every coin has a flip side, these virtual hearings too come with a rider.
The screen is a window through which one sees a virtual world. The challenge is to make that world look real, act real, sound real and feel real.
Even though most claim that something is better than nothing and that virtual is as good as the real thing, the question remains that whether we can actually make the virtual world look and feel as good as the real? Justice should not only be done but it should be also seen to be done.
The biggest challenge confronting the virtual hearings is that it becomes even more difficult for the judges to control a virtual courtroom than a physical one. Various instances of advocates accidently turning on videos of themselves where they are visible doing everyday tasks like brushing their teeth etc. during court proceedings are viral on the internet. Recently a video where a lady advocate was seen throwing the files helter skelter and shouting at the judge during a virtual hearing has also garnered a lot of views.
The moot remains that maintaining decorum while a person is inside a physical courtroom is far easier than it is while everyone is sitting in the comfort of their own homes/offices. The fear of reprimand/contempt is also higher in physical courtrooms than in the virtual ones as it becomes more a case of out of sight is out of mind!
Virtual hearings are also often riddled with noise such as that of traffic, echo, or sometimes by the inadvertent mistakes of the advocates. A case in point is the instance of an advocate leaving his audio unmuted. All the participants to the hearing could hear the advocate arguing with his wife. The judge had to shout several times before the advocate realised his mistake and muted the audio.
Another issue is that while it is not allowed to record court proceedings in the physical courtrooms, the fact that the same are being recorded in the virtual ones cannot be stopped. Once the court room drama starts unfolding on the internet and becomes accessible to all at the click of a button, the courts to some extent also loose the awe that they inspire in the common man.
One of the biggest fears that assails every mind is that various personal records that are of a sensitive nature are introduced during court proceedings and maintaining the secrecy of the same becomes quite a task once they are required to be shared online. The risk that the same may be hacked increases manifold when the proceeding are undertaken on a virtual platform.
The impact that a virtual hearing has on the credibility of a witness’s deposition is also still uncertain. It is hard to explain how important it is to see a witness in person and to watch how that witness reacts under questioning. A classic way of observing the credibility of a witness is to watch their body language. In a physical court, the judge can see the person concerned and is more vigilant to their body language. In a virtual court, the judge can’t see a witness’s entire body hence it becomes difficult to judge on anything beyond the words that are spoken. Little things like this can make it harder to determine if a witness is credible.
Physical presence of witnesses or accused helps the judges notice their demeanor which plays a crucial role in criminal cases. It enables them to analyze the non-verbal cues like facial expression, postures among others, and detect if the person is giving a false statement. But the same is not possible through video-conferencing.Then there is also the issue of witness tampering. In a virtual courtroom setting, it can be hard to tell if a witness is being coached through text messages or some other dishonest method while the same can be ruled out in case of a physical court room. Advocates in lower courts also claim that cross-examination in a virtual court may not be as effective as the one during an open court hearing. The Madras High Court Video Conferencing in Courts Rules, 2020, published in the Tamil Nadu Gazette last month dictates that cross-examination of witnesses or an accused can be done only in the presence of a coordinator appointed by the court to ensure that their statements are not tutored.
The fact that what many take as granted is still a luxury to most can also not be overlooked. Not all advocates have the privilege of owning high tech smart phones. Most are also not capable of affording unlimited data packs that are offered by broadband companies. Issues also arise when the area where they are placed does not have sufficient network available. The vagaries of nature can also not be ruled out hence it becomes increasingly difficult to hear arguments that are broken and keep buffering when an important hearing is going on.
Another complication that arises is that some advocates may try to bail out if they feel that the matter is not going in their favor and in such case they might plead that their connection is faulty. The decision now is whether to believe them or to give them the benefit of doubt... in both cases, precious time is lost and the innocent gets penalized. Where many advocates are on the verge of destitution, it is cruel to expect them to spend a premium on sophisticated handsets or huge data plans. There have been demands from various bar associations that the government should offer data and smartphones for free to the advocates as part of covid-19 relief packages but the problem has seen to persist here too with many advocates passing on the same relief to their children for their school purposes etc.
Another challenge being faced by the advocates is that it becomes difficult for them to make their clients understand the work that has been done. Owing to pandemic, execution of sureties in bail cases are done at the prison and the particulars also reach the prison authorities directly from the court. Hence, clients who receive bail through video-conference think that the advocate has not done anything and sometimes refuse to pay the fee. This fact also is a cause of concern as the advocates feel that while their workload increases manifold due to the onset of new SOPs every other day, the clients feel that it was all done at the click of a finger and hence does not deserve the fee quoted.
There is a rising tide of advocates who are fighting virtual hearings tooth and nail. Their claim is that when people can go to malls and gyms then why can they not come to the courts. Time and again the Apex court of the country has said that if the schools and offices are open then where is the justification for the courts to remain closed?
Physical hearings are also said to have an upper hand on virtual hearings as they include small nuances of trade that are lost over the virtual medium. An advocate gets to understand the mood of the judges and stands a better chance at convincing them during physical hearings. However, online hearing creates a psychological pressure on both the advocates as well as the judges. Most of the judges have also admitted that they loose patience during virtual hearings and the same effects their performance. There have been instances where judges have stopped work for the day due to the fact that the internet connectivity was extremely poor and the same was effecting their quality of work.
While many claim that virtual hearings will never be equal to court hearings and are merely an eyewash, it cannot be disputed that virtual hearings have come forward in a big way as a solution during this pandemic. These hearings can in fact even offer long term solutions to the problems imposed by distance provided the present state of infrastructure is upgraded. The government needs to identify and develop the type of infrastructure that would be required to support virtual court hearings after taking into consideration, the requirements of the various players in the field. People and litigants who are having problem in accessing the digitalized judicial system can be imparted with training sessions. Creating awareness around e-courts can help people knowing the facilities and ease which e-courts can facilitate.
Maintaining proper records of e-file minute entries, notification, summons, warrants, bail orders, order copies, e-filing etc. for ready references will have to be looked into and concentrated efforts need to be made in order to ensure that the security is not compromised. Rome was not built in a day and yet here it is! Virtual hearings too have a long way to go before they are accepted willingly as an option and not as a need.