Physical Hearing vs Virtual Hearing of Courtroom Proceedings

By Suryansh Beohar

Introduction

As we all know, the COVID-19 virus took the whole world by surprise suddenly and people started contracting it at a rapid rate, increasing the number of infected people by thousands at a daily rate worldwide. To put a halt to this rapidly increasing number of people getting infected, the government announced lockdowns and restrictions (with some exceptions) to eliminate human contact and put an end to this chain of infection. Since the whole nation went into complete lockdown, the courts of the country had to do the same. However, this led to a problem as people could not be delivered justice if any of their legal rights got violated, which is a grave violation of the fundamental rights of an individual on its own. The second problem that arose was that cases started to pile up in the courts of the country due to the Supreme Court, High courts, and other subordinate courts being closed. As a solution to this problem, courts started hearing the cases in a virtual format, through the means of online meeting applications. This solution was capable of killing two birds with one stone, there was no human contact and the cases were being heard which would result in reducing the load on the various courts of the country and letting people get justice. Several sections of the society had various opinions regarding this method, some considered it to be working well and had no problem with it, and argued that the courts should adopt this method of case hearings and there should always be an option available to the judges and the litigants to attend hearing through online means. The other sections argued that this method should only continue as long as it is necessary, and the physical or offline mode of hearing should continue as soon as possible. 

A virtual hearing has its own pros and cons. Its advantages are that it accommodates the needs of hearings even in the times when public gathering cannot quite be afforded as much as pre-covid times, it will reduce the burden on the courts, it will be quite cost-efficient since money spent on traveling and moving to different courts and tribunals, filing petitions will be saved, which would ultimately prove to be time-efficient too. Justice Chandrachud, a senior Supreme Court judge, seems to be in favor of these online hearings. He stated that ‘apart from facilitating access to justice from remote areas, video conferencing is cost-effective, reduces carbon footprint, and substantially reduces the attempt of employment of dilatory tactics by parties.’ The disadvantages are that not everyone has access to internet facilities. There are always technical issues such as improper internet connectivity, glitches, issues with the devices, etc. Some people seem to face challenges when it comes to switching their work from physical to online means. Therefore, both the advantages and disadvantages must be kept in mind while formulating an opinion. 

Supreme Court’s Stand

The apex court stated that the hearings on Wednesdays and Thursdays are going to be mandatory and that the court will have its first physical hearing on 21st October 2021. However, several people were against these directions, even some prominent lawyers such as Kapil Sibal. He cited the examples of some High Courts that were still holding and conducting case hearings through the online mode. He also said that the physical hearings shall not be mandated. Subsequently, a petition was filed by the National Federation of Societies for Fast Justice along with former Central Information Commissioner (CIC) Shailesh Gandhi and former Mumbai Police Commissioner Julio Ribeiro. The petition was drafted and presented by advocate Siddharth R Gupta. It was requested to the Supreme Court that the High Courts such as the Uttarakhand High Court and the Gujarat High Court who have already issued orders on resuming the physical hearings from 10th of August and 16th of August respectively, and of all the states shall be restricted from discontinuing the case hearings through the online mode. They claimed that the online hearings saved the litigants’ precious time and it was also cost-efficient. The bench comprising of justices L Nageswara Rao and BR Gavai stated that “It is one thing to demand live telecast of court proceedings, and quite another to say that when Covid is receding, people need not come to courts and instead continue with virtual hearing,”

“For more than 70 years, we all understood courts to function physically. It was in view of Covid-19 pandemic that we thought that courts should continue to function and developed this new system of virtual hearing of cases. But virtual courts cannot become a norm as courts have to function physically when normalcy gets restored. The result of seeking virtual hearing as a norm is to envisage that the building where we sit should be closed down.”

It was also claimed by the litigants that people who want justice and live in remote areas face various problems in reaching the court which hinders them from getting justice. To answer this argument the court stated that “Nobody in remote areas is being denied access to justice. There is only a small percentage of cases that reach the Supreme Court from trial courts. Litigants already have the facility to approach those courts. If we allow virtual courts that will be sounding the death knell for physical functioning of courts,” After a petition saying that the online hearing should be a fundamental right for the litigants, the Supreme Court responded by stating that ‘Declaring virtual court hearing as a fundamental right would be the death knell for physical courts.’ After reading the aforementioned statements, it is fair to assume that the apex court is not very much in the favor of the online hearings, much to the dismay of the petitioners. But not all of the lawyers are against the physical opening of the courts, such as most of the lawyers had positive reviews about the physical openings of the Madhya Pradesh High Court, such as Senior counsel Naman Nagrath said that virtual hearing of cases had begun due to Covid-19 pandemic and now that the situation is under control, the physical hearing has also begun. With both virtual and physical hearings possible, lawyers are feeling relieved. In cases where elaborate arguments are required or there are a lot of documents involved, physical hearing becomes desirable. Presenting facts before the court is not easy in a virtual hearing. 

Conclusion

One can conclude from the above statements that the reactions to the physical openings after the virtual hearings of the courts have been mixed in total. Although the virtual hearings have been boon to those who could not reach the apex court in the times of the pandemic, the physical hearings must commence. Virtual hearings are prone to all kinds of technical difficulties, be it hardware or software glitches, which disrupt the flow of the hearings, due to which Virtual hearings of the cases cannot become a norm and the courts must return to the physical state. The argument that physical hearings cause ‘a a lot’ of problems is not legitimate as the Supreme Court stated that for 70 years there was access to justice without any complaint and now there is a problem with physical hearing.? This statement accurately sums up the whole controversy regarding the opening of the courts.