E-Hearings – The New Normal That We Must Embrace

Written by Ayush Sarna, Advocate at Punjab and Haryana High Court.

Looking at the scenario, amid pandemic of COVID-19, which has urged the adoption of ‘social distancing’ and ‘work from home’ policies, courts around the world have not allowed the wheels of justice to stop churning. Judges are now hearing urgent matters through ‘video-conferencing’ from the confines of their homes and realising its benefits in the process.

     Supreme Court, while adopting the concept of virtual hearing or e-hearing, has directed the Ministry of Health and Family Welfare to ensure availability of Personal Protective Equipments (PPE’s) to all health workers. Whereas High Courts like Kerala and Punjab and Haryana have upheld the decision of allowing shops selling essentials to remain open during the lockdown, by making use of this platform.

    E-hearing is a part of the E-court system, which is a mission mode project, started for computerisation and digitisation of judicial activities, being implemented by National Informatics Centre (NIC). It makes use of Information and Communication Technology (ICT) enabled infrastructure of courts, to make justice delivery system affordable and accessible.

    Virtual Hearings can lessen the burden on conventional courts by reducing the backlog of cases and also by disposing the cases during strikes or during situations like Covid-19 induced lockdown. It will ensure timely disposal of cases, as culture of repeated adjournments will reduce. It intends to improve people’s access to justice, as people from the remotest part of the country can have access to judicial system via video conferencing and also reducing congestion in courts.

   Adopting this platform would help in getting appropriate information, which is carefully recorded and stored, in a short span of time and thereby restoring the faith of people in judiciary. It addresses the issue of shortage of judges, as there are 19 judges per million people in the country against the world benchmark of 50 judges per million people. It gives the litigants a chance to resort to lawyer of their choice, rather than requiring them to find a local lawyer.

    Being an arena, which was till now uncharted territory, teething problems are bound to arise. There are concerns with respect to the safety and confidentiality of documents being shared via a virtual platform, as it is susceptible to online hacking. India still doesn’t have comprehensive data protection and privacy legislation. Another concern is digital illiteracy, especially in rural areas, where internet penetration is still less. There is also considerable resistance to technology among older fogeys, due to lack of its understanding.

    To make optimal use of this platform, would entail lots of expenditure, giving us a financial concern. Trivial cases might increase, thereby burdening judiciary. There is a logistics challenge, as adequate bandwidth may not be available to the parties, which affects the clarity of both audio and video, during the course of virtual hearings. There is also a concern regarding witness tutoring (especially in trial courts), which may be in the form of reading out from a script that may have been prepared prior to the hearing or following instructions from a third party during the testimony.

     In order to make this technology an enabler of justice delivery system and not a tool for the social distancing of human beings from each other, people must be sympathetic to the technological and other difficulties that may be experienced. There is a need for a robust security system, where audio or video conference links are protected from the security breach, only accessible by authorised persons. Data privacy rules must be made, which sets out the manner in which data is gathered, processed, stored and consequences of its breach. Endeavours must be made to fasten the digitalisation of the rural landscape. There is a need for skill training of judges and advocates for effective virtual hearing.

    India may consider referring to the Seoul Protocol on Video Conferencing in International Arbitration, enforced in march 2020, which specifies transmission speed and also provides that all logistics setup and technical assistance is to be provided prior to the commencement of the video conference. Its venue shall allow a reasonable part of the interior of the room to be shown along with the reasonable distance from the witness, to address the issue of witness tutoring. Facilitation centres must be utilised for E-filing and video conferencing.

    Uniform protocol and Standard Operating Procedure (SOP) must be specified. Supreme Court has recently issued a comprehensive SOP in  April 2020 which includes directions where only one party must address the party, the opposite party may raise the hand in case of any objection, both parties remain on mute unless directed otherwise by the court etc.

    Supreme court has appointed E-Committee under Justice DY Chandrachud, which recommends that the use of this technology must be institutionalised even when the lockdown is lifted and normalcy returns. It recommends the recordings to be hosted on court websites the next day of e-hearing, which will ensure that people have access to court proceedings. It emphasises virtual courts, not only for traffic challans but also for promptly dealing with summary violations. In order to address the financial constraint challenge, budget of Phase 2 (2015-19) E-Court project, maybe utilised till a dedicated budget is earmarked by the state.

    Thirst of a mindset of the 21st century, cannot be quenched with 20th-century technology. Therefore, the endeavour must be made to prepare for a change, which may not be as smooth, but still strive to bestow to the future generations, the legacy of a wonderful legal system, where E-hearings are no longer an option for unusual circumstances but a reality of a daily practice that we have embraced.