Indian Courts & Virtual Hearings
Updated: Jun 23, 2020
“Justice delayed is justice denied”. India has been on lockdown since March 24, 2020. Of the three pillars of the democracy, the judiciary has always evolved to changing times. True to nature, Indian courts have quickly evolved to virtual hearings in this abruptly changed time.
Supreme Court of India (SCI) passed 59 orders between between March 24- May 6, 2020,. Many were reserved orders passed during lockdown. Recently Mr. Justice DY Chandrachud stated in an interview that e-filing in SCI is going through a radical change with e-filing module tested for stability and at an advanced stage.
High Courts in India have been conducting Virtual hearings. Delhi High Court (DHC) quickly adapted to virtual hearing, possibly because most of the courtrooms in DHC are already paperless. All cases filed in DHC are scanned. DHC has also been providing CDs instead of physical files.
DHC started online hearings on March 25, 2020 i.e. one day after lockdown. Initially DHC took only “extremely urgent matters” i.e. cases on rape, juvenile justice, domestic violence etc. Post April 21, 2020, DHC started taking “urgent matters”. DHC heard a writ on March 28, 2020 filed against Netflix regarding defamation and passed orders on May 5, 2020. Thus, DHC began to address different kinds of cases. By May 5, 2020, DHC had passed 89 orders vide virtual hearings.
Initially one Division Bench and one Single Bench were sitting. With successful experiences, DHC increased to two Division Benches and six Single Benches.
The DHC procedure for filing and hearing is quite straightforward. After a case is filed, the Registrar lists the case before the Court after clearing objections. Thereafter, a link is shared with the parties concerned for virtual hearing. For those who lack video conferencing facilities, DHC has set videoconferencing (VC) facilities in the court complex. Delhi District courts have also been directed to set up requisite facilities. Certain formalities and decorum need to be followed. Incidents like the one before the Rajasthan High Court where the lawyer appeared wearing a vest are best avoided.
Many lawyers are happy with e-filing and virtual hearings. Many are also opposed as not everyone can afford VC facilities. A possible resolution may be in the manner in which Indian Intellectual Property Office (IPO) functions. At IPO both physical and electronic filings and hearing are available at the choice of the parties.
For IP attorneys, virtual hearings are not a new phenomenon. For the last couple of years, the Indian IP office has been conducting e-filings of cases and virtual hearings. In other countries also, hearings are done over telephone or VC. As a specific time and date is set, the IPO officials, attorneys and clients can be prepared and certain about the hearings. This is a much smoother, faster and cost effective approach.
Several countries have already been conducting substantive virtual hearings. Start of May 2020, Supreme Court of United States (SCOTUS) held its first oral argument in a trademark case between USPTO vs Booking.com. The Courts of England and Wales are providing for virtual hearings. Dutch specialised patent courts in the Hague recently conducted its first virtual hearing in a complex standard essential patent case.
The thrill physically making arguments and court crafts will surely be missed. Then again, this is a new normal. Virtual hearings are good for several reasons. That Parties in different parts of country or world can be a part of the proceeding and resulting saving on cost and time is a no brainer. Clients daily work is not disturbed on account of being stuck in the court. Virtual hearing also reduces the overcrowded Indian courts.
To be effective and efficient, the lawyers need to strictly comply with timelines and not indulge in delaying tactics. The physical presence and court craft aspects can possibly be offset by focusing on crisp writing and sharing documents that ordinarily were difficult to share. Reduction of photocopies will help in freeing space, money and the environment by carbon footprint reduction.
Some ground realities also must be addressed. Easy access to justice is a pre-requisite in a democratic country. In India, infrastructure and finances may not be available with every lawyer. Add to this the gap between urban and rural areas. Virtual courts becoming domain of a select few has to be avoided.
Another aspect is that justice should not be done but also seen to be done. Most of the hearings are in open courts. Media, parties, students and anyone interested can witness the debates in open court. Transparency is paramount in judicial function. Thus, virtual courts require robust technology and means for any and all to be have access. This would be the biggest challenge.
As is with any change, there is resistance. If the change is beneficial, should be tested on the anvil of changing reality. It must be remembered that virtual courts are not replacing physical courts. A hybrid system may be an effective system permitting both physical and virtual. Balancing rights is what Courts do best. Only time will tell if the mystique of courts will fade
Vaibhav Vutts, is a practicing attorney at Delhi High Court and partner at Vutts & Associates LLP an Intellectual Property law firm. The views of the author are personal. The views do not amount to legal advice and is only a viewpoint of the writer.