The adaptability of a hybrid format facilitates versatile case management in these uncertain times where social distancing restrictions may be relaxed or tightened at short notice. However,a clear-cut policy is required to promote transparency and consistency in the process of determining which elements of a case are suitable to be heard remotely and which are not
Courts which have traditionally functioned in real halls have switched over perforce onto virtual screens of desktop computers, laptops and the smartphone. But, how smart or truthful is such a mouse operandi for delivering justice has become the moot question today.
Since the year 2020, courts of India and also those in many other parts of the world have undergone a sea change in the mode and manner of dispensation of justice. The Covid-19 pandemic resulted in lengthy lockdown periods that almost knocked down the “rule of law” made by man to set right society.
As it is, courts across all rungs of the hierarchy are bogged down with an ever-burgeoning litigation. The reasons for this elephantine burden on courts are not far to seek, be it bad laws, poor enforcement or a rank failure on part of establishments to check corruption. This essay is an effort at trying to look at the brighter side of a dark scenario and to help nip the menace of “Lis pendens” or cases pending at courts of law by advocating the refined variety of “hybrid hearings”.
During this period of suspended life in society, proceedings were largely curtailed or limited to those held over remote links. And, as proceedings recommence post lockdown, it becomes important to consider the legality as well as the future of such remote proceedings.
Even though it is my personal opinion that justice can only be dispensed to a large extent only in personal courtroom trials, hearings and arguments, many deliberations are on to evaluate whether remote hearings can be adapted into an effective and beneficial long-term initiative?
The higher judiciary has been expressing its views from the Bench and so have we practitioners of law. But, what about the litigants viewpoint?
Using technology to conduct trials and hear arguments from confines of remote homes was unthinkable as a normative practice even three years ago. Final hearings and also hearings with contested evidence are inevitably being conducted remotely using technology for otherwise there will be no hearings and access to justice would be a mirage.
The courts exist to resolve disputes. The default position now in all jurisdictions is that a hearing should be conducted with one, more than one, or all participants attending remotely.
In practice, many questions arise. Whether a particular hearing should be adjourned if the case cannot be heard face to face, or whether there should be a remote hearing even where several parties to the case are involved?
The continued administration of justice must be the overriding factor to determine this question. Justice delayed is justice denied even when the delay results from a response to the prevailing extenuating circumstances.
Nevertheless, it is equally important for a court to remember that there will be cases where the court cannot be satisfied that a fair evaluation of facts or resolution of disputes can be achieved by way of saying remote hearing. The appropriateness of the nature of proceedings should be individually assessed by the court.
A virtual or remote hearing, where it is appropriate, can only replicate some and not all of the characteristics of a fully attended hearing in the court hall (a postage stamp image of a particular attendee at the remote hearing is definitely a poor substitute to seeing that person fully present in flesh and blood, in the court).
Much may be lost in a remote hearing. The intervention of technology between the viewers and viewed, sterilises the exchange, removing a critical dimension of human interaction. The whole experience becomes literally and figuratively two-dimensional.
It is easier to lie to a machine than to someone’s face. The truth does not hit you in the same way through a screen. The impact of both examination-in-chief and the cross-examination gets diminished. Vulnerable witnesses via video-link can prove to be a challenging task unless a close-up gaze of the camera is revealing. It is difficult to pick up on subtle emotional cues at a distance. This is important not just for the assessment of witness testimony but for proper client care, and for the ends of justice.
This being so, cases that do not involve hearing or weighing live evidence are clearly more suitable for remote determination. Interim order hearings, directions hearings, case management hearings and pre-hearing reviews are natural contenders for continuing to be heard remotely. Simpler review and substantive hearings such as conviction, performance or health cases where impairment is not contested can also be dealt with effectively without requiring attendance. Similarly, remote hearings are more suited to short cases. Remote hearings are easier to arrange at short notice. The litigants and witnesses do not need to arrange travel and accommodation, saving time, expense and expanding availability.
Added point is that a few have suitable private space at home to engage in private link without interruption for days on end.
Herein comes the need for a hybrid system of court hearings. Instead of a presumption of a hearing in person, case hearings could be held remotely where it is possible and fair to do so: working from a staring point of the “due process of law” that is possible for proceedings to be held remotely, parts can then be “hived off” into sections where attendance would be required or advantageous in the interests of justice.
Some cases may be conducted in person until all witnesses, including parties to the litigation, have given evidence testimony, with the remainder proceeding remotely. Eventually almost all cases would lend themselves to some form of such hybrid solution to the odd situation continuing to prevail worldwide. Thus, a hybrid hearing involves conducting all or a part of the proceedings without all the parties being present in person, physically in the court hall. Submissions, determinations and even the questioning of witnesses, where appropriate, can all be performed or delivered via alternative remote means.
Hybrid hearings introduce a greater element of flexibility, allowing the participation mode of various parties to be blended according to the circumstances of the particular case. They offer a compromise position which sits between the rigid choices of the hearing being conducted either fully remotely or fully attended.
The adaptability of a hybrid format facilitates versatile case management in these uncertain times where social distancing restrictions may be relaxed or tightened at short notice. A case for an amendment to the Civil Procedure Code for remote hearings which currently is made available for the aged, the infirm and the “pardanashin womenfolk” becomes stronger once the circumstances cease to be exceptional and become the “new normal”.
Provision will have to be made for public attendance or virtual observation in order to comply with the requirement for transparent justice. A clear-cut policy is required to promote transparency and consistency in the process of determining which elements of a case are suitable to be heard remotely and which are not.
It is also imperative that such an amendment allows for agile adoption of new platforms and developing technological solutions as they arise. Parliament has an onerous responsibility to stay ahead of the curve in this respect while goading upon regulators and courts to properly maintain all acceptable standards of security and data-protection.
The way ahead will not be easy. As the saying goes: “First we make our habits, then, our habits make us”. Advantages of convenience and cost-saving outweighed the fair administration of justice in the past and it is important to ensure that they do not do so in the future. Remote hearings can be adapted into an effective and beneficial long-term initiative.
The justice delivery system must update itself in these testing times.
(The writer is an eminent jurist and columnist)