Virtual, yet open: on nationwide lockdown

The situation forced by the lockdown must be used to improve judicial processes

Published - April 28, 2020 12:02 am IST

Amidst the national lockdown , the Supreme Court and several other courts have been holding virtual proceedings. A question of concern to the Bar is whether virtual courts have become the “new normal” and whether it means a move away from the idea of open courts towards technology-based administration of justice without the physical presence of lawyers and litigants. Chief Justice of India S.A. Bobde emphasises that virtual courts are open courts too ; and that one cannot describe them as closed or in camera proceedings. The correct way of framing the difference, he says, is to call them virtual courts as distinct from “courts in congregation”. A three-judge Bench headed by the CJI, in an order earlier this month, laid down broad norms for courts using video-conferencing and ratified the validity of virtual judicial proceedings. Two aspects are not in dispute: the vital necessity to keep the courts open even during a national lockdown so that access to justice is not denied to anyone; and second, the need to maintain physical distancing. The Supreme Court Bar Association has written to the CJI and other judges that open court hearings should be restored at the earliest, subject of course to the lockdown ending. Citing earlier judgments on the importance of open court hearings, the SCBA has requested that the use of video conferencing should be limited to the duration of the current crisis, and not become the “new normal” or go on to replace open court hearings.

The SCBA also has a specific request: that proceedings held virtually may also be streamed live so that access is not limited to the lawyers concerned, but is also available to the litigants and the public. The court administration should readily agree to this. Advocates appearing in a particular case are now barred from sharing the passwords given to them to join the proceedings through video conference. While it is theoretically possible for the parties to join their lawyers during the hearing, in practice they may be unable to travel to their offices. Media access is also limited. These issues can be resolved through live-streaming. And in the longer term, it should become the general practice. As the use of technology is stepped up, courts should consider other steps that will speed up the judicial process and reduce courtroom crowding. In the lower courts, evidence could be recorded, with the consent of parties, by virtual means. In the higher courts, a system based on advance submission of written briefs and allocation of time slots for oral arguments can be put in place. It may even lead to more concise judgments. Despite the possibility of technical and connectivity issues affecting the process, one must recognise that virtual hearings are no different from open court conversations, provided access is not limited. The opportunity now to improve the judicial process must be utilised well.


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