Open Court hearings, Remote Court hearings through videoconferencing, Alternate Dispute Resolution (“ADR”) processes encompassing Arbitration and Mediation, virtual ADR and the Online Dispute Resolution (ODR) platforms form the justice delivery mechanism.
Various forms of justice delivery is made available to the society at large. What form works effectively in the Indian context? Is access to justice effective enough to reach out to a large section of the society, or as they say ‘justice is for the rich only’ and ‘justice delayed means justice denied’.
COVID-19 has been generating popularity for using technological platforms i.e. virtual hearings, zoom webinars, zoom meetings, etc. Virtual hearings have become the focal point of discussion in webinars within the dispute resolution community worldwide to examine as to what extent virtual hearings could be considered as an alternative to open court hearings, notwithstanding the procedural and technical issues. Whilst some oppose it vigorously, others speak in favour of it.
Introduction
Digital technology has brought about tremendous changes in the way legal practices around the world have been conducted in the last two decades. The 1980’s until the mid 1990’s was the era of telefax and then the change came about through the medium of the internet, email, skype and videoconferencing.
As Professor Frederick I Lederer wrote in 1997, “The Courtroom is a place of adjudication, but it is also an information hub. Outside information is assembled, sorted and brought into the courtroom for presentation. Once presented, various theories of interpretation are argued to the fact-finder who then analyses the data according to prescribed rules (determined by the Judge through research, analysis and interpretation) and determines a verdict and result. That result, often with collateral consequences is then transmitted throughout the legal system as necessary. The courtroom is thus the centre of a complex system of information exchange and management. Ultimately, because lawyers and Judges deal continuously with ‘data’, high technology courtrooms exist and virtual courtrooms are possible. Litigation is a dispute between two or more parties, resolved by a Judge, jury or arbitrator following argument, usually by counsel. To prove facts in dispute, counsel present evidence. Witnesses are called, their accounts listened to and their demeanor studied. Physical evidence is considered – physical items, photographs, plans, schedules and video evidence considered.”
Most of these legal processes are being supported by the use of information technology. We are living in a technological age that is increasingly dependent upon computers and related information technology. The legal system is changing. Most of the lawyers, Judges, legal administrators, and support personnel have adopted word processing, electronic legal research, time and billing programs, and, increasingly, varying forms of case management software.
Electronic filing is already in use. Thanks to the initiatives taken by the E-Committee of the Supreme Court headed by Justice Dhananjay Chandrachud and by the E-Committee of the Delhi High Court. We are on the road to the virtual courtroom. Unless we take an intentional early exit elsewhere, our final destination is clear. There is no doubt the virtual courtroom is unlikely to replace our traditional courts and tribunals buildings in the near future, but even those traditional places of law and judgment will see increasing amounts of virtual evidence and adjudication. However, we have the opportunity, as we travel, to build some high-technology side roads leading to specialised virtual hearing rooms and traditional courtrooms aided by technology.
Open court hearings
India’s legal system is based on the English common law, codified laws, and non-codified customary laws. The jurisdiction of the courts in India is founded upon territorial and pecuniary grounds. The Supreme Court is at the apex exercising appellate jurisdiction for final appeals in civil, criminal and administrative matters, as well as original jurisdiction in constitutional matters. This is followed by a High Court and the lower courts. The High Courts have the appellate jurisdiction for the lower courts in the respective State. They establish the administrative procedures for the lower courts and, through precedent, outline the method of interpretation of the Code of Civil Procedure, 1908 and the Evidence Act, 1872 for civil and administrative cases and the Code of Criminal Procedure, 1973 for criminal cases.
Traditionally, the administration of justice requires hearing the cases and complaints of the litigants through their legal representatives/advocates and by the Judges in open courts. ‘Open courts’, refers to proceedings conducted before a court of law in full public view. In India, Section 153-B[1] of the Code of Civil Procedure, 1908 and Section 327[2] of the Code of Criminal Procedure, 1973 require as a general rule, all civil and criminal cases to be tried in open court, subject to the discretion of Judges in certain cases as discussed later below.
Open justice is delivered in a ‘court’. In Brajnandan Sinha v. Jyoti Narain[3],it was held that “a body or forum must have power to give a decision or a definitive judgment which has finality and authoritativeness which are essential tests of a judicial pronouncement, if it has to be treated as a ‘Court’.”
Indian Constitution provides ‘that the judgments of the Supreme Court of India shall be delivered only in open court’.
The stress to open justice can be seen in Order 18 Rule 4 of the Civil Procedure Code, 1908 which proves thus, “The evidence of the witnesses in attendance shall be taken orally in open court in the presence and under the personal.”
Section 153-B of Civil Procedure Code, 1976, provides that ‘The place in which any civil court is held for the purpose of trying any suit shall be deemed to be an open court, to which the public generally may have access so far as the same can conveniently contain them.’
The same principle stressed in criminal law also under Section 327 of the Code of Criminal Procedure mandate “public access” to the court proceedings. In Naresh Shridhar Mirajkar v. State of Maharastra[4], Bachawat, J. elaborated on open justice as follows “Long ago Plato observed in his laws that the citizen should attend and listen attentively to the trials. Hegel in his Philosophy of Right maintained that judicial proceedings must be public since the aim of the Court is justice, which is a universal belonging to all save in exceptional cases, the proceedings of a Court of justice should be opened to the public.” The object behind the hearing in open court has been to provide legal assistance readily available to a person facing trial and it is in consonance with Article 21 of the Constitution.
Proponents of open justice assert numerous benefits. An overarching benefit is that it keeps courts behaving properly. Still, practical considerations often mean that the ideal of open justice must be weighed against other values such as privacy and cost and national security. Open justice is important for three reasons: First, it assisted in the search for truth and played an important role in informing and educating the public. Second, it enhanced accountability and deterred misconduct. Third, it had a therapeutic function, offering an assurance that justice had been done. There are other factors which sometimes must be balanced against the need for open justice especially in criminal matters and family matters.
Virtual court hearings: Historically
Virtual court hearings have been taken place in Indian courts much prior to the Covid era. Judicial precedents have emerged to maintain privacy and confidentiality of the parties.
A two-Judge Bench in Krishna Veni Nagam v. Harish Nagam[5] while dealing with transfer petition seeking transfer of a case instituted under Section 13 of the Hindu Marriage Act, 1955, when both parties were not located within the jurisdiction of the same court, referred the parties to participate in the matrimonial dispute cases through video conferencing. While allowing the abovementioned transfer petition, the difficulties faced by the litigants living beyond the local jurisdiction was acknowledged by the Supreme Court that “it is appropriate to use videoconferencing technology where both the parties have equal difficulty due to lack of place convenient to both the parties. Proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person, wherever one or both the parties make a request for use of videoconferencing.”
Later on, Veni Nigam case[6] was overruled by the Supreme Court of India in Santhini v. Vijaya Venketesh[7], by a 2:1 majority. Dipak Mishra, C.J. and A.K. Khanwilkar, J. held that “in transfer petition, video conferencing cannot be directed”. However, D.Y. Chandrachud, J. wrote the judgment in favour of the use of modern technology and videoconferencing. Chandrachud, J. in the dissenting opinion highlighted the pros of videoconferencing which are laid down below:
- “The Family Courts Act, 1984 was enacted at a point in time when modern technology which enabled persons separated by spatial distances to communicate with each other face to face was not fully developed. There is no reason for court which sets precedent for the nation to exclude the application of technology to facilitate the judicial process.
- Imposing an unwavering requirement of personal and physical presence (and exclusion of facilitative technological tools such as videoconferencing) will result in a denial of justice.”
In Meters and Instruments v. Kanchan Mehta[8], it was pointed by the Supreme Court that the “Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There is need to categorise cases which can be concluded “online” without physical presence of the parties where seriously disputed questions are not required to be adjudicated like traffic challans and cases of Section 138[9] of the NI Act.”
In case of criminal cases the rule is the trial should be conducted in open court, but at times it is excused. Under Indian law Section 327(3) Criminal Procedure Code, 1973 provides as follows, “Where any proceedings are held under Sub-section (2) it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the court.”
The breach of the provision in criminal cases has been made punishable under Section 228 of the Penal Code, 1860 which states, disclosure of identity of the victim of certain offences viz. rape, or printing or publication of a proceeding without prior permission of the Court has been made punishable with imprisonment for two years and fine under Section 228- A of the Penal Code.
Virtual hearings during the COVID era
The Supreme Court addressed the issue of delivery of justice in the form of an order dated April 6, 2020 during the COVID-19 lockdown. A Bench consisting of Bobde, C.J. and D.Y. Chandrachud and L. Nageswara Rao, JJ. issued a direction In re, Guidelines for Court Functioning Through Videoconferencing During COVID-19 Pandemic[10] regarding measures to be taken by courts to reduce the physical presence of all litigants within court premises by adapting the social distancing guidelines.
On April 6, 2020 the Supreme Court passed a seven-page order explaining the reasons for moving online: “The Supreme Court of India and all High Courts are authorised to adopt measures required to ensure the robust functioning of the judicial system through the use of videoconferencing technologies; and consistent with the peculiarities of the judicial system in every State and the dynamically developing public health situation, every High Court is authorised to determine the modalities which are suitable to the temporary transition to the use of video conferencing technologies.”[11]
These guidelines were issued by invoking Article 142 of the Constitution of India as an extra-ordinary jurisdiction. In the aforementioned order, the District Courts were directed to adopt virtual court hearing through modes prescribed by the High Court concerned and to provide videoconferencing facilities for litigants who lack resources.
The use of technology to hold hearings remotely is meant to connect people, affording an opportunity to replace the real world, offline space, which may not be available to them for some reason. Courts all over the world are struggling with an appropriate way to hold fair hearings that are open to the public. In practice, decisions about to proceed with hearings during lockdown, and how hearings should be conducted, have been taken by Judges in the interests of justice. The hearings that have taken place remotely have naturally included urgent hearings.
While the learning curve has been steep and there have been challenges and lessons learned, most courts have successfully transitioned to new, virtual ways of conducting many kinds of hearings. While methods and processes for each court differ and may be somewhat unique, the overall impact is innovative disruption throughout the entire court community.
The view point on virtual court hearing
Virtual courts are here to stay for some time. It should be enhanced to include all regular matters not just urgent matters, since the pandemic is not coming to a close any time soon. The judiciary has made a good start by accessing tools of e-filing and video conferencing. The Supreme Court issued guidelines in this regard as well and most High Courts are functioning in this manner too.
However, we need to build on and embrace technology in a more systemic way in the present circumstances and not limit it to only urgent matters. Perhaps a blend of both ‘Open Courts’ and E- Courts could co-exist quite easily.
What are the advantages of virtual courts
- Increasing efficiency of courts
The virtual judiciary will result in substantial savings in costs and will also lead to speedy disposal of cases. The productivity of lawyers will increase substantially as visits to courts and long waiting hours will be more an exception than a rule. If this practice is extended to other civil cases, efficiency will drastically increase in judicial functioning.
- Better utilisation of existing infrastructure
The jurisdiction of a court is defined by geography and it makes no sense in matters such as taxation and company law. The transformation to remote, non-personal electronic court hearings will change this. All Judges can be empowered to handle any case, wherever it originates. This will result in multiple advantages such as better utilisation of manpower and infrastructure by equitably distributing the work.
What are the disadvantages of virtual courts
Like everything else every system has pros and cons. Many have voiced opinion that there are several technical glitches in the system and most lawyers are disadvantaged and are not in a position to adapt to the new settings. I do note and agree that a fair section of the lawyers outside the metro cities are not very privileged and fortunate to have all the facilities and amenities to carry on their practice in the usual manner. There is a feeling of a digital divide. However, on the other hand when any new changes are introduced we must adapt and improvise within the systems. It is important that the Bar Council and Bar Associations are required to provide training and facilities to the weaker section of the Bar.
The disadvantages of virtual courts also percolate to the junior members and the very senior members of the Bar. They do loose out heavily on the practical observations of watching learned seniors voicing their arguments and court craft skills. In addition, the conduct of the court by the Judge would also be an important observation for the junior members of the Bar. All in all there is no substitute for practical learnings of the profession which is not feasible through videoconferencing. Perhaps as mentioned above, a dedicated hybrid system can be adopted as and when the Corona crisis abates.
In addition, there are other practical challenges which require to be addressed. There is a lack of basic IT knowledge amongst lawyers particularly in smaller towns who were unable to avail the videoconferencing facility owing to lack of technical know-how. Clearly, professional bodies such as the Bar Council and Bar Associations need to cater to the segment of lawyers who face such inadequacies by providing training facilities on a regular basis.
Moreover, there are also issues related to cyber-security, data privacy and confidentiality which need to be addressed and secured.
Virtual ADR hearings
Several leading international arbitral and mediation institutions have quickly adapted to providing virtual arbitral proceedings, and have come out with protocols, guidelines and procedures to get on with business as usual.
On 16 April, 2020 leading arbitral institutions (the ICC, ICDR/AAA, ICSID, KCAB, LCIA, MCA, HKIAC, SCC, SIAC, VIAC) released a joint statement on COVID-19. The institutions acknowledge the challenging times, expressed their support for parties and arbitral tribunals by ensuring that pending cases may continue without undue delay.
It is now common for case management conferences to be run by leading arbitral institutions using virtual meetings or videoconferencing for cross-examination of some witnesses and experts to take place remotely. The international nature of disputes has also made electronic document storage, trial presentation and electronic bundling a practical option for many arbitrations.
More recently, the Africa Arbitration Academy has brought about impressive protocols on Virtual Arbitral Hearings. Concerned about the ongoing effect of the COVID-19 pandemic on Africa’s Dispute Resolution Landscape, the Africa Arbitration Academy has just launched its Protocol on Virtual Hearings in Africa[12]. The Protocol, provides for recommendations on virtual arbitral hearings and considers the specific challenges and circumstances that may arise in relation to remote hearings in Africa.
The overarching objectives of the Protocol are as follows:
(a) to provide guidelines and best practices for arbitrations within Africa, where a physical hearing is impracticable due to health, safety, cost, or other considerations;
(b) to encourage African institutions and governments to make express references to virtual hearings in arbitration rules and laws;
(c) to serve as guiding standards, principles, and provisions to be adopted by arbitral institutions or governments in Africa when drafting their arbitration rules and laws.
Considering that most arbitrations in India are ad hoc based and not institutionalised, barring a few institutions like the MCIA, Nani Palkhivala Center in Chennai, Delhi International Arbitration Centre and or the ICA. Are these institutions adapting to the changes and getting on with virtual hearings. In India, institutional arbitration has picked up only in recent past.
How are ad hoc arbitrations coping with the COVID challenge? Majority of the arbitration cases are still conducted under the ad hoc mechanism prescribed under the Arbitration & Conciliation Act, 1996 (“the Act”). It remains to be seen how many have opted for virtual hearings. Of course this also depends at what stage are the proceedings presently at. Infrastructure also poses a challenge, including privacy and confidentiality issues amongst other issues.
No doubt, parties can also exercise options under the Act. The Act, provides for a scenario where parties could opt for a documents only arbitration, where it was not mandatory to have oral hearings i.e. Section 24(1) of the Act.
In addition, the 2015 amendments to the Act, introduced the concept of fast track arbitration i.e. Section 29-B of the Act. As per Section 29-B, parties may mutually decide to adopt the fast track mode of arbitration in which the arbitrator has to decide and pass an award within six months of the date of reference. It shall be pertinent to note that only a sole arbitrator can be appointed in this case. Thus, if the parties intend to resort to the fast track method, the arbitration clause in the agreement has to be modified accordingly by specifically providing for a sole arbitrator to decide the dispute. The fast track arbitration proceedings shall be concluded and decided only on the basis of written pleadings and supporting documents. No oral hearing will be conducted unless requested by both parties. This may or may not be conducive in complex matters where evidence would require to be evaluated and oral arguments are necessary to determine a particular matter.
Due to lack of a uniform arbitration bar and too many ad hoc arbitrations and few arbitral institutions, there are no common virtual hearing protocols in place.
Perhaps the MCIA, Nani Palkhivala Center in Chennai, Delhi International Arbitration Centre or the leading Chambers of Commerce like FICCI, PHD Chambers of Commerce should come out with Virtual Hearing Protocols which may be adopted by the parties engaged in ad hoc arbitration or by the sole arbitrators to tide over the current challenges the world is facing.
Online Dispute Resolution (ODR) Process
Can COVID-19 be a turning point for the judicial framework in India to avail of the progress made in technology to streamline systems and reduce the delays that have plagued India’s judicial process since several years?
India, with its large population and multiple problems such as judicial delays, pendency and lack of access to the justice system, is uniquely positioned to spearhead the adoption of technology in decongesting its courts, physically as well as in terms of case load.
ODR consists in using information and communication technology processes to negotiate, mediate, arbitrate, conduct proceedings, and settle disputes exclusively or primarily online goes a step farther than the ADR system. A number of businesses with large number of low value cases will have the need for experimenting ODR processes. Building capacity for these disputes is very important. As our world evolves to where smart phones serve as remote controls to our lives, the way we think about resolving conflict must develop too.
The use of ODR in India is at a nascent stage and is starting to gain prominence day by day. A joint reading and interpretation of the Arbitration and Conciliation Act, 1996, the Information Technology Act, 2000, and the Evidence Act, 1872 not only make ODR legally and technically viable, but also helps overcome jurisdictional issues, eliminate geographical barriers, automate administrative tasks, improve productivity of professionals, promote eco-friendly processes, and finally, deliver a quick, economical and effective solution to disputes.
E-commerce transactions and relationships generate disputes, and this has translated into an unprecedented “growth industry” of disputes. In recent decades, global companies have handled disputes involving domain names which have been resolved through an online arbitration process. India has the potential of a larger growth industry of disputes in the 2020s because the new technologies have made possible huge numbers of transactions and relationships across the board.
National laws regulating arbitration in many civil law countries have broadened the form requirement of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (‘the New York Convention’). These include Germany, France, Austria, Slovenia, Greece, The Netherlands, Ukraine, and Switzerland. Under the laws of these countries, the form requirement includes electronic communications such as e-mail communications.
For this, the low hanging fruits to be plucked are those cases which are document heavy. Civil cases and commercial dispute resolution offer an ideal starting point.
So what would work to provide access to justice more accessible
There is no substitute for open court hearings. During these challenging times, the response from the Supreme Court of the country to switch to video conferencing for conducting hearings was both prompt and effective.
What could perhaps be considered and examined is that open court hearings should take place in matters of constitutional importance and complex civil and commercial matters. It would be useful eventually to have a blend of e-courts and open courts to make progress and deliver justice to all sections of the society. No doubt there would be teething problems initially like everything else, but in the long term there lies a great opportunity and solution.
To what extent will the virtual courts/online dispute resolution make inroads and replace the existing set-up? The answer lies primarily in identifying the type of disputes which can be successfully resolved using virtual hearing and artificial intelligence. ADR has occupied the place it has today owing to the delay in resolution of disputes through the traditional infrastructure of courts. The quest for making ADR efficient, faster and cost effective has led to new platforms such as ODR. ODR is a step ahead of the ADR process where claims are filed on an online dispute resolution forum and the verdict is given without the parties ever having to be personally present. Proceedings of specialised tribunals are another area where matters can be examined and be filed online on the basis of written submissions and documents.
While the Supreme Court of India and High Courts in the country have laid down guidelines for videoconferencing during the lockdown, that is not the only solution to keep the essential services of the courts running. We will require a complete digitisation of the judiciary – eFiling, eHearing, eTrials, uniform structure of judgments that enable easy search and analytics to spot similar cases – perhaps a unique case number that remains the same from lower through to the Supreme Court and an app to inform clients about their next hearing. We would also require Judges, clerks, lawyers and clients to be trained on the procedure and technology.
Only a limited section of the country truly can afford to have access to justice. India is truly at the cusp and needs to grab the opportune moment to set an example. This will also pave the way for ease of doing business which in turn would attract greater Foreign Direct Investment and also be efficient for enforcement of contracts. Processes will need to be designed by experienced people to get the best out of the selected technologies so that access to justice becomes more accessible in times to come not withstanding the aforesaid blend of justice being imparted at the present moment.
*(Barrister) Advocate, Supreme Court, Partner at Jafa & Javali, Advocates, New Delhi
[2] (1955) 2 SCR 955
[3] (1966) 3 SCR 744
[4] (2017) 4 SCC 150
[5] Ibid
[6] (2018) 1 SCC 62
[7] (2018) 1 SCC 560
[10] Ibid
[11] Africa Arbitration Academy Protocol on Virtual Hearings in Africa 2020
https://www.africaarbitrationacademy.org/protocol-virtual-hearings/
