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Bear Grylls, who is the protagonist of the show Man v. Wild, showcases various survival skills in the wild. In one episode[1], out of desperation for water and solely to save his life, Mr. Grylls drinks the fluid which comes by squeezinga fresh lump of elephant dung. The disgust could be swallowed by the viewer as an act of desperation for survival.

But imagine what if this act of desperation was sought to be substituted by your regular water in your daily life? What if you were asked to give up water altogether and substitute it with this freshly squeezed elephant dung fluid?!

Substituting open court hearings of the Supreme Court with video conferencing as a regular practice even during non-emergency times is one such idea.

Undoubtedly, video conferencing came to our institution’s rescue in the end of March 2020. It enabled Supreme Court to hear urgent matters during the national lockdown.

However, video conferencing outgrew its purpose by July 2020. With the Unlock 2.0, it was the constitutional duty of the Supreme Court to restore normalcy and status quo ante in a phased manner. Sadly, Supreme Court did not even attempt to follow through.

At the cost of the livelihoods of uncountable lives connected to courts, Supreme Court has taken this opportunity to impose long-term measures on the Bar, in the forced absence of the Bar. As if destruction by Covid was not sufficient.

Oft-quoted concepts of constitutionalism and democratic process have died in silence. While Supreme Court is unconstitutionally attempting to abrogate to itself legislative powers of Parliament to make structural changes to judicial hearings.

Such changes ought to have been organic, not forced. In this dictatorially imposed institutional excitement of jumping off the cliff, it is important to discuss the subtle aspects of justice. These are inherent in physical courts and inherently absent in video conferencing.

It is important to clarify that this piece is restricted to dealing with substitution of physical hearings with video conferencing. Advantages and disadvantages of digitization of courts and using video conferencing for ancillary housekeeping procedures of the courts have not been considered herein.

Also, with no certain end to this pandemic in sight, it is constitutionally imperative for the Supreme Court to lay down a clear policy for opening and closing of physical courts. A few suggestions in this regard are provided at the end.

SUBTLE ASPECTS OF JUSTICE IN PHYSICAL COURTS

A few important subtle aspects of justice inherent in physical hearings are:

I. Justice Delivery System- Open And Transparent

Through history, unlike executive function, judicial function has always been conducted in the open. In any fair setup, from panchayat to King’s court, judicial proceedings have always been conducted directly under the gaze and presenceof the public. In fact, in Narada Smriti it is recorded that even a spectator in the court could express an opinion, if she had knowledge of the subject. As discussed later, both gaze and presence are an important check on the judiciary.

II. Courts Are Communities Not Transactional Institutions

Court proceedings are not transactions between lawyers and judges. They are a process to identify justice with various subtleties ensuring fairness.

Courts are not a complete embodiment of its judges. Courts consist of various other important constituents including the Bar, lawyers, court-staff, journalists, libraries and its staff, clerks, chambers, supporting staff, etc.

In Physical Courts, all these constituents come together to form a Court-Community, which is the safe-keeper of generations of practices and procedures in the art of dispute resolution.

This Court-Community is also a necessary check on conduct of humans who occupy positions of power in courts including judges. For e.g. any incident of a judge losing their temper, or a family member of a judge reaping benefits, creates a flutter in the corridor of the courts. This flutter acts as a counter-check on the judges. The Court-Community is always aware of the true character of a judge, despite the image-making news portals.

This grapevine also helps in keeping track of various proceedings and legal issues pending in courts. Many a times it is the clerks, court-staff, or the library staff, who have better information on critical procedures and pending issues.

The contribution of the Court-Community to the justice delivery system should not be underestimated. As stated earlier, courts are process-based institutions, and the Court-Community is an important part of the process.

III. Unhindered Oral Advocacy Central To Justice

A few economists have attempted to categorize lawyers as Rent-Seekers. The assumption is that the work lawyers do has no value addition in the economy. Even from a transactional point of view this argument is fallacious.

It takes a person years of training and learning to develop a judicial intuition. This judicial intuition is to identify justice amongst various competing principles.

This judicial intuition coupled with knowledge of law enables a lawyer to cast a client’s facts in a legal framework for judicial determination. From the point of view of division of labour, this ensures efficiency in the system.

Besides this, lawyers in India have an important role to play by placing oral arguments before the courts. These oral arguments, especially in the context of our country, are of utmost importance for the following reasons: -

a. Courts are overburdened with work and the judges cannot be expected to completely imbibe a case solely by reading the brief or pleadings.

b. The quality of pleadings is not always of a quality which by itself can represent the required ethos, logos, and pathos to fully represent the case of the party.

c. Culturally, in our country every person requires a sufficient oral hearing to be satisfied of the fairness of the process. Without such a hearing the cause of justice completely fails on its citizenry.

d. Oral Advocacy also ensures that only the core issues involved in the matter are argued.

e. Oral Advocacy facilitates by discourse and interjections between the bar and the bench, the true nature of the proposition of law in question is borne out.

In physical courts, oral advocacy is natural. It is a direct natural interaction of lawyers with judges and the judicial system. It is unhindered by variables of internet speed; video quality; sound quality; and the inevitable mismanagement in hectic matters.

But most importantly, Physical Courts do not have a mute button for lawyers. In video conferencing there is the Orwellian ‘Control Room’ switching off mics and cameras of lawyers at will.  

It is hard to replicate the significant advantages and subtleties of a face-to-face interaction between humans. The Art of Rhetoric, as Aristotle called it, is absolutely lost in virtual courts.

IV. Majesty Of The Court Also Lies In Her Architecture

Power resides where people believe it resides. Keeping this truth in mind, buildings of important institutions of the country serve as symbols of national identity and power. Architecture has been used through history to exhibit the power of the state. This crucial aspect of exhibition of judicial power is terribly underestimated in virtual courts.

V. Physical Submission To The Majesty Of The Court

From the President of India to big Industrialists, many have submitted to the jurisdiction of the Supreme Court by personally appearing before it. This act of physical submission before the court is an important aspect of judicial process. It is not mere symbolism. It is important that every lawyer and litigant first submits to the majesty and authority of the court before it seeks its indulgence.

DISADVANTAGES OF VIRTUAL COURTS

In the above context, it is important to look at the disadvantages of substituting physical courts with virtual courts:

1. End Of The Bar – The 14th Law Commission Report noted that a “well- organized system of judicial administration postulates a properly equipped and efficient Bar”. A robust Bar is a check and balance on theconstitutional authority exercised by judges- saving them from becoming Constitutional Dictators.

The very existence of a robust Bar would come into question if virtual courts are allowed to substitute physical courts.

In a physical court system, any lawyer, whether she has a matter or not on a particular day, is allowed to enter the court-premises and freely attend any proceedings. In her pursuit, she can observe matters of her interest, argued by great lawyers of the Supreme Court. This process is easy, anonymous, and convenient.

But besides observing the court-proceedings, her very presence in the court corridor ensures that she is in a physical space where she would inevitably meet and interact with other lawyers.

Consequently, even an unwilling person by her sheer physical presence adds to the process of community building in the court and the eventual building and sustenance of the Bar.

By taking away the physical singularity of the Supreme Court and substituting it with virtual courts, the Bar and the community around it would completely break within some time. There will be no reason for many to come to court premises every day.

Without a strong bar a strong check available in the justice delivery system will automatically become redundant.

2. Gaze Of The Audience – Against Concept Of Open Courts – The principle of having Open Courts has two important aspects:

(i) the duty of the court to provide audience of the proceedings to the public.

(ii) the aspect of Open Courts as a psychological check on the judges and the justice delivery process.

The principle of Open Courts till today presumed physical presence of the audience in court. So that the audience can see the judges. Also, more importantly, the judges too can see the presence of the audience.

There  are  many studies in  psychology  of  how  honesty,  generosity,  and  other human  decision-making  processes  are  positively  impacted  when  the  decision are made fact-to-face rather than through anintermediary or medium.[2]

Today because of terrorism, the courts are not completely open to the public. However, it is open for all lawyers. It is also open for litigants coincidently present in that particular court as well.

Virtual Courts may allow many to watch proceedings online, but that would not satisfy the second aspect sought to be achieved behind the principle of Open Courts.

In Virtual Courts, the judges and lawyers would not be able to see the gaze of the audience, which as stated earlier, is a psychological check in itself.

3. Entry Barrier To Profession And Nepotism – This disadvantage is an inevitable consequence of the eventual end of the Bar because of Virtual Courts.

By restricting the physical access to courts and the Bar, Virtual Courts would perpetuate the practice in the hands of the few reigning today. Young lawyers with humble backgrounds would have no way to breakthrough this lobby.

Free physical access to courts and consequently to the Bar ensures that despite a humble background one can establish herself as a successful lawyer at the Supreme Court.

4. Destroy Connected Livelihoods – Every court complex is a small economy in itself and supports a whole economy of supporting actors like eateries, cobblers, photocopy persons, etc. This whole ecosystem will also perish if physical courts are substituted by virtual courts.        

FALLACIOUS ADVANTAGES OF VIRTUAL COURTS

A few advantages, which are fallacious in reality, are quoted in support of Virtual Courts. Most of these so-called advantages have been borrowed from foreign jurists like Mr. Richard Susskind, who have academically voiced support to virtual courts in the context of developed countries like Norway, etc. Borrowing and applying the same norms to India is like attempting to put a dog collar on an elephant.

Some of these fallacious advantages are: -

1. Access To Justice – It is argued that virtual courts would improve access to justice. Access to the Supreme Court is an economic issue. With sufficient resources, access to Supreme Court is easy and convenient.

However, if resources are scarce, then the biggest barriers are of information, connectivity, and communication.

Supreme Court has a dedicated Legal Aid Committee and Schemes. Besides this there are many NGOs and individual lawyers who are more than willing to undertake pro bono work. However, people are not able to take advantage of these schemes. This is because of the lack of information about the schemes and connectivity with the right the person.

To address this issue, Supreme Court should have a single window of the Supreme Court Legal Aid Committee at every High Court.

A mechanism should be devised to render these schemes for the poor and the middle-income groups through these Supreme Court windows at the high courts.

These litigants should not be made to travel to Delhi for the same. Access can further improve, if court proceedings are telecast online with a link provided to the client.

Virtual Courts do not address these issues at all.

In fact, virtual courts would aggravate the digital divide fault-lines by adding technology as a barrier not an enabler. The presumption that all lawyers could afford and manage technology throughout the country is completely erroneous.

2. Access To All Lawyers –Every forum/court has its own specialized Bar of lawyers. A trial lawyer has a different skill-set from an appellate lawyer. Accordingly, Supreme Court has lawyers who specialize in conducting matters at the Supreme Court.

It takes years of experience and training to understand the nuances of a particular court/forum. To really understand the role, point of view, and the way that a particular forum approaches matters filed before it.

Institutional decisions must recognize the need for a specialized Bar. Every lay litigant deserves to know the difference and importance of a lawyer’s forum specialization.

Therefore, saying that virtual courts would enable economically weaker clients get local lawyers for Supreme Court matters is nothing short of Marie-Antoinette’s ”Let them eat Cake” statement.

3. Less Expensive Than Physical Courts – This is a penny-wise pound-foolish argument at best. First, the expenses would not drastically reduce even from the point of view of opportunity cost of the real estate on which courts are currently running. However, a detailed explanation on how expense would not drastically reduce is not an argument in principle. In principle, the adverse effect virtual courts would have on justice delivery system makes it an Article 21 issue and outweighs any possible cost-reduction.
 

4. Disposal Friendly - This is a fallacious argument. Virtual Courts are only a substitution of a platform. Any methods to bring in efficiency in disposal for e.g. allocated time for arguments, etc., can equally be brought about in physical courts. In fact, Virtual Courts will bring into the system more variables like dependency on technology and internet adding to the overall inefficiency.
 

5. Minimizing Role Of A Lawyer – As stated earlier, Bar and oral advocacy both have very important roles toplay in the Rule of Law and in the delivery of justice. Minimizing the role of lawyers would eventually lead to making Constitutional Dictators of judges - switching off mics and cameras at will.
 

6. Convenient for lawyers – Firstly, as pointed above, Virtual Courts are destructive to the practice and entry of majority of the lawyers. It is beneficial only for the elite in the Bar.

Secondly, it is destructive of the specialized Bar of the court, which is constituted of regular practitioners of that court. This disadvantage is best depicted by the consequences that may follow if you decide to get a Neurosurgeon to carry out a hip-replacement surgery. 

Thirdly, institutional decisions ought not to be taken keeping in mind better economic prospects for practitioners. Physical hearings are open to all lawyers. Convenience could not be a ground to run the institution off the cliff.

CONCLUSION

Only By Way Of A Constitutional Amendment

The far-reaching impact virtual courts would have on the justice delivery cannot be allowed to be made by a mere amendment to the Supreme Court Rules under Article 145. Such drastic changes impacting rights of people under Articles 21, 14, 19, and 32 could only be brought in by way of a Constitutional amendment, especially to Article 130.

Supreme Court cannot abrogate to itself these constituent and legislative powers.

Not Before Normalcy Is Fully Restored– Constitutionalism

Also, the   above   amendment   or   any   substitution   should be   considered   when   full normalcy has been attained. It should not be done before the Bar returns to the court corridors. Oft-quoted Constitutionalism demands that such longlasting policy decisions ought not to be taken during times of emergency, especially when the Bar and its memberscannot meet, discuss, and fully debate the issue. 

IN The Interim - A Clear Policy constitutionally required 

The end of this pandemic is uncertain. Whether this virus will relent or evolve because of the vaccine is anyone's guess. Scientists have no definite answers. 

Accordingly, Supreme Court must have a clear policy on physical courts/hearings in the interim. This policy could either be:

1. Related to the daily number of positive cases in Delhi. For e.g. a reasonable number of daily positive reported cases in Delhi, say 10000, could be set as a benchmark. Every time the number goes beyond 10000 per day reported cases in Delhi, the courts could automatically switch to virtual mode next day for a week. Likewise, every time the cases go below 10000 per day reported cases, physical courts must resume within a week; or  

2. Related to decision by the Delhi Government on comparable industries. For e.g. If Delhi Government decides to open congregation-sensitive businesses like offices, restaurants, and theatres, then courts should automatically follow suit and open physical courts and vice-versa.

After more than a year of the pandemic, a clear policy on physical and virtual courts is not only important, but constitutionally required. Virtual courts are only for emergencies and cannot colourably become the norm. Continuance of this ad hocism is constitutionally abhorrent and unacceptable.

Like many high courts and trial courts, and also like other government offices, a sincere attempt ought to be continuously made by the Supreme Court to physically open and commence work with the required safeguards. 

Natural means of interaction and communication are essential to the process of justice. They ought not to be substituted, especially for short-sighted advantages with long-term adverse effects.

As Justice A.K. Sikri rightly pointed out, technology should be used to augment our work, not automate it. Virtual Courts is a misstep in the wrong direction to automate our justice delivery process and to make it into a judge-centric transaction. This emergency measure should not be seen as a long-lasting substitute: there should always be a good reason for wearing your pants on the head!

Virtual Courts started as a necessity. But like steroids for covid, its indiscriminate use has become the Supreme Court’s Black Fungus.

[Editor's Note: The Author chose to stay anonymous]