Virtual Courts - Black Fungus In The Supreme Court By Overdose

Hearings through video conferencing came to the Supreme Court's rescue at the end of March 2020. It enabled SC to hear urgent matters during the national lockdown.

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

In fact, at the cost of the livelihoods of uncountable lives connected to courts, SC has continued to attempt to force a behavioural change in lawyers. As if destruction by Covid was not sufficient.

Oft-quoted concepts of constitutionalism and the democratic process have died in silence while SC is unconstitutionally attempting to abrogate to itself legislative powers of the Parliament to make structural changes to judicial hearings. The eventual beneficiary of this being big-tech companies. Not justice. Not citizens.

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 hearings through video conferencing.

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

I. Justice Delivery System- Open And Transparent

Throughout history, unlike the executive function, the 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 presence of 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 their 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 democratic check on the conduct of humans who occupy positions of power in courts, including judges.

The court-community also helps in keeping track of various proceedings and legal issues pending in courts. Many a time, 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 categorise 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 law knowledge enables a lawyer to cast a client's facts in a legal framework for judicial determination. From the point of view of the 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:

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

2. 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.

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

4. Oral advocacy also ensures that only the core issues involved in the matter are being argued.

5. Oral advocacy facilitates 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 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 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. Buildings of important institutions of the country serve as symbols of national identity and power. Architecture has been used throughout history to exhibit the power of the state. This crucial aspect of the exhibition of judicial power is 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 SC by personally appearing before it. This act of physical submission before the court is an important aspect of the 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:

I. End Of The Bar – A "well-organized system of judicial administration postulates a properly equipped and efficient bar," noted the fourteenth Law Commission Report. A robust bar is a check and balance on the constitutional authority exercised by judges. Saving them from becoming constitutional dictators. The very existence of a robust bar will 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. 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, adding to the eventual building and sustenance of the bar.

By taking away the physical singularity of the SC 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.

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

1) the duty of the court to provide audience of the proceedings to the public.

2) 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 the 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 is made face-to-face rather than through an intermediary or medium.

Virtual courts may allow many to watch proceedings online. However, 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.

III. 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 break through this lobby.

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

IV. 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 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.

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

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

SC has a dedicated Legal Aid Committee and Schemes. 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 person.

To address this issue, SC 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 SC windows at the HCs.

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.

II. 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, SC has lawyers who specialize in conducting matters at the SC.

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. Like a neurosurgeon ought not to carry out a hip replacement surgery, every judicial institution must be designed keeping in mind the difference and importance of a lawyer's forum specialization.

Equally, every lay litigant deserves to understand this difference. Therefore, saying that virtual courts would enable economically weaker clients to get local lawyers for SC matters is nothing short of Marie-Antoinette's "Let them eat cake" statement.

III. 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 the 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 the justice delivery system makes it an Article 21 issue and outweighs any possible cost reduction.

IV. Disposal Friendly - Virtual courts are only a substitution of a platform. Better housekeeping methods are required to improve the efficiency of the SC. Not virtual courts. Any methods to bring in efficiency in the disposal, 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 the internet adding to the overall inefficiency.

V. Minimizing Role Of A Lawyer – As stated earlier, bar and oral advocacy both have very important roles to play 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.

VI. Convenient for lawyers – There is a difference between facilitation and convenience. Judicial institutions must be designed so as to facilitate unhindered hearings to lawyers representing the litigants. However, in supporting video conferencing, this responsibility is confused with convenience. Institutional decisions could not be taken for the convenience of lawyers. The institution is to render justice to people, not to improve economic prospects for its practitioners. Physical hearings are open to all lawyers. Convenience could not be a ground to run the main purpose of the institution to the ground.

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, or worse, through office notifications.

Such drastic changes impacting the rights of people under Articles 21, 14, 19, and 32 could only be brought in by way of a constitutional amendment, especially to Articles 124 and 130. SC cannot colourably 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 long-lasting policy decisions ought not to be taken during times of emergency, especially when the bar and its members cannot 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, SC 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. Every time the number of cases goes beyond the identified benchmark, the courts automatically switch to virtual mode and vice-versa.

2. Related to the decision by the Delhi government on comparable industries. E.g. If Delhi government decides to open congregation-sensitive businesses like government offices, restaurants, and theatres, then courts must 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 HCs and trial courts, and also like other government offices, a sincere attempt should be continuously made by the SC 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.

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.

An extended version of this article was first published on LawBeat.in.