Covid-19 has been affecting every sphere of our lives for the past many months and it is evident that the same would continue for the next few months, to say the least. Amongst others, judicial system in India has seen immense pressure to adapt to the existing circumstances posed by the pandemic and provide a redressal platform for the existing and future litigation. Accordingly, the judicial and the quasi-judicial authorities (referred jointly as ‘forum’ here) have begun to take up matters via virtual mode. While such a step was necessary in the wake of the pandemic, how far is it effective in becoming an alternative to personal hearing?
During the initial phases of lockdown, the forums had restricted the online hearings only to the urgent matters. However, with the continuity of the ‘virus’, lockdown and uncertainty, various forums have notified the modalities and Standard Operating Procedure (‘SOP’) for holding hearings through video conferencing till further notice even for non-urgent matters. While there is no denying the fact that there is huge backlog of cases pending across various forums, but at the same time one needs to be mindful of the multiple issues involved in a virtual hearing which are discussed in the subsequent paragraphs.
In India, neither the forums nor the advocates / representatives are well equipped with the technological infrastructure / knowledge required for conducting an online hearing. Even the Bar Council of India has strongly opposed continuation of the virtual courts post lockdown as 90% of the lawyers and judges are not aware of the technology[1] - the data remains valid even for the period of the pandemic. Besides the awareness or knowledge of the technology, the access to or availability of technology is also a key factor. Not all practitioners or courts are equipped with high-bandwidth internet connections, or with computer systems and software which can connect to the network seamlessly. Advocacy is a carefully practised art, where the arguments and the flow of presenting the case is of critical importance. There are situations when an argument is presented and an instant response / rebuttal is sought from the other side failing which the ruling has to be in one’s favour. Now, if technological inhibitions prevent and obstruct this flow, and worse even if the case is adjourned after presenting the arguments, it would lead to prejudicing the advocacy irreparably.
Another major issue concerning virtual hearings is that it neutralises the effect of non-verbal skills of the representative. In communication, a speaker’s words are only a fraction of his efforts. In fact, Prof. Albert Mehrabian’s findings state that the words, tone of voice, and body language respectively account for 7%, 38%, and 55% of personal communication.[2] In such a scenario, it would be highly difficult for a representative to put forth his/her submissions in an effective way before the Bench, ascertain if they are able to appreciate the same and in an adverse scenario, change the strategy of the arguments being advanced. Thus, the art of advocacy, which is based on a collection of practised skills, is diluted significantly in the virtual court scenario.
The virtual hearing may not be effective for cases which involves complex factual and legal issues, requiring reference to voluminous papers and compilation of legal precedents. Further, experience suggests that these complex issues involve many propositions whose adoption and placement before the Court depends upon the course of hearing e.g. whether the Judges / Members are interested in a proposition, whether all parties to a dispute have correctly appreciated the arguments advanced. These factors can be deduced only in an in-person hearing. Virtual hearing fails to address these issues due to inherent limitations of the system.
In certain cases, parties may have to make urgent last-minute submissions before the hearing and in many cases, these are shared over e-mail communications. Thus, sharing of documents via electronic mode, might poses threat to data security or data privacy.
Having observed the cons relating to virtual hearing, virtual hearing may be a good forum for those cases which have already been decided either by a higher judicial forum or in other years / other cases or where the cases do not involve length arguments / reference to voluminous paper books / simple legal issues. Or, where due to any unavoidable reason if the litigant is unable to argue its case on a given case, the virtual court can be used for seeking adjournment. It would save on lot of time for the litigant as well as for the court.
In light of the aforesaid concerns, it can easily be said that the virtual hearings cannot become an alternative to the courtroom hearings, barring exceptional cases. While the same is a good option to deal with the urgent, not-so-complex matters during this period of pandemic, it cannot be extended to deal with matters which are complex in terms of facts and law, and require in-person debate and discussion.
[The authors are Principal Associate and Senior Associate, respectively, in Direct Tax practice of Lakshmikumaran and Sridharan, Mumbai]
[1] K Subramanian, “The epidemic and ensuring safety in courts”, The Hindu, Dated 11th May, 2020.
[2] Nagesh Belludi, “Albert Mehrabian’s 7-38-55 Rule of Personal Communication”, Right Attitudes, Dated 04th October, 2008.
