MADURAI: When the Centre declared a nationwide lockdown in March last, the functioning of the judiciary too came to a grinding halt. But how long could the administration of justice be put on hold! Amid some murmurs of discontent, courts soon started hearing cases online.
While a reasonable argument could be made about the shift saving money and time, the lack of a personal touch is seemingly the deal breaker for a cross-section of advocates struggling to find their moorings in the virtual world.
Virtual hearing: Not a new concept
High Courts across the country have favoured virtual hearing whenever judges moved between principal seats and benches due to a change in roster. However, such hearings took place on the court premises, with the advocates arguing the cases through the facility made available in the courtroom.
A costly affair
The president of the Madurai Bar Association, A Nedunchezhian, points out the teething troubles of the virtual hearing. “Not all advocates have modern smartphones. They also are limited by the lack of unlimited data packs or a broadband connection. Though I have a smart phone, it is not an advanced handset. I do not have data to spare for more than two hours of video conference,” he says.
“When many advocates are already struggling to make ends meet, they can ill-afford to spend a premium on sophisticated handsets or huge data plans,” he says, urging the government to offer data and smartphones for free to the advocates as part of Covid-19 relief package.
Psychological pressure
K M Riyaz Ahamed opposes virtual hearing tooth and nail. Ahamed practices law at a court in Tenkasi as well as the Madurai Bench of Madras High Court. He believes that physical hearing trumps virtual system when it comes to the nuances of the trade. “An advocate gets to understand the mood of the judges and stands a better chance at convincing them during physical hearings. However, online hearing creates a psychological pressure on both the advocates as well as the judges,” he explains.
To buttress his point, Ahamed recalls watching a video on social media wherein a single judge of the High Court Bench shared his experience on virtual hearings. The judge said that during the initial days of video-conference hearings, he lost his patience and scolded a young advocate. The reason he attributed for the outburst was the tension while adapting to virtual hearings. The single judge took recourse to yoga and meditation to prevent any such outburst in the future.
Disturbances
Virtual hearings are often riddled with noise such as that of traffic, echo, or sometimes by the inadvertent mistakes of the advocates. A case in point is the instance of an advocate leaving his audio unmuted. All the participants to the hearing could hear the advocate arguing with his wife.The judge had to shout several times before the advocate realised his mistake and muted the audio. In another incident, a young advocate, after arguing his case, inadvertently left his video on and sat in front of the camera in his vest. Only after the judge noticed the infraction and sought an explanation did the advocate realise his mistake. The gaffe amused the judge, who burst out laughing. The advocate escaped with a warning.
Demeanour of witnesses/accused
Advocates in lower courts claim that cross-examination in a virtual court may not be as effective as the one during an open court hearing. The Madras High Court Video Conferencing in Courts Rules, 2020, published in the Tamil Nadu Gazette last month dictates that cross-examination of witnesses or an accused can be done only in the presence of a coordinator appointed by the court to ensure that their statements are not tutored.
However, advocates are sceptical about its practicality. Advocate T Lajapathi Roy of Madurai says, “Physical presence of witnesses or accused helps the judges notice their demeanour which plays a crucial role in criminal cases. It enables them to analyse the non-verbal cues like facial expression, postures among others, and detect if the person is giving a false statement. But the same is not possible through video-conferencing.”
‘Virtual hearing has its merits’
Some advocates feel that virtual hearing is a convenient alternative. Advocate R M Arun Swaminathan says, “We are able to present our cases from anywhere. It saves both time and travel, and not to forget the travelling cost.” Not just private practitioners, former Special Government Pleader Aayiram K Selvakumar says he welcomes the transition. “Previously, government officials from all districts had to make multiple trips to the High Court to meet us for filing their response or counter affidavits. Now, everything is done through e-mail and WhatsApp which saves time and energy.” He was optimistic that the lessons learnt during the pandemic will be carried forward.
Filing of cases
However, advocates who hail virtual hearing too are disappointed with certain aspects of the new normal. While hearings have gone virtual, filing remains manual, forcing them out of their homes for filing procedures. An e-filing centre was established in the Madras High Court and the Madurai Bench but presently only bail and anticipatory bail petitions, which do not require payment of court fee, are permitted to be filed through electronic filing. Many advocates TNIE spoke to opine that courts must ensure all stakeholders are equipped and digitally literate before taking the giant technological leap. Training must be imparted to judicial officers, advocates and court staff to ensure a seamless transition, they opine.
Difficulties faced by court staff
A court staff says that it is impractical to shift completely to e-filing mode. “If cases are filed only through online mode, we have to take print out of the case bundle, scrutinise them, inform the defects to the advocates, wait for the rectified soft copy, then take a print out again, and the process goes on. Many case documents run hundreds of pages. In such cases, it results in wastage of papers, cost as well as time,” he says.
Suggestions
Since many advocates from rural areas experience connectivity issues, bar associations have been demanding restricted physical hearings. Advocate Roy says, “Advocates may be permitted to argue cases at court halls while the judges hear the same from their respective chambers through video conference facilities.” The Madurai Bar Association (MBA) of the High Court Bench gave a representation to the Chief Justice AP Sahi in this regard in June.
State Secretary of All India Lawyers’ Union (AILU) Advocate L Shaji Chellan says, “The impact of the pandemic is felt by all departments. If an official or head of a government department gets infected by Covid-19, the office is closed and disinfected and the remaining employees resume their function with more precautions. When government offices are open, why is the judiciary closing its doors on account of the pandemic?” he asks.
Chellan says that the double whammy of lockdown and closure of court premises has rendered newly-enrolled advocates incapable of earning. He denounces virtual hearing, saying it would never be equal to open court hearing. “It’s merely eye wash,” he says. Chairman of the Bar Council of Tamil Nadu and Puducherry PS Amalraj told TNIE that they have given several representations to the Central and State governments seeking payment of relief to advocates affected by lockdown. The Bar Council also sent a representation to the Chief Justice of the Madras High Court on Saturday to consider resuming physical hearing in courts by suggesting certain restrictions. Amalraj said he was hoping for a favourable decision in 2-3 weeks.
Clients and fees
Managing to get clients and arguing cases successfully in the virtual courtrooms also does not guarantee payment of fee. “Due to lockdown, face-to-face interactions with clients have become limited. If we call to ask for our payment, they either delay it or sometimes do not pick our calls. We cannot blame them too as they too are a victim of the pandemic and lockdown,” Riyaz says.
Another challenge faced by advocates practising in subordinate courts is making their clients understand the concept of virtual hearing. An advocate from Nagercoil says, “Owing to pandemic, execution of sureties in bail cases are done at the prison and the particulars also reach the prison authorities directly from the court. Hence, clients who receive bail through video-conference think that we have not done anything and sometimes refuse to pay the fee.”
The rules mandate...
The Registry of the Madras High Court has issued Video Conference Etiquette and Protocol in addition to the Madras High Court Video Conferencing in Court Rules, 2020, prescribing the rules to be followed in terms of conduct of participants during video conference, their attire, among others. Some are:
1Participants should not share sensitive information about the hearing witnessed by them while waiting for their turn
2Participants should not record or take screenshot of hearing unless special permission is granted by the court
3Though litigants are permitted to watch virtual hearing, they must wear formal attire and keep their audio muted
4When their case is called, litigants should unmute their video and the advocate concerned should identify whom he or she is representing