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Old order changeth to virtual courtrooms

Naveen R Nath | Updated on June 11, 2020 Published on June 11, 2020

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Digital hearings have their pros and cons. And moments of hilarity

* Across the country, people are trying to cope with digital trials through video conferencing. While most complaints relate to poor connectivity and the absence of a clear-cut protocol for hearings, many lawyers feel that hearings are more focused, formal yet relaxed

Imagine having to suddenly drive a Tesla when you’ve steered an Ambassador all your life. Life in the judicial system in times of Covid-19 is a bit like that. The virus has disrupted the system in unprecedented ways. Filings and hearings in India remain suspended and only extremely urgent cases are being heard through video conferencing (VC). And for most, this is a new world altogether.

Across the country, people are trying to cope with digital trials, but even in urban centres, VC hearings have been throwing up niggles such as poor connectivity, unfamiliar technology, limited access to legal tools for lawyers who are not tech savvy and, in most cases, the litigant being unable to gauge or access hearings.

Judges and lawyers are clear that VC hearings are not a substitute for the real court. These are imperatives of an unprecedented crisis. The judiciary, just like the executive arm, cannot remain suspended while the resumption of regular courts is clearly a public health challenge. The Madras High Court resumed regular hearings last week and, in no time, three judges were found to be Covid-19 positive. The court has since suspended regular sittings and reverted to VC hearings.

VC hearings have evoked mixed reactions. While most complaints relate to poor connectivity, audio issues, listing hassles and the absence of a clear-cut protocol for hearings, many in the legal fraternity also agree that it has worked reasonably well so far. Lawyers feel that hearings are more focused, formal yet relaxed.

The quality of hearing has improved as pressures of hearing in an open court do not bear upon judges and lawyers. But the whole drama of an open court hearing is sorely missed. There are no audiences, no gossip in the Bar room over tea and pakoras, no bragging about victories in court or frustration over losing a good case. Sitting with a laptop or, often, a smartphone, dressed in a white shirt and collar band while still in your jeans or pyjamas isn’t a particularly impressive sight for your partner and kids. And speaking of pyjamas, there are numerous instances where lawyers have appeared on VC in a t-shirt or lying in bed, oblivious to the fact that the camera is on.

VCs in trial courts also present legal and ethical challenges. Judges are adept at observing the demeanour of a witness during a trial, something that they cannot gauge in a digital hearing. In criminal cases, the trip from judicial custody is often the only outing for an accused and they eagerly look forward to it. The undertrial also gets an opportunity to share grievances with the court and, literally, the production warrant means a breath of fresh air.

Covid-19 has affected the legal profession in other ways, too. Criminal cases have plummeted and litigants are apprehensive about initiating civil cases. In bread-and-butter litigations such as cheque bouncing cases and insolvency practice, too, due to pandemic-induced changes in law, litigation has been plugged for the next one year. Earnings have crashed. Many lawyers’ associations are financially helping young lawyers.

VC hearings have forced many old-timers to purchase laptops and smartphones. Suddenly, lawyers are going around looking for the ideal background for a VC hearing. Hearing protocols are slowly evolving. The best news is that courts have dispensed with black coats as they are seen as possible carriers of the novel coronavirus, since these are not washed after every use. Yet, seasoned lawyers continue to appear in VCs from the comforts of their homes or office in their coats.

A lawyer who received a last-minute intimation about a hearing was mortified when he realised that he couldn’t access his coat and band, which were locked in his malfunctioning car. He improvised — as he later said in a Facebook post — by cutting out a band using plain white paper and stapling it over his white shirt and appeared in the hearing.

VC hearings do provide judges with tools they could only wish for in a real court. Long and repetitive arguments and interruptions are the most common irritants in real court hearings. In a VC, the threat of the mute button works brilliantly.

These hearings also generate humour, the butt being the unfamiliar medium and technology. In a recent hearing before the Supreme Court, this exchange took place:

Judge: Madam, can you switch on the video? We can’t see you.

Lawyer: Can your Lordship see me now?

Judge: Yes, we can see you now. Dismissed. Next case.

Another case went like this:

Judge: There is no merit in this case. Dismissed.

Lawyer [speaking to the client sitting next to her, with the mike on]: See, they didn’t even listen to me.

Judge: Madam, we heard you loud and clear.

In a hearing before the Delhi High Court:

Judge: I am going to dismiss the petition with costs. Tell me how much your client shall donate to PMCARES.

Lawyer: Can it be any other charity than that, Milord? No one knows where that money is being spent!

Is a new order — or order, order — in the offing?

Naveen R Nath is a Supreme Court advocate

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Published on June 11, 2020
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