This blog post has been authored by Shrutanjaya Bhardwaj.
The pandemic has brought about a paradigm shift in the way justice is delivered in India. To adapt to the exigencies of the situation, courts have shifted to a model that allows virtual (online) hearings. Hearings have been exclusively virtual during phases of the pandemic, i.e., during lockdowns. In 2020 alone, the Supreme Court conducted 43,713 virtual hearings as per a Standard Operating Protocol issued for this purpose. When the public health situation has improved, courts have experimented with “hybrid” hearings where parties could choose to appear either physically or virtually.
Diverging views have been expressed by lawyers and judges on the desirability of continuing virtual hearings even in the absence of lockdowns. Some lawyers have supported the continuation of virtual hearings, contending that they reduce public movement, thus helping prevent the spread of the virus. In November 2021, a group of more than 100 women lawyers wrote a letter to the Chief Justice of India requesting that hybrid hearings be allowed to continue because digitally equipped courts are “more equal for women lawyers,” especially those with care-giving responsibilities. A contrary view is that some lawyers, especially those at the Supreme Court and national tribunals who rely on an inflow of cases from outside Delhi, have suffered due to virtual hearings. This is in part because (when physical hearings are the norm) lawyers from outside Delhi find it inconvenient to travel to Delhi and handle the case on their own, incentivising them to engage a Delhi-based lawyer. With virtual hearings, outstation lawyers would have little incentive to engage a Delhi-based lawyer to handle cases. Another concern is that virtual hearings prevent junior advocates from getting noticed while assisting their seniors in court, which in turn reduces their chances of getting briefs.
While acknowledging the validity of these concerns, this piece explores the legal question of whether litigants have a fundamental right to opt for virtual court hearings. At the outset, it is clarified that this post does not envisage a prohibition on physical hearings, for that would overlook India’s digital divide — not all lawyers and litigants have access to a stable computer and high-speed internet services. The limited argument advanced is that the virtual option could be insisted on as a matter of right. Further, it is treated as a given that certain judicial functions cannot be exercised virtually, such as habeas corpus petitions (that require the physical production of the detenu), production of the accused before a Magistrate within 24 hours of arrest (this again involves physical production), or in camera proceedings, e.g. in matrimonial disputes under the Family Courts Act, 1984 (for which the Supreme Court has ruled that video conferencing is not permissible).
A right to access courts
The fundamental right to access justice stems inter alia from Articles 14, 19(1)(a), 21, 32, and 226 of the Constitution. There are two possible conceptions of this right. The broader conception views the litigant as an active participant in the litigation process—constantly giving feedback to their lawyer, demanding accountability, ensuring that their perspective and views find reflection in the case ultimately prepared and presented before the court, and generally being in-charge of their case. Under the narrower conception, the litigant is understood as a dormant stakeholder, far removed from the actual process of litigation because they have handed over their brief to the lawyer, whom they have no option but to trust.
To be meaningful, the right to access justice must be understood broadly to allow the litigant to monitor and control their case. Under the broader conception, then, the bare minimum requirement of access to justice is access to the courtroom itself. In a non-Covid world, this would imply that the litigant must have the option to remain physically present inside the courtroom when the matter is argued. This is not only to enable the litigant to evaluate their lawyer’s performance more accurately—which could theoretically be achieved simply by live-streaming proceedings—but also to allow them to assist the lawyer on a minute-to-minute basis based on the questions that fall from the bench.
Further, many litigants may choose to not engage a lawyer and argue their cases themselves, in which case—whether one accepts the narrow or the broad conception of the right to access justice—litigants must have access to courts.
The pandemic poses a unique and specific challenge with respect to access to courts, i.e., exposing oneself to a physical courtroom entails the risk of being infected, especially during an ongoing wave of infections. This is aggravated by the severe overcrowding that characterizes many of India’s courtrooms. The fact that courtrooms are plagued by congestion was noted by the Supreme Court in a 2018 judgment on live streaming of court proceedings. In fact, only two months before the first wave arrived, the then-CJI lamented the “severe problem” of overcrowded courtrooms even in the Supreme Court. Given such congestion, social distancing norms and the wearing of masks are much harder to enforce, especially in the subordinate courts that lack proper infrastructure and staff. Insisting on physical hearings, therefore, straightaway implies that the litigant must choose between their right to access justice and taking requisite health safety precautions during the pandemic.
Distance and Inequality
With respect specifically to the Supreme Court—which sits only in Delhi and has no other benches—virtual hearings also serve as an eliminator of inequality. Research has shown that litigants situated geographically closer to Delhi file more cases in the Supreme Court compared to litigants situated further away. One likely cause for this contrast is that faraway litigants are deterred by the time and cost required to travel to Delhi and litigate their dispute in the Supreme Court. It was perhaps in anticipation of this difficulty that Article 130 of the Constitution allowed additional benches of the Supreme Court to be set up by the Chief Justice of India in consultation with the President; however, that power has never been exercised. (Similar concerns would apply to central benches of other adjudicatory bodies, e.g., principal benches of national tribunals.)
Further, though comparative research for High Courts is not available, one can extrapolate that geographically larger states would face similar problems with litigants finding it difficult to manage the time and cost of travelling to the city in which the High Court is situated. To combat this and ensure accessibility, several large states have multiple benches across the state. Even in respect of subordinate courts, it is a common litigation strategy to file cases in faraway courts to harass opponents.
Evolutionary reading of Article 19(1)(a)
Harassment of this nature was hard to address before the advent of video conferencing technology. But the Constitution must be receptive to technological advancement; our understanding of rights must change with evolving technological realities, and technological means should be used wherever possible to prevent and redress constitutional violations. On the issue of open courts, the Supreme Court adopted an evolutionary understanding of the right to receive information under Article 19(1)(a) of the Constitution. The earliest case to authoritatively rule on the right of the public to access courts was Kehar Singh (1988). The Supreme Court had held:
“The courts like other institutions also belong to people. They are as much human institutions as any other. The other instruments and institutions of the State may survive by the power of the purse or might of the sword. But not the courts. The courts have no such means or power. The courts could survive only by the strength of public confidence. The public confidence can be fostered by exposing courts more and more to public gaze.”
The Kehar Singh Court obviously had only physical court hearings in mind. But these observations were loyally carried forward in later cases, and eventually in 2018, the Court acknowledged the immense role that technology can play in ensure open access to courts, and held that open live streaming of court proceedings was a fundamental right protected by Article 19(1)(a) of the Constitution:
“By providing “virtual” access of live court proceedings to one and all, it will effectuate the right of access to justice or right to open justice and public trial, right to know the developments of law and including the right of justice at the doorstep of the litigants. Open justice, after all, can be more than just a physical access to the courtroom rather, it is doable even “virtually” in the form of live streaming of court proceedings and have the same effect.”(emphasis supplied)
Similarly, the rights of access to justice must be interpreted in consonance with technological advancements. Virtual hearings—which render distance meaningless—must now be understood as flowing from two distinct constitutional guarantees. The first is access to justice, which includes the right of the litigant to remain present in the courtroom. The second is the positive guarantee of “equal protection of the laws” under Article 14 of the Constitution, which implies equal opportunity for all litigants to access courts. Denying the option of virtual hearings to litigants would breach both these constitutional guarantees.
Conversations around continuation of virtual hearings—during and post the pandemic—must consider the fundamental rights of litigants to access courtrooms and to take reasonable health safety precautions to remain safe during the pandemic. While other policy concerns must be taken seriously, including the unique concerns of the members of the Bar discussed in the Introduction section, these cannot trump rights considerations flowing from Part III of the Constitution.
This blog was written with the support of the Friedrich Naumann Foundation for Freedom.