Adding to the list of “firsts” that courts across the country are undertaking every day due to the circumstances arising out of the COVID-19 lockdown, a Division Bench of the Delhi High Court recently heard and disposed of two petitions while the judges were sitting thousands of kilometres apart, in two different cities.

Justice Hima Kohli presided over the proceedings through video proceedings from her residence in New Delhi. Recently transferred from the Madras High Court, Justice Subramonium Prasad joined Justice Kohli from Chennai.

Justice Prasad, who had gone to Chennai last month, has been unable to return to the national capital due to the restrictions on movement announced by the Centre in view of the COVID-19 pandemic.

The first petition taken up by the Divison Bench was on the living conditions of homeless persons/daily wage workers who were living in the open, along the bank of the Yamuna river near Sarai Kaale Khan. The second petition concerned a request to allow the termination of pregnancy of a 29-year-old woman who was at a gestation stage of 23 weeks.

Interestingly, to arrive at its decision to allow the request to terminate the pregnancy, the Court heard not only the five counsel through video conferencing, but also the 29-year-old lady, her husband, and the Chairman of the multi-disciplinary Medical Board constituted in the matter.

When the complete lockdown of the country was first announced last month, many speculated that it would cripple not only our economy, but also our institutions.

With physical access to courts denied, it was feared that the working of courts would come to a complete halt.

But they say that necessity is the mother of invention and with the adoption of technology, the face of judicial functioning in India has witnessed a metamorphosis.

Soon after the announcement, Courts across the country, particularly in Delhi, began conducting hearings in urgent matters through the mode of video conferencing.

The Virtual Delhi High Court: How it works

While the Supreme Court has opted for the platform provided by VIDYO, the High Court of Delhi, as well as its subordinate courts, has been using the Cisco WebEx platform.

The High Court has been this platform for over a year as its video-conferencing system.

Hearings are facilitated by the High Court’s Information Technology Team, which sends a weblink to the presiding Judge(s) and the counsel concerned through email. The weblink connects the judges and the counsel for a virtual hearing.

Speaking to Bar & Bench on the logistics of such hearings, a reliable source involved in the process added that the court masters are being trained as coordinators for such hearings as they need to ensure that e-copies of pleadings, judgments etc are available during the hearing.

“In conformity with the norms of social distancing, a very restricted number of members of the IT team come to the High Court for arrangements and the others work from home. Till date, no two judges of the High court have physically sat together for a hearing. We have had meetings of the Administrative Committee, Full Court meetings through the platform...

...Through this mechanism, all the courts in Delhi, including High Court, have already dealt with more than 7500 urgent matters after the announcement of lockdown. We will soon have targeted certain important categories of ripe matters which can be disposed on the basis of written submissions alone, subject to consent of counsel for both the sides, a person close to the development informed.

One being asked if the hearings would be made public by sending the link, Bar & Bench was informed that the virtual hearings were being conducted in a “phased manner” and that the High Court was “working on” making litigants be a part of it.

How has the system fared thus far?

With the facility in its initial stage, a few hiccups have become part of the process. In a recent order passed by a Bench of Justices Jayant Nath and Prateek Jalan in an interim bail matter, it was noted,

These glitches aside, the conduct of virtual hearings before the Delhi High Court has been largely fruitful.

“In my experience, the hearing was as good as that of an actual Court hearing, if not better”, said Advocate Anand Varma, who appeared for AIIMS in the case concerning termination of pregnancy.

“The hearing was smooth and without glitches. The VC platform being used by the Delhi High Court is good. It’s because of the online hearing that the Court was able to hear the petitioners (who were at Gurgaon) as well as a senior doctor from AIIMS (who was the hospital campus) without having to adjourn the hearing”, Varma informed Bar & Bench.

He added that before the hearing, he even supplied a compilation of judgments through email and the same was taken on record by the Court.

Advocate Gaurav Bansal, who appeared before the High Court in several petitions concerning evacuation of Indian citizens from foreign countries, said that while the platform was user-friendly for a person with average technological skills, those who are not well versed due to their age or otherwise, may face problems.

“If your internet speed is fine, there will be no issues. The platform has no issues. We saved a lot of time”, Bansal said.

On a lighter note, he added that no facility could make up for the loss of socialization that lawyers are used to.

Meanwhile, Standing Counsel for the Central government, Anurag Ahluwalia. appreciated the efforts of the High Court staff to ensure seamless hearing. He said,

“The best part is that the High Court staff...the person who conducts it...the host.. is very dedicated about it. As far as technical glitches are concerned, there are none unless there is a bandwidth issue...When I appeared, I ensured that I had proper bandwidth and people are being cautious about such things. It’s just that it is a new way of arguing and people, including staff, lawyers and judges are getting accustomed. CISCO platform is one of the best worldwide.”

Additional Solicitor General of India Sanjay Jain also shared his experience of the High Court's virtual hearings.

“The primary difference (between virtual hearing and normal hearings) is that in video conferencing, you are aware that there is limited time. You do not have to interject because when you are not speaking, you have to mute your mike so that others are not disturbed...In one way it is very good, because it teaches us to argue with precision, to prepare in such a manner that you give your bullet points.

Such hearings increases the responsibility of the Bench also; that they cannot allow a party to go on and on...they have to proactively monitor the hearing. More than a court, they have to act like an anchor.”

ASG Jain, however, added that although it is a good arrangement for urgent and very urgent matters, the present phase may not be a realistic assessment of the efficacy of video conferencing hearing in the longer run for regular ordinary matters.

Further introspecting on the adoption of the system to hear regular matters in case the lockdown is extended, ASG Jain stated,

“When you go beyond urgent and very urgent, then you go into the realm of all matters. There are five working hours or 300 minutes. So you can accommodate about maximum 16-17 hearings. Now who will decide which matter out of the all other matters is more important, because you have limited time to give. In video conferencing, you have a limited time to allocate to everyone. After exhausting the fresh matters, urgent matters, matters that are on top of the list may be unfairly heard...”

He further cautioned that the present system has no scope for passovers, as a time slot is given for hearings. Under such a circumstance, if one of the counsel is not available or if he needs instructions, he would have to go offline and then again a link would have to be sent, he said.

“It will be a nightmare for the court staff. Lawyers may find it logistically very difficult.. Right now, you can refer to a few pages but when you would have to show documents, they have to be in the court file or available with us and then highlighted on the screen.

If the documents are voluminous, by the time I am able to tell the Judge, 10-15 mins will be over. Suppose one has to show evidence and there are 200-300 pages. In such a short span of time, it cannot happen. You will end up taking the time slot of some other matter.”

He thus remarked that at this stage, final arguments, trials on the original side, and conducting evidence have to be ruled out.

Apart from these, he opined, miscellaneous arguments can take place through video conferencing.

On being asked if there were any upgrades that the system required, ASG Jain shared that in case of an undue delay, the original link gets automatically deactivated and the same must be kept alive by the court master. He also suggested that the orders should be uploaded at the earliest, as there may be some audio disturbance at the time of order dictation.

THE WAY FORWARD

The High Court has been constantly evolving its guidelines to streamline the process of hearings before it.

The video-conferencing facility is now being provided in the High Court premises for those interested and it is expected that the number of Benches to hear urgent cases on a daily basis will also be increased in the coming days.

However, given the financial distress caused by the lockdown, lawyer bodies, such as the Bar Council of Delhi, have been raising their concerns over the limited functioning of the courts.

As uncertainty looms over the fate of the lockdown after May 3, lawyers have been pressing for expansion of the scope of cases being heard by courts, including the High Court.

Although the Chief Justice of the Delhi High Court, Justice DN Patel has constituted a Committee to put in place a ‘Graded Action-Plan’ to meet the challenges in restoring the normal functioning of courts in the city post-lockdown, the most pertinent concern of a larger section of lawyers, for now, continues to be the loss of livelihood and source of income.