Why we ought to have hybrid hearings

The Supreme Court recently rather disappointedly noted that despite its clear push for continued use of technology in court hearings in the post-pandemic world, many High Courts and tribunals across the country have ceased to do so.

The Court issued notice to the Registrars of High Courts as well as the National Company Law Tribunal (NCLAT), the National Company Law Appellate Tribunal (NCLAT), the National Green Tribunal (NGT) and the National Consumer Disputes Redressal Commission (NCDRC) seeking their responses in this regard.

Being a lawyer practicing in Mumbai, where most courts have switched back to physical hearings, this hit home.

Virtual hearings were introduced in India during the COVID–19 pandemic. As the world went into a shell, the essential function of dispensation of justice in the country witnessed a digital revolution of sorts. For the first time in the history of the Indian legal system, court proceedings were held in a virtual form where all the parties – the judges, lawyers and litigants – attended matters without having to be physically present in courtroom. This system was introduced, quite commendably, in a swift manner in many courts across the country.

As a result, many of us were able to continue working and earn a living without having to be physically present in a courtroom.

As the pandemic eased and travel restrictions were partially lifted, the courts moved to what is called ‘hybrid’ hearings. These hearings offered lawyers a choice between physical and online hearings. Some courts allowed a lawyer representing one party to appear in virtual mode while the advocate for the other party was present in court physically.

Gradually, however, as the world fully opened up again after the pandemic, the courts hesitated to use technology to conduct court proceedings. Many High courts and tribunals, including the NCLT, switched back completely to physical mode of hearings.

One may question what is wrong with this. Isn’t this how the courts have traditionally been functioning?

Yes, except that the pandemic gave us a glimpse of how technology could be used to ensure that access to courts and justice need not be restricted to a privileged few. To shun that and crawl back to the pre-pandemic era version would be throw away the tools of modernization and inclusivity, which are the need of the hour.

As a practitioner of law for the past decade, I have seen a number of promising young women advocates make a switch to in-house roles, join law firms in less court-facing roles, or advisory positions, or exit the profession altogether. The primary reason that led to this transition (and exit in many cases) was familial responsibilities, including motherhood.

Tools such as hybrid hearings can go a long way in ensuring that the participation of women in the legal profession increases. Such a setup caters to the special needs of not only women who are new mothers or who shoulder familial responsibilities, but also care-givers to the elderly or infirm who may find it difficult to be physically present in a court room to argue a case.

Similarly, physically challenged lawyers will have greater access to courts with virtual hearings. Technology thus has the potential to make the practice of law more broad-based and inclusive than it was before. These objectives also find a mention in the ‘Core Principles’ of the Supreme Court e-Committee.

Perhaps virtual hearings could even solve the problem of overcrowded courtrooms and crippling infrastructure.

In international arbitration, where parties and their lawyers hail from different jurisdictions, online hearings help save substantial costs and travel time. This advantage can be offered to litigants in India who are not situated in close proximity to the higher courts or specialized tribunals. It would also make the justice delivery system not only cost-effective, but also transparent and accountable.

There are many detractors who argue that physical hearings ought not be replaced by online hearings. The arguments range from online hearings suffering from technical glitches to the ‘feel’ or ‘experience’ not being the same as an in-person hearing. While these concerns may seem justified, I do not see why hybrid hearings cannot be embraced wholeheartedly. Without completely doing away with the physical setup, it offers an option of choosing between a physical and online hearing to lawyers.

The creation of digital infrastructure for modernization of the justice delivery system involves use of tax-payer money. It would be a great disservice if the same is allowed to be wasted owing to a lack of use.

Madhavi Nalluri is a practising counsel at the Bombay High Court and NCLT, Mumbai.