“The doors of justice shall be kept open”: A case for continuing virtual hearings even after the COVID-19 lockdown

When Chief Justice Godfrey Davis of the then High Court of Sindh suggested the closing of doors in a crowded court room, the lawyer retorted that “the doors of justice shall be kept open”.

Literally, and otherwise, keeping the doors of justice open has continued to be an issue of importance.

The Supreme Court Bar Association (SCBA) recently passed a resolution urging that hearings through video conferencing should not become the “new normal” to replace open Court hearings.

"Virtual hearings, which are the need of the hour currently, shall be limited to this period of crisis only", the SCBA statement reads.

Judgments of the Supreme Court of India in Naresh Shridhar Mirajkar v. State of Maharashtra of 1966 and Swapnil Tripathi v. Supreme Court of India were cited to emphasize the importance of transparency when it comes to judicial proceedings.

The words of Jeremy Bentham that "there shall be no justice if there is no publicity" has been given emphasis in these judgments, as well as in the resolution.

One thing is clear. Apart from the lack of openness and transparency, the SCBA does not cite a reason as to why virtual hearings are to be forgotten after the pandemic.

The question here to be asked is whether the only way a public/open hearing can be assured is through a conventional court room hearing.

Can’t the ‘darkness of secrecy’ which Bentham laments about, be avoided if the hearing through video conferencing facility is accessible to everyone?

What would be the possibility of a hearing which is partially a spatial court room exercise and partially a virtual one in which may be one lawyer/Judge can take prior permission to attend the hearing through video conferencing and others attend the court physically?

In the light of these questions, it is imperative to examine whether video conferencing is conducive or a barrier to transparency and to the larger cause of access to justice.

It is not denied that the quality of technology has to be upgraded for each of these questions to be answered favorably. But assuming it is done, it is quite arguable that access to justice would achieve far greater meanings and depths if virtual hearings are not limited to this period of crisis only, as the resolution suggests.

Distance

The geographical barrier to access to justice has always been an important issue. The distance to Delhi has always kept the litigant away, as is evident from the relatively lesser number of cases in the Supreme Court from High Courts far away from Delhi. It’s a similar story insofar as the access to the High Courts are concerned, as there is always a higher number of cases in a High Court from a place where there is a Bench in existence than from elsewhere. Video conferencing and E-filing can reduce the geographical barrier to a great extent.

Cost

It’s an accepted fact that the fee charged by a lawyer is directly proportional to the level of the court he practices in. An average Supreme Court lawyer charges higher than the High Court lawyer, who charges higher than an average district court lawyer. The expenses of establishing a practice in the bigger and busier cities where higher courts are situated is often cascaded on to the litigants to whom these lawyers cater. The rise in fee for this particular geographical reason can definitely be minimized once video conferencing becomes a norm.

Multiplicity of voices can be heard

Apart from the greater access it gives to litigants, a virtual court system can increase diversity in the field of litigation, as lawyers can appear in any court of law. Lawyers who specialize in trial lawyering usually leave the case after the trial is over. While sometimes this is purely a choice, sometimes it is due to geographical reasons. Allowing access to appellate courts through virtual hearing can change these dynamics forever, and the result shall only be for the good of the process of law.

Destruction of Geographical Hegemony

“Our Supreme Court is now situated in London and it will be robbing it of much of its prestige and dignity to remove it from the metropolis of the Empire and plant it in the uncongenial soil of Delhi”, mentioned an Indian member speaking against the establishment of a Federal Court in Delhi (the predecessor of the present Supreme Court of India which finally got established in 1937) before the British Legislative Assembly.

This argument was perhaps made to advance the case of the majority of Indian lawyers practicing in the Privy Council in London who did not want their hegemony to be disturbed. Bar Associations of many towns where High Courts are situated have used more direct language while objecting to benches being formed in other towns in the same state. The concern raised was basically the loss of hegemony of the Bar in that town over the institution of the High Court.

How virtual hearing can stay without hampering transparency

The reservations of the SCBA on the basis of how much of transparency is lost in a virtual hearing can be addressed by providing a virtual solution for the issue, rather than abandoning and forgetting virtual hearings forever. That shall arguably throw open the doors of justice much more than ever.

The author is a Delhi-based advocate.