Trial in the time of Coronavirus Lockdown and beyond

Even as humanity is grappling with the Coronavirus crisis, and victory is nowhere near sight, prophets and professors have already started making predictions about what the world will be after the pandemic subsides.

In a widely read piece, Yuval Noah Harari worries that “decisions that in normal times could take years of deliberation are passed in a matter of hours”, including those to use “immature and even dangerous technologies…[that]..are pressed into service, because the risks of doing nothing are bigger”. He fears that these “short-term emergency measures will become a fixture of life”.

While Harari’s fears were in the context of widening surveillance infrastructure and watering down of rights to cater to emergency needs, there may be some quick decisions that we took that can be a welcome permanent fixture.

For instance, the decision to hold appellate court proceedings through video conferencing (VC) is one of those welcome changes. The Supreme Court as well as many high courts (Kerala, Delhi, Calcutta, Gujarat & Madhya Pradesh to name a few) are resorting to this device to hear urgent cases and pass orders.

Despite the fact that the infrastructure for video conferencing was in place for some time now, it took an emergency to activate it and put it to use.

Proceedings through video conferencing is not altogether a novel practice in India. The criminal courts In India have been resorting to this for quite some time now, to both hold trials and for managing remand productions. It appears that, at least in principle, it can be used for any kind of proceedings.

The guidelines published by the Delhi High Court say that “video conferencing facilities can be used in all matters including remands, bail applications and in civil and criminal trials where a witness is located intra-state, inter-state, or overseas”.

In a variety of circumstances, the Supreme Court has often directed lower courts and tribunals to hold its proceedings through video conferencing. This includes instances such as directions to the NGT to hold proceedings through VC so that the same bench that heard a matter could hear an application for review; an order to examine witnesses through VC where there are threats to his/her safety; or the general conduct of a trial through VC on account of the sensitive nature of that case.

Recently, the Supreme Court advocated for the widespread use of video conferencing to conduct criminal trials – with a view to making them move at a faster pace and ensuring witness protection. Much earlier, the limited use of VC in matrimonial proceedings had received the approval of the court.

All of this points out that the use of video conferencing to conduct proceedings was gaining traction in India, with active support, if not a mandate from the Supreme Court. The constitutional courts resorting to this was a logical extension of use of this technology to conduct their proceedings.

As much as the sudden decision is a welcome one, I have to join in with Harari’s fears that, if institutionalized in its current form, it has the potential to water down an important element that underpins the conduct of a fair judicial proceeding – one of openness.

As of now, it appears that only the concerned lawyers involved in the proceeding and the judges have access to the stream. The proceedings are hence “closed” from the public eye and does not satisfy the need for an “open court”.

The “open court” principle, the Canadian Supreme Court notes, “has long been recognized as a cornerstone of the common law”, and that it was a “hallmark of a democratic society”, “inexplicably tied to the freedom of expression”.

The Supreme Court of the United States held some time back that the public’s right of access to criminal trials was a first amendment guarantee and recognized “open court” to be an aspect of fairness of proceedings too.

Even as there are debates surrounding the effect of broadcasting of trials on the fairness of proceedings (especially on compulsions on the witness and the tendency to sensationalize trials), it needs to be remembered that most of these criticisms are in the context of trials that which involve examination of witnesses and a fact discovery process. There are not many arguments in favour of why proceedings before appellate courts should be shielded from the public eye.

A number of courts from around the world [including the ICJ, appellate courts from the United Kingdom (including the Supreme Court), some of the appellate courts in the United States & Australia and the Constitutional Court of South Africa] have started live streaming the proceedings or making a video recording of the proceedings available to the public.

The US Supreme Court has remained shy from live telecasting the proceedings. However, there is increasing pressure being mounted on the Court to start making a live telecast. Last month, the Chairperson of the House Appropriations Sub-Committee that oversees the Court’s budget had written to the Chief Justice, requesting live-streaming of Court proceedings. In any case, the US Supreme Court has been publishing audio recordings of arguments since 2010.

Since 2018, the Supreme Court of India has allowed journalists (including non-accredited ones) to carry their mobile phones to court rooms. This, along with the work from some enterprising lawyers, has allowed us to have live tweets of proceedings.

In 2018, the Supreme Court of India “allowed” live streaming of proceedings in "important cases". However, we are yet to see this implemented in practice. Requests for listing that matter for further directions seems to have fallen on deaf ears. A number of petitions have been filed requesting the court to take this up on an urgent basis, however, the Court is yet to implement its own directions and has even refused to direct the administration to take steps for implementing the 2018 order.

By contrast, the High Courts have appeared to take more concrete steps in that direction, with the Kolkata High court ordering the live streaming of final hearings in a case.

In a more progressive move, the Kerala High Court has decided that the urgent hearings that it conducts during the Coronavirus lockdown will be live streamed using Zoom links, which can be accessed by any member of the public – a move which upholds the principle of “open court”.

The quick decision to conduct proceedings through video conferencing is a laudable one. It enables the courts to function and parties to move the court in case of urgency. There are arguments why the practice must continue for times to come- it will help decongestion the courts, make it accessible outside court hours and it has the potential to expand the reach of the court to places outside Delhi.

However, in its current form, where only the parties have access to a proceeding, it violates a core principle that relates to fairness of the proceedings – one of openness of courts. With emerging signs that Courts are considering proceedings through video conferencing to be a long term fixture, and Justice Chandrachud advocating for it, it is important to ensure that the proceedings are “open”.

Considering how the Supreme Court has been slow to implement its 2018 order on live streaming, one can entertain legitimate fears that it may choose to retain the facility of proceedings through VC, without making it open. This will make it an emergency measure that becomes a fixture for life – one of the nature that Harari feared. However, I hope that my fears prove wrong.

The author teaches law at the Daksha Fellowship, specialising in Human Rights Law.