Video Conferencing after COVID-19: The need for case-specific parameters

Recently, the Supreme Court of India, in the context of the Coronavirus pandemic, passed a momentous order on the use of video-conferencing technology, to enable courts to function through the lockdown.

While video-conferencing has been employed in the past by courts, it is hard to escape the fact that this time, things are different.

In the words of one of the judges, the “technology is here to stay”. We could be at the threshold of a sea change in adjudication. Even after the scare of the pandemic is over, we could be looking at courts that employ video technology as a matter of routine rather than as an exception.

Therefore, the video conferencing rules that will be framed by High Courts are likely to last beyond the pandemic, and should be framed in a manner that considers the far-reaching effects of technological intervention on due process.

We can be cautiously optimistic about the use of this technology. We could be looking at a new level of discipline in a system that is otherwise forgiving of lapses and delays. Given the new medium, especially one that offers the possibility of recording hearings, would lawyers now be required to meticulously prepare cases, edit their arguments heavily, write crisp notes of arguments, and be mindful of what is said in court?

This new and uncertain future also holds great promise for diversity in the profession. Lawyers with personal commitments, such as caring for a child or an unwell family member, may get an equal opportunity to continue practice. We may finally be able to imagine a Bar and a Bench that is gender diverse.

These changes could substantially improve the quality of the Bar and advocacy in general. Provided that it is met with judicial enthusiasm, it is hard to find an argument against the use of new technologies to facilitate adjudication of commercial matters.

Any proposal to uniformly adopt video conferencing or other remote forms of adjudication will have to be decentralized. This is implicit in the Supreme Court’s order to “notify and make available the facilities for video conferencing for such litigants who do not have the means or access to video conferencing facilities.”

Perhaps video conferencing centres could be set up in each locality where litigants and lawyers can have their cases heard on a pre-decided schedule. Courts could also permit litigants and lawyers having uninterrupted internet access to attend hearings from their offices or a location of their choice.

This system would work well for certain classes of litigants such as those involved in high-value property litigation, intellectual property suits, arbitration, and company matters, who would generally have no trouble accessing high-speed Internet.

However these litigants cannot be the reference point for the policies that will be framed by courts across the country. A report of the Internet and Mobile Association of India (IAMAI) from 2019 reveals that only 36% of Indians have any access to the Internet to begin with.

Further, we do not have data to assess what fraction of current litigants will be able to effortlessly switch to video conferencing. It is very likely that this class of litigants is rather small.

A study by Vidhi Centre for Legal Policy in 2017 observes that the majority of cases pending before the Delhi High Court were civil writ petitions, which form 39% of the cases filed before the High Court from 2011 to 2015. The next category of cases, in quantum, were criminal miscellaneous applications, including quashing petitions, which constituted 21% of the cases. These petitioners typically have diverse economic backgrounds, and include very vulnerable individual litigants for whom video conferencing may not be an option.

So how then does a court frame a uniform policy on the use of video conferencing?

The risk of denying access to justice is all too obvious. In a country where people struggle to access even the Public Distribution System, it would be delusional to base a model of adjudication on high-speed internet.

Instead, courts could adopt a point-based system based on objective metrics to assess whether matters should be heard through video conferencing. I suggest a system based on the following parameters:

(1) Nature of Litigation: For example, the default for commercial court cases, arbitration cases and company cases could be video conferencing, given the typically greater access to resources among these litigants. In other cases, the petitioner should be given an option between video conferencing or an in-person hearing, subject to the court’s calendar.

(2) Nature of the Litigant: For all individual litigants, courts can require lawyers for the parties in all pending and new cases to file a declaration specifying whether video conferencing is a viable alternative with specific reference to factors such as the technological sophistication of the litigant or the lawyer, the income of the parties, and any specific disabilities preventing use of video-conferencing facilities.

Courts could be flexible in allowing one party to address arguments via video conferencing while allowing the other party to address arguments in person on a scheduled date.

(3) Nature of the hearing: The Supreme Court has observed that video conferencing should be mainly used for arguments at the appellate or the trial stage, and not for recording evidence, unless there is mutual consent.

However video conferencing can be effectively used even at the stage of trial in high-value commercial matters. The Delhi High Court already has Video-Conferencing Guidelines, introduced in 2018, for foreign litigants and witnesses, which could be adapted for use during the course of trial in commercial matters.

Therefore, courts could encourage use of video conferencing at all stages of high-value commercial matters, while being cautious in other kinds of litigation where one of the parties is vulnerable or where there is a large disparity between the parties to the litigation.

Regardless of the details, the COVID-19 pandemic has given us a window of opportunity to think about the use of technology in the justice delivery system.

Given that the rules made for the crisis are likely to outlive it, it is crucial that we think about their long-term effects not only from the point of view of efficiency, but also from the lens of equity and justice.

The author in an intellectual property lawyer practicing in Delhi. She is a member of Hogarth Chambers, London, which is a leading set of barristers in the UK specialising in intellectual property disputes, as a foreign lawyer. Swathi holds an LLM with Honors from Columbia Law School. She also co-founded iProbono India.