The way forward for the justice delivery system
The adaptability of a hybrid format facilitates versatile case management in these uncertain times when social distancing restrictions can be relaxed or tightened in the short term. However, a clear policy is needed to promote transparency and consistency in the process of determining which elements of a case are suitable for remote hearing and which are not.
Courts that have traditionally operated in real rooms have necessarily switched to virtual screens of desktops, laptops and smartphones. But, how smart or truthful such a mouse operation is to do justice has become the moot question today.
Since the year 2020, courts in India and those in many other parts of the world have undergone a radical change in the way and manner of delivering justice. The Covid-19 pandemic has resulted in long periods of lockdown that have almost overturned the man-made ‘rule of law’ to turn society around.
As it stands, courts at all levels of the hierarchy are mired in ever-increasing litigation. The reasons for this elephantine burden on the courts are not far to seek, whether it be bad laws, poor enforcement, or a blatant failure by institutions to control corruption. This essay is an effort to try to look at the bright side of a bleak scenario and to help quell the threat of “Lis pendens” or cases pending before the courts by advocating the refined variety of “hybrid hearings”.
During this period of suspension of life in society, the procedures were largely shortened or limited to those held on remote links. And, as the proceedings begin again after the lockdown, it becomes important to consider the legality as well as the future of these remote proceedings.
While my personal opinion is that justice can only be done to a large extent in trials, hearings and personal arguments, much deliberation is underway to assess whether remote hearings can be made into a long-term initiative. effective and beneficial term?
The higher judiciary has expressed their opinions from the bench, as have we lawyers. But what about from the point of view of the litigants?
Until three years ago, using technology to conduct trials and hear arguments from isolated homes was unthinkable as a normative practice. Final hearings as well as hearings with disputed evidence are inevitably conducted remotely using technology, otherwise there will be no hearings and access to justice would be a mirage.
Courts exist to settle disputes. The default position now in all jurisdictions is that a hearing should be conducted with one, more or all of the participants present remotely.
In practice, many questions arise. Should a particular hearing be adjourned if the case cannot be heard face to face, or should a hearing be held remotely even when several parties to the case are involved?
The continued administration of justice must be the primary factor in deciding this issue. Justice delayed is justice denied even when the delay results from a response to existing mitigating circumstances.
Nonetheless, it is equally important that a court remember that there will be cases where the court cannot be satisfied that a fair assessment of the facts or a resolution of disputes can be achieved through a hearing. from a distance. The appropriateness of the nature of the proceedings must be assessed individually by the court.
A virtual or remote hearing, when appropriate, can reproduce only some and not all of the characteristics of a fully assisted hearing in the courtroom (a postage stamp image of a particular participant in the courtroom). (remote hearing is certainly a poor substitute for the sight of this person fully present in the flesh, in court).
Much can be lost in hearing from a distance. The intervention of technology between the spectator and the watched sterilizes the exchange, removing a critical dimension of human interaction. The whole experience becomes literally and figuratively two-dimensional.
It’s easier to lie to a machine than to someone’s face. The truth doesn’t hit you the same through a screen. The impact of examination-in-chief and cross-examination diminishes. Witnessing vulnerable via a video link can be a difficult task unless a close look at the camera is revealing. It is difficult to pick up subtle emotional signals from a distance. This is important not only for the evaluation of testimonials, but also for proper client care and justice purposes.
However, cases that do not involve hearing or assessing live evidence are clearly more suited to a determination at a distance. Interim Order Hearings, Instruction Hearings, Case Management Hearings, and Pre-Hearing Reviews are natural candidates to continue to be heard at a distance. Simpler examination and substantive hearings such as conviction, performance or health cases where the impairment is not in dispute can also be dealt with effectively without requiring attendance. Likewise, remote hearings are more suited to short-term cases. Remote hearings are easier to organize in the short term. Litigants and witnesses do not need to organize their travel and accommodation, saving time, expense and increasing availability.
The added point is that a few have a suitable private space at home to engage in a private bond without interruption for days on end.
This is where the need for a hybrid system of court hearings comes in. Instead of a presumption of a face-to-face hearing, hearings could be held at a distance where possible and fair to do so: on the basis of “due process of the law” that can be done. from a distance, the parties can then be “divided” into sections where presence would be required or advantageous in the interests of justice.
Some cases may be conducted in person until all witnesses, including litigants, have filed evidence, with others proceeding remotely. Eventually, almost any case would lend itself to some form of hybrid solution to the bizarre situation that continues to prevail around the world. Thus, a hybrid hearing consists in carrying out all or part of the procedure without all the parties being present in person, physically in the courtroom. Submissions, determinations, and even witness questioning, if applicable, can all be made or delivered by other means remotely.
Hybrid hearings introduce a greater element of flexibility, allowing the mode of participation of different parties to be mixed according to the circumstances of the particular case. They offer a compromise position which lies between the rigid choices of the hearing conducted either entirely remotely or fully assisted.
The adaptability of a hybrid format facilitates versatile case management in these uncertain times when social distancing restrictions can be relaxed or tightened in the short term. A case for amending the Code of Civil Procedure for Remote Hearings which is currently made available to the elderly, the infirm and “pardanashin women” becomes stronger once the circumstances cease to be exceptional and become ” new normal ”.
It will be necessary to provide for the presence of the public or virtual observation in order to respect the requirement of transparent justice. A clear policy is needed to promote transparency and consistency in the process of determining which elements of a case can be heard at a distance and which cannot.
It is also imperative that such an amendment enables the agile adoption of new platforms and the development of technological solutions as they arise. Parliament has a heavy responsibility to stay one step ahead in this regard while urging regulators and courts to properly maintain all acceptable standards of data security and protection.
The way forward will not be easy. As the saying goes: “First we make our habits, then our habits make us”. The benefits of convenience and economy outweighed the fair administration of justice in the past and it is important to ensure that they do not do so in the future. Remote audiences can be made into an effective and beneficial long-term initiative.
The justice delivery system must update itself during these difficult times.
(The writer is an eminent jurist and columnist)