A moniker most precious to our hearts, is the coveted 'Basic Structure', which was coined during the hearings of India's most celebrated decisions of Kesavananda Bharti; it was done so, not on 13 laptops but on a single bench with 13 seats in a single courtroom, and arguments not advanced from Ipads but by doyens of the profession over 2 podiums, spread few feet apart and from the bench, thundering down the law by the wit of their minds and the sweat of their brow.
If only we could turn back time to get a whiff of a chance to catch a glimpse of the heated exchanges and ingenuous remarks by the greats, Nani Palkhivala, H.M. Seervai and Niren De, during these proceedings.
Much has been debated over the resumption of the physical courtroom hearings, and the Virtual court (VC) hearings being hailed as a panacea, but without citing out the pros and cons of either, I instead embark upon enunciating what we refer to colloquially as the 'Theatre Of Law'.
My inclination towards courtroom hearings is embedded existentially and deep seated from my early days as a law student, thanks to the notable internships with the legal stalwarts like Mr. KK Venugopal, late Mr. Goolam E Vahanvati, Mr. Harish Salve, Dr. Abhisek Manu Singhvi, and Mr. Gopal Subramanium; and it is this early visualization of a law career as an arguing counsel, that made me discern the importance of oral arguments, from sitting in the visitor's gallery all day listening and grasping the legal acumen falling from the interactions between the bench and the bar. The brevity, the alacrity, the clarity and unflinching equanimity exhibited by the legal lions of the profession while arguing a proposition of law inside a courtroom, has no substitute.
An early instance that comes to mind is one during my very first year of practice, while waiting for my case to be called out. During the course of a litigious matter, both sides tussled with multiple seniors on either sides. An exasperated J. Dipak Mishra remarked, "All of you are acting like children", bringing miffed looks on some of the seniors at the comparison drawn, which further prompted J. Mishra to ask – "Do you all not like it ?". Senior advocate Shyam Divan, appearing for one of the respondents, tranquilly responded – "We don't have a problem My Lords, but Children may not like the comparison", bringing smiles to all the faces in the Court.
An oft quoted anecdotal instance shared amongst the legal community is when J. Kuldip Singh (one of the distinguished few to have donned the Apex court robes straight from the bar) got quite incensed during an ongoing proceeding, and rhetorically questioned the then Attorney General Mr. Ramaswamy, "You think we are fools?", to which Mr. Ramaswamy calmly responded – "My lords have put me in a very difficult situation. If I agree, I am in contempt; if I disagree, I commit perjury.", and the entire courtroom burst into laughter.
There are innumerable such instances that are the best examples to show any young lawyer in his early years of practice, any student or even a client split between the decision to help his child choose a career in law, as to how an arguing counsel can diffuse the tension in a situation with his presence of mind, his quick thinking on his feet, his legal acumen and the grasp on his diction.
This is what we call the courtroom experience – a 'basic' experience hidden in the courtroom 'structure' – the 'basic structure'.
Dispensing away such indispensable courtroom hearings is not an option but an exception given the current extraordinary scenario. As Justice DY Chandrachud (the proponent of the new e-filing module at the Supreme Court) observed, "I want to dissuade people from the idea that virtual court hearings are some sort of a panacea. They will not be able to replace physical court hearings. We had to resort to virtual court hearings because Covid-19 descended without warning and we had no other choice. We had to protect those who come to court – lawyers, litigants, media personnel, para-legal, interns."
Many of the landmark judgments are replete with several instances where the Courts have acknowledged the invaluable assistance rendered by the counsels through their oral arguments advanced, tirelessly briefed by the junior counsels in packed courtrooms with avid listeners and learners.
To quote a recent instance of admiration offered by the Supreme Court in its recent landmark judgment (Ayodhya verdict) – "While acknowledging the scholarly contributions made by the arguing counsel both in their oral arguments and written submissions, we must equally notice the sincerity and dedication of the learned assisting counsel and among them the industry of the junior counsel. …The erudition of (the arguing) counsel, their industry, vision and above all, dispassionate objectivity in discharging their role as officers of the court must be commended."
Their erudition enables the younger lawyers to absorb & reflect and thereafter hopefully repeat. Often told while starting the profession – "don't sit in the bar room, go and attend the court and see how the seniors argue". Nobody should be deprived of that opportunity to be actively groomed in courts under any circumstances.
That having been said, my attempt is restricted only to countering the widespread assertions prevailing qua VC as a possible permanent replacement. My views should not be mistaken for trivializing the importance and necessity of VC hearings in these unprecedented times but instead it's directed at the prevalent feeling that I sense, in trying to paint every proceeding with the same brush, in an over-jubilation of a case disposal drive. VC hearings are not a Panacea but an interregnum necessity. Such a hearing during COVID-19 is not a choice but a compulsion – which is the exact definition of an 'exception'.
The benefits of VC hearings are apparent to every naked eye and in fact it is appreciable how all stakeholders have come together to initiate VC hearings as an alternative. One especially applauds the cooperative involvement of both the Bench and the Bar to ameliorate the plight of fresh urgent matters.
Technology is meant to assist and not replace the long-lasting tradition of honing young minds inside the courtrooms. To my understanding, as I narrated above, the idea of a full VC setup robs both the speaker (the arguing lawyer) and the listener (young lawyers/students/clients) of the benefits underlying this august tradition.
In re a lawyer – an arguing counsel's field of practice is the courtroom, where their legal skills are put to test and the result thereof is publicized through the word of mouth by other lawyers and/or clients sitting in the courtroom or having heard tales making rounds of the corridors qua a great argument being made in the course of an important hearing.
On the other end of the spectrum you have the listeners in the form of junior counsels, law students, interns, et al. – here the hammer stroke has fallen the hardest; losing precious time and opportunities to get chiselled in the fiery pits of the courtroom. Learning the 3 Ts - tone, tenor and timing, while hearing a senior/mentor arguing in a court gets lost entirely in a VC setup.
Ld. Senior advocate, Mr. Harish Salve, a lawyer who himself has the legal prowess to marshal the verbiage support at his command at the drop of a hat, in one of his interviews on his early days, spoke about the courtcraft and skills of late Mr. Nani Palkhiwala and how he learnt and picked up on the latter's inimitable art of tackling the resistance offered by the judges to a proposition beseeched by him through his legal acumen and equanimity in the court of law.
Late Mr. Ram Jethmalani's cross examination antiques were certainly a treat for every spectator, lawyer & student present in the courtroom; His ability to rattle a witness in a manner to get an admission or an omission, was incomparable and could get anyone's adrenaline flowing.
I say this with respect – "There is 1 great lawyer born but the other 99 are made great by being mentored by that 1."
The expressionless banters and repartees are a literal rendition of the proverbial deadpan we come across only in witty yet scripted shows and written pieces. Such is the wit unveiled by them, that one stands in awe of their presence of mind to respond calmly to any situation that presents itself during the course of a hearing.
Let's remind ourselves that it was the oratorical skills of 2 lawyers grilled in the fiery pits of public speaking which helped them don the chairs of India's 1st Prime Minister and Father of the Nation respectively.
I yearn for that familiar feeling of the 5 second pin drop silence in the courtroom before everyone rises for the Judges, sharp at 10:30 am - the deep breath before the plunge. The calm before the storm of lawyers barraging on with their arguments. What transpires thereafter is nothing short of a visual spectacle, that every arguing lawyer longs to see and emulate.
The hushed cheering on a well-argued submission, the deafening silence at the judge's exposition, the twitching of the eyes, the forced wrinkles arising from the dissuading or assuaging expressions of the lawyers while arguing; the tugging down on the seniors' gown by the animated juniors enough to hint to stop or change course. The violent showcasing of a humongous case compilation only for the purpose of browbeating the opposition down, without actually using even a single case from the same.
That slight nudge by the lawyer next in line to the lawyer who sticks to the podium despite the court master having called of the next matter.
The anecdotal preface to an argument, the in-between interjections which totally change the tide of a hearing, that fervent hand gesturing by the petitioner while the respondent replies.
Some might call these tricks of the trade; We call this the 'Theatre of Law'.
That walk down the middle aisle towards the door, with a glow on the face after a successful hearing – that feeling is ineffable; Arguing valiantly in the grand halls is nothing short of romanticizing with the law, a spectacle of epic proportions without any bounds, naked in its simplicity yet a complicated maze to navigate.
And the assistance in this navigation coupled with the honing of the raw talent, happens by guiding and mentoring inside a courtroom and not through a 13 inch screen.
I don't intend to go down the path of citing in details the benefits and shortcomings of either setups., but now Compare all that I said above to – the unceremonious muting, the frequent disconnections, the ceiling views, the 'log(in)'-jams, the construction noise in the background and more.
Compare Late Mr. Jethmalani's vivid cross examination of the unsettled witness, who (in a VC setup) can simply disconnect, get back his composure, possibly even get the answer fed to him and then log back, only to then call it an inadvertent connection error.
While no one appreciates being smirked at, but Compare, on one hand the smirks and the wry smiles just to try and tip the balance of the argument in our favor somehow, as opposed on the other hand, where we are looking at each other's foreheads just to try and tip the balance of the laptops in our favor.
The Indian adversarial judicial system draws its enthusiasm from the demonstrative pleas and pleadings in a courtroom, which gets entirely desensitized and sterilized vide a VC setup. At the cost of repetition, one may not misunderstand this piece as one trivializing the importance of a VC, especially since exigent circumstances call for exigent measures, but instead to acknowledge that it is not a cure-all solution.
In a pure virtual setup, neither is there any interaction between the judges inter-se akin to that in a courtroom nor can the sublime combination of a good senior counsel-junior counsel team represent the client seamlessly. The crowded courtroom with all stakeholders, including media personnel, listening intently to what transpires therein, is something which is dearly missed.
An important aspect to be considered is the enlightenment offered in a courtroom where both sides' lawyers may not know the answer to a question put forth by the bench, which is then posed to other lawyers sitting in the courtroom. The sources of learning are, I thus say, endless.
I recently came across a Court Order asking for pre-recorded video clips to be given as a substitute for oral hearings. I appreciate that the same has been rendered with the noblest of intentions, given the immediate need of the hour and is laudable; but my concern flows from the fact that by making it permissible today we move one step closer to making it an acceptable practice tomorrow. To reiterate, an exception today should not become a rule/norm tomorrow.
Another charm of courtroom decorum comes with the discipline of coming in the uniform prescribed; the charm and charisma of the lawyers in robes is unparalleled. Appearance is considered to be vital, and here we are in a setup that unfortunately had to witness the audacity to a lawyer to appear in a vest before the Hon'ble Bench.
There is always a silver lining in the dark clouds and the pandemic has certainly presented to us an alternative in the form of a VC Setup, which is actually much better equipped to counter the worries regarding social distancing norms and other recurring issues, inter alia, relating to frequent adjournments, geographical constraints, increasing efficiency in the administrative workload, etc. Its use in exigent circumstances, as is being done now, can only act as an aid to support and not supplant the existing court set up.
I await the resumption of physical court hearings with bated breath. I am no hermit and am left pondering as to the fate of the pandemic and the return to the 'new normalcy' but when it comes to the reopening of courts, the question should be "when" and not "if".
We are wiser in hindsight today undoubtedly and we stand together (both virtually and physically as the case maybe !) in this fight against the pandemic which shall hopefully eventually pass but I end this piece with the thought I commenced with – Courtroom Hearings are, in essence, the "basic structure" of the our judicial system.
Views are personal only
(The author is the founder partner of DRSB Law Chambers, practicing at the Supreme Court of India and Delhi High Court.)