Recently, the Bar Council of India decided to hold a 'countrywide consultation' with lawyers and litigants on resumption of regular hearing in all courts'. Before that, the Chairman of BCI, Mr. Manan Kumar Mishra, had written to the CJI, expressing his anguish over the ideas about the continuance of virtual hearings after the lockdown period.
The Online Courts or Remote Courts cannot be established in an adhoc manner. There needs to be a plan for a systematic transformation. This means that, unlike the present unpredicted knee-jerk changes, a seamless transformation should be brought with a well-planned design, in a phased manner. Opposing this transformation with a notion that lawyers will face the same problems, currently being faced by them, is not wise.
The major concerns expressed in the letter and the press release can be categorised into two groups, firstly, the concerns over the functioning of the judiciary and secondly, the concerns over the livelihood/profession of the advocates.
The former concern is based on three large apprehensions. First argument is that the virtual hearings are against the settled principles of transparency and consequently, against the concept of 'true justice'. However, it is conveniently forgotten that it is due to the limitations of the software used by the Supreme Court of India for video conferencing, currently, that the proceedings are not being shared with several people. However, High Courts like Kerala, Maharashtra and Orissa have kept the proceedings open for public. An efficient software application, designed to cater to the needs of the Courts would easily provide the solution for this problem.
The system of virtual adjudication will make the court proceedings more transparent than how it actually is. In a traditional court system, access is limited to those who are present in the court hall at that moment. Contrary to the same, if live and recorded links of proceedings are accessible to the public, the courts will always be available for all. Similar was the idea behind the decision of allowing live-streaming of the Court Proceedings in Swapnil Thripathi v. Supreme Court of India 2018(10) SCC 639. It was affirmed that 'Sunlight is the best disinfectant'.
Models of Online Courts/ Remote Courts are being discussed and deliberated across the world. The idea by Prof. Richard Susskind, IT Adviser to Lord Chief Justice of England and Wales, in his book "Online Courts and the Future of Justice" (Oxford University Press, 2019), is revolutionary. Prof. Susskind envisions the Online Courts with four layers, namely, 'Legal Health Promotion', 'Dispute Avoidance', 'Dispute Containment' and 'Dispute Resolution'. In the first layer, websites of courts offer a range of legal information necessary for general public. In the second layer, lawyers equipped with training, find mechanisms to avoid the disputes in their entirety through virtual or telephonic meetings. In the third layer, lawyers, through virtual communication, try to contain the disputes by mutually agreeable settlements. The fourth layer is a combination of (i) 'Online judging' (The advocates/parties submit their pleadings, evidence and written arguments electronically to the judge and the judgment is delivered by publishing it online after decided by the judge), (ii) 'Virtual hearing' (the current model adopted in several High Courts and Supreme Court in India) and (iii) Physical sitting. India can adopt a similar model with necessary changes that are tailored to suit the requirements accordingly.
Second apprehension that the profession will be hijacked by few elite lawyers and law-firms is also not true. The traditional physical courts are also not accessible to all. Exorbitant lawyers' fees, without any regulation by the State, is a major factor violating the right of people to have 'access to justice' (read more on this aspect here) . The Apex Court in B. Sunitha v. State of Telangana 2018 (1) SCC 638 asked the government to consider bringing a statute to regulate the professional ethics after observing that the commercialization of the profession is amounting to exploitation of the litigants. The system which is already in place is not free from these errors.
If systematically planned Online Courts come into place, the problem can be fought capably. When a competent software application can be accessed from any corner of the globe, the geographical limitations of the lawyers are vanished. For example, a lawyer residing in a rural town of Tamil Nadu can appear and argue before the Apex Court, different High Courts and District Courts throughout the nation. The online courts would also immensely aid physically disabled lawyers. As against the fears of hijack, what will happen with a systematic transformation will be the profession being thrown open to all lawyers across the nation, on switching to Remote Courts. This in turn, reduces the fees of clients who have to bear the travel expenses of the lawyers. A client also gets to see how his matter is decided, with the help of recorded, open proceedings.
The third concern, which is somewhat worrisome, is the 'pick and choose' method used while listing the urgent matters in some particular Courts. However, the rules and regulations, duly framed, after the full transformation can accordingly address it. This is surely not beyond the control of the members of the bar and bench.
To address the concerns expressed over the impact of Online Courts on livelihood of the lawyers, it is compelling to state that if we understand and accept that online courts serve better justice by increasing access to the courts and also by opening the courts for many young lawyers who cannot maintain a life in big cities, we are to accept the second concern of the profession being hijacked, as meritless. Lawyers must accept the changes making it fruitful for them and public. Lawyers must neither hesitate nor resist this systemic transformation, even if it does not promote our interests at the same rate in which it promotes public interest.
Prof. Susskind in Future of Justice, categorically maintains that people do not want lawyers, judges and courts; rather people want delivery of justice. The entire system is built, to serve that purpose, he explains. He goes forward and claims that only for the sake of saving the livelihood of a group of people, the changes in a system, which otherwise is failing should not be resisted. The argument seems correct. Judiciary is built up to cater to the needs of people by rendering justice. Therefore, one cannot argue that for the sake of saving the livelihood of lawyers and the members of judiciary, justice can be compromised.
While moving towards a systematic transformation, lives depending on the existing system change. Ministry of Corporate Affairs shifted entire corporate compliances to virtual world after the Companies Act, 2013. The clerks who were engaged exclusively to file these applications in the offices of the Registrars had to shift to some other jobs. This does not mean that embracing the culture of online courts would pave way for exclusion of digitally illiterate lawyers. It may not be simply feasible to discard the traditional courts altogether as evidenced in Prof Susskind's model. Also, as part of the transition, appropriate training for lawyers and other stakeholders of judiciary to be imparted.
Digital illiteracy cannot be accepted as a reasonable claim to resist Online Courts. According to a study, India's internet penetration rate is at around 50 per cent in 2020. This means, around 69 Crores of individuals use internet in this country. The governments, Bar Councils and Associations have an onus to promote digital literacy and design programs arranging free wi-fi connectivity in the Court Complexes, Chambers and Libraries. With a giant population and piling arrears of the cases, Online Courts hold a better future for India. The sooner we accept it, the better.