Audible, Visible, My Lord?

Dr Thushara James

21 Jan 2022 3:58 AM GMT

  • Audible, Visible, My Lord?

    'Unprecedented times call for unprecedented interventions', remarked a learned Judge of the Kerala High Court while exercising the extraordinary jurisdiction to stall recovery proceedings initiated by banks against a mortagor. What would have been otherwise dismissed, as one of material default and breach of contract, was looked upon with compassion, owing to the continuing...

    'Unprecedented times call for unprecedented interventions', remarked a learned Judge of the Kerala High Court while exercising the extraordinary jurisdiction to stall recovery proceedings initiated by banks against a mortagor. What would have been otherwise dismissed, as one of material default and breach of contract, was looked upon with compassion, owing to the continuing concerns with Covid 19. Yet again, the 'period of limitation' is extended, factual hurdles can upset well settled legal propositions and the 'man' , not the 'man made law', is supreme.

    As the Great Indian Judiciary braces for another season of virtual courts, it is imperative that we accept the change, gracefully rather than grimly. It is time to stop criticising and start conforming to the changes in court proceedings. The introduction of virtual courts and e-filing are not to be looked upon as one for selfish gains of the so called elitist in the Bar and Bench, but as unavoidable progressive changes in the manner of conduct of courts. This is also in accordance with the policy of digitalisation of the Government and the realities of technological advancements . Covid may have accelerated the pace of e-courts and e- documentation but it was in the pipeline, anyway. And not that we didn't have time to adapt and adopt. "Stay home, stay safe" motto is set to celeberate its second anniversary in March .

    While the world moved on in virtual spaces, were we, the legal fraternity, too preoccupied, disputing over its dispensability?

    Lone voices of dissent, are still heard against virtual courts, even when we enthusiastically explore the possibilities of all social networking platforms. We express our intolerance to interruptions with connectivity from court premises, while we may have the same issues from the locations where we choose to connect from. We project the difficulties faced by an older generation of lawyers who with their experience illuminate the Bar, blissfully ignoring their innate ability to adjust and assimilate. We grieve over the apprehended unemployment of advocate clerks, even before attempting to digitalise our data. We waste no time in forwarding videos of mishaps, while attending online courts, but will refrain from publicizing the number of cases disposed through well conducted courts. While our friends in other professions were busy, improving their network connectivity and focusing on adaptability, were we cynical, even hypocritical ?

    Whether we like it or not, the digital revolution is here to stay . It is the 'New World Order', of artificial intelligence, robotics and meta verse. Introduction of virtual courts and online updations, though under compelling circumstances of the pandemic, elevated the concept of rendering justice more meaningfully, by giving litigants, access to court proceedings. It ensures transparency and accountability of lawyers to their cases and causes. Virtual courts have given immense opportunities to young lawyers, and also facilitated the appearance in multiple courts, including the Supreme Court, from the comfort of domestic spaces. Probably, the largest beneficiaries of online courts are female lawyers. It allowed them to multitask in innumerable ways and balance the ever competing demands of home and workplace.

    Now that we go online again, I think we must remind ourselves of the etiquette we must follow for conduct of courts. The 'courtiquette', must be strictly adhered to, for the very respectability and sustainability of online justice system. While it is acceptable to log in from any location, it would be appropriate to use a virtual background, if the location is too informal, for the formal court proceeding. Reminding ourselves that it is our conduct that defines the dignity of the profession, it is important to ensure that court proceedings are not to be interfered with, by background voices or visuals. The first season of online courts had it all online - from public displays of affection, to whistles of pressure cookers, infant cries, client meetings, and even couple fights. They were all viral videos, some entertaining, but mostly embarrassing. The second season must focus on the formality that court processes must hold, and must conform to a set of norms prescribed for the conduct of online courts. Relevant in this context is the dress code of the participants, the virtual background on display, as well as the manner in which chat rooms can be used. Uninterrupted connectivity is an absolute must, and the burden of ensuring the same, ought to be on the one who uses it.

    Since online courts can also raise privacy concerns, rules must be framed on an urgent basis, addressing the issue of recording of proceedings and it's circulation. The Rules for Video Conferencing, which is presently in force, in various courts, require immediate amendment and updation. In my humble view, the rules for video conferencing are not sufficient for conduct of e-courts. Online courts may fall under the general description of video conferencing, but it is exclusive and may require special rules. The 'administrator' of every court must be able to restrict access and take full control of the proceedings, including admitting or expelling a participant, for violation of the rules. There must also be a grievance redressal mechanism and a forum that will oversee the working of online courts in each state. These Rules must also be in sync with the rules on e-filing and downloading of data, restrictions on use of data and data theft, identity trail, uploading of information, proceedings, judgements and access to online portals. Reliability and requirement of Digital signature is another area that needs attention.

    While we move on to a techno- legal phase in judicial proceedings, it is important to have a fruitful discussion with all the stakeholders, before finalizing these Rules- Judges, lawyers, law officers of the Centre and state, and technical experts. The framers of the Rules must be mindful of the many lawyers that left the profession, because they could not afford the initial costs, in setting up a techno-friendly legal office. The role of advocate clerks, who play a pivotal role in a lawyer's career, will undergo a major change with e-filing. The transition from real to virtual, must follow an orderly and phased pattern, so that they won't be 'phased out'. Depending upon the area and category of cases most commonly filed, e-filing by private parties can be initially insisted upon for particular subject/s and extended to all, within a six to twelve months period. Filing by Governments, PSUs, Universities and like establishments, can and must switch over to e-filing for all matters without any delay.

    Not long ago were we fined for checking our phones inside courtrooms, as we idled waiting for the case. Now, we are expected to access them diligently, with decisive communications exchanged through social networking platforms.

    The legal fraternity is, more often than not, criticised for lagging behind in technological advancements . If we do not embrace the change, we may be swept off with the tide. Judiciary, the last resort of a hapless litigant must adapt itself to the changing times. The time when lawyers are paid in crypto, for arguing disputes on trade of NFTs, with robotic judges deciding them, is not far.

    E Courts are here to stay. Unprecedented times call for unprecedented attitudinal changes. Both from the Bench and Bar.

    Am I audible, visible, my Lords?

    Views are possible.

    Author is an Advocate and Senior Govt. Pleader At Kerala High Court

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