Unlike apex courts in many other countries, the Supreme Court of India is a vital part of political, economic and even social life – an undeniable fact whether one approves of it or not.
The fact that over the last week, even though the court has been physically shut, it has heard PILs to help migrant workers, taken up suo motu cases to prevent overcrowding in jails and looked into protection of children in care homes, makes it clear that this has not changed even in the midst of the COVID-19 crisis.
But how is this constitutional court, that plays such a crucial role, supposed to function in the time of the coronavirus, with its lockdowns and requirements for social distancing?
One week since the Supreme Court started to hear cases using video conferencing, here’s how things have been shaping up.
The Court’s ‘Vidyo’ Conferencing System
Even before Prime Minister Narendra Modi announced the 21-day nationwide lockdown, the Supreme Court had started to consider the possibility of conducting hearings remotely, having decided to only hear urgent cases from 16 March onwards.
Following the Delhi Government’s declaration of a lockdown in the NCT of Delhi, the court issued a circular on 23 March explaining how the new system would work, whereby lawyers could present arguments from homes/offices, and the judges could hear the matters at their homes and chambers, using an app called ‘Vidyo’. The first cases using the system were heard on 27 March.
The speed with which this was done was welcomed by lawyers who had urgent cases to file, that couldn’t wait till the pandemic blows over. Advocate-on-Record Neha Nagpal, who used the system, said:
"“It’s been a commendable step by the Supreme Court. Within less than 24 hours, the court had set up a system to list and hear matters. They had the app set up, a portal for online filing, and also created an email ID for mentioning of cases to inform the court of their urgency and get them listed.”"
The new system in the Supreme Court works as follows:
- An Advocate-on-Record (AOR) uses the e-filing system on the court’s website to file the petition and other documents required for the case. After paying the relevant fees, they send an email to the e-filing ID, which will then generate a Diary Number for the case.
- Once the AOR gets a Diary Number, they have to send an application to the mentioning email ID by 2 pm a day before the court is going to be sitting. This has to explain why the case is urgent, and include consent for the case to be heard through video conferencing.
- If the judges agree to hear the case, the matter is listed before the court the next day at a specified time. The lawyers can either download the Vidyo app for phone/personal computer/tablet and get a link for the hearing, or they can come to the Supreme Court premises where they can use the facilities for hearings set up there.
- If the judges don’t agree to list the case, the lawyer can make an oral mentioning to the presiding judge on their residential phone number between 10:30 - 11 am on the day itself.
Has the System Worked Well?
The Quint spoke to several lawyers who had used the video conferencing system over the past week for their cases, to find out how well the system was functioning.
Advocate Alakh Alok Srivastava – whose petition for measures to be taken to help migrant workers across the country saw some controversy over the Centre’s status report to the court – was very satisfied with how things had worked when his matter was heard on 30 and 31 March.
"“It’s working quite good, and I think in future, Supreme Court may adopt this as a normal course of action as it will save judges from overcrowding and many practical problems. There was no technical glitch, everything went smooth, everyone was audible.”" - Alakh Alok Srivastava, advocate
While other lawyers were also appreciative of the court’s efforts and the new system, their experiences weren’t quite as good.
Neha Nagpal, who appeared in three matters before the court, found the audio quality on the Vidyo app was not good, especially when there were a lot of people on the call – an unavoidable fact in most Supreme Court cases, where you often have more than one petitioner or respondent (with multiple lawyers) as well as the judges.
Problems with the Vidyo app were not restricted to audio. Because of connectivity issues with the app, the judges had to resort to WhatsApp video calls with lawyers to conduct hearings, leaving legal reporters, who are allowed to witness proceedings from the facilities at the court, frustrated.
Videocalling app link not working so now #SupremeCourt officials connecting the judges and lawyers via #Whatsapp videocall for hearing.— Aneesha Mathur (@AneeshaMathur) April 3, 2020
Link for viewing by media still not working.
Hearing in several of the cases listed today is over. #techtrouble #Corona https://t.co/6JeO51puQq
Former Additional Solicitor General Maninder Singh pointed out that, as things work right now, the court registrar does not send multiple links to lawyers for one side in a case, which means that if a senior counsel is arguing the case, the AOR briefing them will not get a link, and one will have to travel to the other’s office/residence.
Nagpal, who had asked Singh to be senior counsel in one of her matters, said the court had to provide at least two links per party to the case for this to work going forward. She also noted other glitches in the system apart from the Vidyo app.
"“It’s not very easy to file petitions online because errors keep coming up. At the AOR level, you’re spending a couple of hours to upload the documents for the filing, after which you have to pay the fees. But you go through the process and the transaction fails, so you have to start all over again, otherwise you won’t get a listing.”" - Neha Nagpal, AOR
As a result, it is clear that the ancillary aspects of the Supreme Court’s solution to hearings in the time of COVID-19 will also need to be streamlined.
Should This be Continued Even After the Coronavirus Crisis is Over?
Senior advocate Sanjay Hegde is optimistic that the system could not just continue when things get back to normal, but that this could also be a good thing.
"“This could continue afterwards, particularly in PIL cases which have a lot of people in attendance. Video conferencing could then lead to more focused briefs, submitted well in advance with executive summaries, and the courts formulating the points for consideration ahead of the hearing.”" - Sanjay Hegde, senior advocate
Neha Nagpal agrees, adding that making video conferencing a regular feature of the courts could help ensure the legal system is able to function even if there is a calamity like this again. “There’ll also be a curtailment of wasting of resources – photocopying, paper, storage ability – and quicker access to justice as you don’t need to have people coming to Delhi for these cases,” she says.
However, Hegde thinks there is a fair bit of work to be done to make the system work, not just in the future, but in the current situation as well.
For instance, despite the requirement for social distancing to prevent COVID-19, the judges are sitting in the same room for case hearings.
"“Almost all judges are in the 60+ category, the most vulnerable category. What is the sense of video conferencing if the two judges are sat in the same room? The travelling judge will have a driver, security, attendant travelling with them. The judges should instead be in their own environments.”" - Sanjay Hegde, senior advocate
Another flaw to be addressed in the current system is that when there are connected matters, the court doesn’t hear them together – separate links are generated for each matter, according to senior advocate Maninder Singh, which duplicates the time for hearings and means parties don’t know what happened in the previous hearing.
These kinds of problems, Hegde believes, have cropped up because the system is currently being conceptualised by officials from the registry, rather than the judges themselves. He suggests that judges use video conferencing apps to hold regular meetings amongst themselves to understand the nitty-gritties, and “that is when true solutions and fresh ideas will emerge.”
Nagpal also makes a similar point, saying that if the system has to be scaled up in the future, the judges will need to use it more, whether during court holidays for vacation benches, or special Saturday hearings, to keep the system intact and iron out how exactly to make it work.
The software used for the video conferencing may also need to change. Hegde points out that there are serious privacy concerns with the Vidyo app, which requires access to a number of apps, personal details and even sound control on one’s device, prompting him to delete it as soon as his hearing was over. Given its audio and connectivity issues, the court might need to look into other options, though these would have to be secure, encrypted setups.
Protocols will also need to be specified for future hearings, Hegde asserts, for
- A dress code for video conferencing hearings (judges have not worn robes for hearings, while most lawyers have);
- Handing over of documents during a hearing, which is not possible using the Vidyo app;
- Figuring out who will speak when during multiparty hearings, so people don’t talk over each other; and
- Ending a hearing, as just switching off may mean missing an important instruction, and is disrespectful.
While it won’t become the norm overnight, using video conferencing and e-filings for cases at the Supreme Court certainly looks like it has a future.
“There are no two ways about it, we have to take this forward after the coronavirus crisis is over,” says Neha Nagpal, before concluding:
"“There are lots of learnings here for the judiciary and legal fraternity. Distance hearing , e-filings, e-courts are here to stay.”"
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