Pravin Anand, from Anand and Anand, argues that despite the flaws, the advantages of virtual courts mean they should continue even after the pandemic has abated
The virtual court system is the next step in the evolution of the justice system, after e-courts. With e-courts, the focus was on using less paper and having a far greater reliance on electronic files. However, the judge, opposing attorneys, and even the clients (if present) would be physically present in the same room.
Due to the pandemic, a vast number of challenges are being experienced. The lockdown in the cities closed down the courts as well, but it was soon realized that the courts must continue working even in this environment and the virtual court system evolved in response.
The judges, the two opposing attorneys and their support staff, as well as the clients, all get connected online for the case. In this way, court cases continue to be filed, heard and orders passed, at least with effect from the last week of March 2020.
Post-lockdown, one of the first intellectual property cases that came up before the virtual courts, perhaps anywhere in India, was before the Delhi High Court on 15 April. Since that day, until the end of July 2020, this court alone has, in a span of three-and-a-half months, seen more than 130 new filings that are lawsuits, writs and appeals.
Virtual courts possess some major advantages compared to regular physical courts, even though there are still many flaws and challenges that characterize the system.
Increased access to justice
One of the greatest advantages of virtual courts, say before the Delhi High Court, is the fact that parties can join from anywhere in the world. You can have attorneys, clients or even witnesses in other cities join in the hearing, which has increased access to justice.
Judges can hear matters even beyond court hours, which are normally from 10.30am to 4.30pm. Going beyond 4.30pm is now possible because the court files do not have to be returned to the registry before the court closes, and participants sitting at their homes do not mind investing additional time in the matter in order to complete arguments. In this way, a larger number of matters is likely to get completed.
Another advantage is that attorneys who are pure solicitors, or who only have a chamber practice, have also started appearing before courts, as there is a far greater comfort level in taking a hearing from their home or office as opposed to attending in the formal environment of a courtroom. Due to this, clients can more often go to the real expert in the field and courts can also have access to the expert who has the best domain knowledge.
Another interesting feature is that attorneys participating in virtual courts are using a wide range of devices, from desktops to laptops, tablets and even smartphones.
There is less interference from the opposite side during arguments as a consequence of the technical requirements, since it is essential to manage a smooth hearing, both on account of problems of sound quality and to ensure uninterrupted connectivity for all the attending parties. This makes judges force a certain discipline where parties speak only at their turn, which we all know from experience is often not the case in physical hearings.
From a stress perspective, the proceedings are less formal and the environment is a lighter one, sometimes with exchanges of pleasantries and humour. This is all very good, except that the proceedings should not get too casual, or in any way compromise the dignity of the court.
The filing of cases is currently easier because many of the stricter requirements, such as the filing of court fees or notarization and apostille affixation with affidavits, have been suspended until the end of the lockdown. This can result in much time saved and far quicker filing, although parties will have to prepare in advance to file the formal notarized/apostilled documents and the court fee within a few days of the reopening of courts.
In a very short period of time, from super-urgent matters for intellectual property, the categories of cases that are being filed cover almost the whole range of matters of normal urgency such as final category, collection of evidence, mediation and even pre-litigation mediation. It is surprising that courts and tribunals, from the Indian Patent Office to the Intellectual Property Appellate Board, district courts, high courts, the Supreme Court, and even the consumer forum, have all adopted the virtual court system with comfort and ease, and are proceeding with their work in a fairly successful way.
In some recent matters under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, a Delhi High Court bench has required the counsel to file their arguments on a 15-minute video clip. Doing so brings all sorts of benefits, including precise uninterrupted arguments, which the judge can hear and rehear while pondering over the matter.
In a long and complicated argument, the arguing counsel does not have the physical assistance of files including pleadings, documents and the case law to show to the court. However, some of the courts are permitting screen sharing, while others are not. If some sharing is allowed, then a junior counsel can assist the arguing counsel by putting up the document or case law concerned to ensure a smooth continuity in the arguments.
One issue that has recently come up is the difficulty in uploading documents with large file sizes, as the Delhi High Court Registry seems to have an email capacity of 50MB, whereas if DVDs are physically taken to the high court filing counter, their capacity can be as high as 300MB. Once again, this indicates that we need to file less documents in the current system.
Before any matter comes up before the virtual courts, it is essential, at least in the Delhi High Court, to give advance notice to the opposite party. Even in unusual cases, where an ex parte order is necessary, an exemption may be sought from the court, but normally with advance notice.
Anton Piller orders (i.e., a court order that permits the search of a defendant’s premises without prior notice) are going to be difficult to obtain. The other problem, of course, is the reluctance of some courts to grant such orders, either due to safety concerns on account of the pandemic, or the uncertainty in deciding whether the reluctance of a party to allow a local commissioner to search and seize goods was due to obstruction of justice, or simply a concern for safety. Because of this uncertainty, courts, at least the Delhi High Court, for the time being has not been granting Anton Piller orders.
The other problem is that of waiting. When virtual courts started, you did not know when your matter would come up and you kept trying to log on from time to time on WebEx, only to read a message that the meeting had not yet started. To overcome this, some courts started permitting a number of cases entry into the courtroom using a common link. You could then watch the matter before your own, and would be far more certain as to when your matter was to be called out.
However, as a result, courts that were permitting this experienced bandwidth problems and, instead of permitting greater access, they then permitted fewer number of cases, say three at a time, and the others would have to wait. The High Court Original Side Rules introduced the concept of time slots and courts started giving specific time slots for matters. The fact that arguments would not finish in a previous matter meant that the time slots were not being adhered to. This warrants a stricter approach on time limits.
Another issue that has come up is when counsel have accidently not turned off their microphone, and the video and conversation can be seen and heard loudly in the full courtroom, creating some embarrassing moments. Obviously, the habit of turning off mic and video is critical in a virtual court system. A benefit of virtual courts has been the time saved travelling through congested roads of a city. It has also saved paper because of the reliance on electronic filing.
Finally, this process has improved the digital skills of a large number of practitioners, who not only learnt how to use Zoom, WebEx and Microsoft Teams, but by spending so much time on their computers, they have become more computer savvy.
Some problems yet to be sorted out include the filing of documents in a sealed cover. There are some suggestions on how this could be done, such as the filing of encrypted documents, and by handing over the password to the judge, or having the equivalent of a vault on the e-file.
The road ahead
In conclusion, it is quite clear that when we return to our normal lives, virtual courts will remain, as they have opened up new possibilities for our delivery of justice and the future, therefore, looks like a blend of physical and virtual courts. In any event, access at anytime from anywhere by anyone is to be encouraged, particularly when it is the safer option.
Pravin Anand is a Managing Partner at Anand and Anand.