INTRODUCTION
As we step into the 21st century, we enter an era where technology ushers the next phase of the digital revolution in India. In the wake of the spread of the novel coronavirus in the country, our honourable Prime Minister Mr Narendra Modi called for a complete lockdown on March 24, 2020. Everything ranging from businesses to education came to a halt, this is where technology came up as a saviour. Ever since then, technology has become an inseparable part of our lives. So is the case with the courts. The courts started virtual hearings for judicial proceedings to impart justice to all. People could appear before the court virtually from any part of the country complying with the social distancing and the lockdown norms released by the government. Technology no more remains foreign to our courts, judges, litigators, and even the common people. As the spread of the virus declined courts switched to hybrid physical hearings from March 15 2021 and issued several directions and SOPs for the court’s functioning. Hybrid hearings give counsel the liberty to either be present physically in the courts or appear virtually. Some consider this the new normal while others opine that hybrid hearings can’t be forever. However, the recent statement given by Supreme Court says that ‘All courts should have a hybrid system for hearing cases’.
WHAT IS A HYBRID HEARING OF A CASE?
As the name ‘Hybrid’ suggests, it is a system formed by incorporating two methods of hearing, i.e, the physical and virtual hearing of cases. It is an alternative to the two other systems. Unlike the two which are rigid, hybrid hearing is quite flexible and convenient for everyone. In this case, the judges attend from the courtroom whereas the counsels and petitioners have the liberty to join the proceedings physically or virtually through video conferencing. The matter will be heard in physical court and the mere presence of one party physically is enough while the other can attend virtually.
EXECUTION OF HYBRID HEARING IN INDIA
The commencement of the hybrid hearing started on 15 March 2021, as announced by the Apex Court. Before this owing to the COVID-19 pandemic situation the hearings were held virtually. Standard Operating Procedures were issued by the supreme court. SOPs say the following things-
- One AOR and one arguing counsel per party will be allowed entry in case the number of parties is higher than the specified number in a matter listed for a hybrid hearing
- To carry paper books or journals of lawyers up to the courtrooms, entry of one registered clerk per party shall be allowed.
- All the counsels appearing for one party can appear either physically or through video or teleconferencing mode within 24 hours or by 1 pm the next day after the publication of the weekly list of the final hearings.
- The AORs are required to submit their preferred mode of appearing in the hearing within 24 hours or by 1 pm the next day after the publication of the weekly list of final hearings or regular matters.
- If the advocate-on-record for a party does not opt for either of the it shall be presumed that counsels seek to appear through video/teleconferencing.
- In case none of the parties opts for appearing physically the hearing shall be held through video/ teleconferencing.
- Special Hearing Passes will be given to the counsels or stakeholders to appear in the courtroom physically.
The complicated nature of the SOPs could be one reason why not many people are in the favor of hybrid hearings.
ARE HYBRID HEARINGS THE NEED OF THE HOUR?
Technology is indeed a boon for us and we must embrace it wholeheartedly. A person sitting in his old thatched hut in a village of Tamil Nadu can connect to The Supreme Court, situated in the capital city of the country, just in fractions of a second, barely spending any amount on travelling. Isn’t it wonderful? Does it not make justice more accessible to the poor and disadvantaged groups of the country? Innumerable cases go unregistered, why? Many don’t have the time to indulge in court proceedings while others lack the fund to travel every month to the courts. It is an expensive affair to file a case in court, the provision of legal aid helps with getting a lawyer free of cost but what about the expenses of travelling to the court for every
hearing and taking a leave from your office? A lot of witnesses deny giving their testimony to the court because they don’t want to get caught up in the process of appearing before the court again and again and missing out on their working days, ending up wasting their time. From villages to metropolitan cities, the internet is available everywhere now. In today’s world where everyone is competing in the rat race of materialistic affairs, the best way to make justice more easily accessible is to make the system flexible and make hybrid hearing the new normal. Not only will it be convenient for the client but also for the lawyers. Lawyers who otherwise could not afford to practice in the Supreme Court due to lack of finances to stay in Delhi or inability to leave old parents or kids alone in their hometown can appear before the apex court. Lawyers won’t have to travel long distances every time for the hearing and the expenses of the travel and stay of the lawyer which would otherwise have been borne by the client will be avoided. Moreover, differently abled lawyers and clients can join the proceedings conveniently. Hybrid Hearing is a win-win for everyone.
IS IT ALTOGETHER A NEW CONCEPT?
The use of technology in court proceedings is not a new concept. In several cases, evidence was recorded by video conferencing as per the directions of The Supreme Court. There were certain cases before the pandemic where video conference hearings received judicial sanction. In the State of Maharashtra v. Dr Praful Desai (2003), the recording of evidence in a criminal trial of a foreign-based witness was permitted by the Supreme Court. In another case Krishna Veni Nagam v. Harish Nagam, the Apex Court permitted video conferencing to ease the burden of litigants. Section 36 of the POCSO Act, 2012 enables recording the statement of a child through video conference. Similarly Section 38 of the Consumer Protection Act, 2019 permits consumer dispute commissions to conduct hearing over video conference. Rule 115 of the Trademarks Rules, 2017 envisages hearing through video conference. All these examples show that virtual hearing has always been a part of judicial proceedings.
WHAT ARE ITS DRAWBACKS?
No system is devoid of flaws. So is the case with a hybrid system of hearing. The unavailability of a good network connection at the time of the hearing could pose a problem to the proceedings of the case and will end up wasting the precious time of our judiciary. Moreover, it is easy to manipulate the witness by the other counsel in the online mode as you never know who else is sitting with the witness in the same room forcing him to manipulate the truth. Besides, cross-questioning always yields better results in the physical presence of the witness. In-person testimony is always preferred over a virtual one. It also suspends the right of people to sit in court proceedings as only a limited number of people are sent the link for video conferencing which affects the transparency of the judiciary. Matters related to family disputes such as divorce matters are best resolved in the physical presence of both parties as face-to-face meet up bring out the sentimental values of both sides.
CONCLUSION
Everything comes with its own set of pros and cons, it is we who decide what weighs more, pros or cons. The Supreme Court has already directed all courts to have a hybrid system of hearing but that was not the case in the beginning. The Apex Court was sceptical about the working of this kind of system. Not less than a year ago it wanted to switch back to physical courts but it seems the perspective of judges is changing. To make it more widely accepted we can make certain changes to the system. If the court allows live streaming of the proceedings that will make it accessible to the general public as well. Depending on the specific circumstances of each case it can be decided whether the matter can be taken up in hybrid mode rather than arbitrarily taking every case in this mode. In case of a witness appearing virtually, they can be asked to move the webcam across the room to make sure no other person than those required for the case is present in the room trying to manipulate the witness. We can work on the technological aspect ensuring every court of the country has screens and all the required items necessary for hybrid hearings. If we make wise use of this mode, it could be a great success, saving time and resources of all.
Author(s) Name: Aayushi Baliyan (RMLNLU, Lucknow)
