Nearly two weeks ago, the hearing on a bail plea was to be taken up by the Hon’ble Supreme Court of India.
The judges were ready, as was the lawyer, all prepared to present his argument.
But the hearing couldn’t take place.
The person for whom the lawyer was arguing will have to wait for the next hearing scheduled after two weeks for no fault on his part, presuming that it was a case fit for bail.
Reason? The connection kept dropping.
Confused?
With the lockdown in force and social distancing being the norm, hearings in the apex court of the country have migrated to video conferencing (VC) over the last few weeks. And it has not been going well.
There have been several instances over this period when the vagaries of technology came in the way of delivery of justice, as has been referenced above. ET Prime talked to several judges, lawyers, and officials of the court who confirmed a litany of problems with the temporary VC system that has been put in place to keep the wheels of justice moving.
These issues have affected a number of hearings over the lockdown period and are ultimately having a negative impact on the dispensation of justice — a critical pillar of democracy. The problems include:
- Video links breaking off due to bandwidth issues (as happened in the case cited above)
- Bandwidth issues resulting in unclear and patchy audio
- Links to hearings not being shared on time with lawyers
- Registrars, who have control of the proceedings, accidentally muting lawyers
- Lack of know-how within the legal community, and lawyers in particular, on using VC, resulting in suboptimal use and confusion
- Lawyers not being able to log in
- Discussions between judges in division benches, which should happen with their microphone on mute, being broadcast
- The VC software being used — Vidyo — is not designed or optimised for use in judicial processes.
- Digitised court records not accessible easily through the VC software
- A drastically reduced number of hearings, with only urgent matters being taken up, causing hardship to other litigants.
In view of the lockdown, the apex court has restricted hearings to personal-liberty cases and litigation related to the coronavirus and the resultant lockdown.
The lockdown-affected productivity of the courts has been further reduced because of these issues. Over the last several weeks, lawyers say, the number of admission hearings per week has been under 50, a far cry from the usual 1,500. There has been no final hearing either. That’s because only two virtual courtrooms are in session, as compared to the seventeen that are usually in session in the Supreme Court.
This far into the lockdown, they add, the temporary system should have been in a position to increase the current number of two virtual courtrooms and take up more cases. That hasn’t happened yet and there is no visibility over when it will.
Nearly everyone ET Prime spoke to agrees that the unique characteristics of the physical courtroom and its atmosphere are hard to recreate online, but it is the suboptimal nature of its replacement and the teething troubles that haven’t yet been tackled are what they find worrisome. It is not just the appellate courts that are having trouble with the system. The trial courts are on an even stickier wicket.
It is fair to say that the coronavirus pandemic has adversely affected India’s court system.
Search for a protocol
Underpinning these issues is the lack of any sort of protocol and practice in ensuring that the justice system of the land can smoothly work in case of any disruption. Simply put, there appears to be no plan B.
Former Supreme Court judge Madan B Lokur, who was also heading the e-committee of the court, says that while “disaster-management plans were prepared and implemented for preservation of and access to data. No plans or protocols were prepared for a contingency such as the present. Since no plans or protocols were prepared, no drill can be carried out.”
This, in turn has resulted in the entire justice system trying to learn on the go, and the domino effect of triggering accusations and counter-allegations between the advocates and the Supreme Court registrar’s office, which is tasked with controlling the flow of the court.
The registrar’s office schedules hearings for the two virtual courtrooms, and over a WhatsApp group created for the purpose, sends the VC links to the respective advocates just before the scheduled time of the hearing. That may not be the ideal process for the smooth functioning of the highest court of the land.
Lawyers, on their part, say the registrar’s office is clearly not designed to co-ordinate the court proceedings through technology and that the lack of preparedness shows. “The process has gone out of their hands,” says a lawyer who regularly appears before the Supreme Court and didn’t want to reveal his identity.
An official with the registrar’s office says on the condition of anonymity that many of the issues stem from the newness of the system itself and that the office of the registrar is getting unnecessary flak. “Advocates accuse us for lack of technical know-how, which leads to the case hearings getting pushed. But they are no good either. We all are experiencing this for the first time,” he points out.
His contention is that they are improving. “We are doing the best that we can. In a single courtroom, there are about 8-10 hearings, with about 10-15 minutes per case. In that, we have to get the judges’ links working properly, (and) the advocates’ links working properly. Not only this, we have to even be vigilant about who goes up on the judges’ screen. We have never worked in this manner before and it is challenging. However, we are improving day by day,” he claims.
A judge in the high court of India’s biggest state says on the condition of anonymity that the current system doesn’t take into account the bandwidth issues beyond Delhi and has too many server-related issues to be reliable. “It works for those in Delhi, but if multiple courts log in, the system collapses.”
There is another worrisome aspect to the current process. Often the judges have been forced to move to each others’ residences to sit together to attend these video hearings. Partly the reason is that it has not been easy getting two judges on the platform, together.
The practical health risk that arises, according to a lawyer, is that they are often sitting in close proximity without following social-distancing guidelines, and also have a team consisting of stenographers and other court officials sitting in close quarters. This, he says, is worrying, considering their age and the fact that there having been cases of Covid-19 that have been reported from the court.
The Vidyo app
The app that the Supreme Court has been using for these hearings is called Vidyo, made by a little-known New Jersey-based company. The app was referred to the Supreme Court by the National Informatics Centre (NIC). Vidyo mentions both academic and workforce collaboration with NIC on its website.
Lawyers say that the NIC, which had acquired 5,000 licences for the app, gave it to the judicial system for use during the pandemic without figuring out if it was the best app for the purpose. Sanjay Hegde, a senior Supreme Court lawyer, also points out that Vidyo is not exactly known as the app of choice for video conferencing in today’s technologically evolved world.
An anecdotal evidence of the lack of traction for the product in the consumer world is that a search on Google for Vidyo prompts the question: “Did you mean video?”
The NIC does have its own VC system. But as Kazim Rizvi, founder of public-policy think tank The Dialogue, says, to participate in a video conference through the NIC’s system, dedicated centres or studios must be used.
Efforts to connect with the NIC on the process that was followed to shortlist Vidyo did not yield any results.
Then there is the issue of security, as has been evidenced by video-conferencing apps being in the news recently. Rizvi says while most Supreme Court hearings are a matter of public record, there are many cases of extreme urgency which require confidentiality. “The Supreme Court routinely hears cases in which certain information is provided to the honourable judges in “sealed letters”. If there is any vulnerability in the application during the delivery of such confidential information, harm mitigation must be enacted. But we are currently unaware of any such procedure.”
Rizvi argues that “in order to maintain high privacy and security standards, now is the time when India should focus on developing an in-house app. NIC should start focussing on using technology that is developed in India in order to have complete control over the software and security protocols.”
Gopal Sankaranarayanan, who practises in the Supreme Court, says that India must look at creating well-defined protocols of the sort that have been put in place by other countries. I n the UK, Her Majesty’s Courts and Tribunals Service (HMCTS) has three main video-conferencing systems for courtroom use:
- The Justice Video Service, a comparatively safer system intended to be used between fixed endpoints such as prisons and Crown courts
- BT Meet Me, an approved audio-conferencing system of the Justice Video Service
- Skype for Business, which is intended to be used by judges on their HMCTS-issued laptops.
Unlike India, HMCTS took charge of training the staff and judges about the technology. It also tested it to ensure that it works smoothly for its users, and has issued guidelines for the same.
The high court judge quoted above also pointed out issues due to admin-level control not resting with the high court itself but with Delhi. This he says, can be addressed by allowing judges to choose the software they are comfortable with.
That is not an idea that everyone is on board with. Justice Lokur, for instance, points to the Free Open Source Software (FOSS) that is being implemented though the district-courts system and says that it is important to ensure compatibility with the process of digitisation that has been under way.
Justice Lokur explains, “Freedom to choose software for personal work and typing judgments is OK. If some other software is to be used, it should be compatible with FOSS so that there is seamless integration between the district courts, the high courts and the Supreme Court. Otherwise, the entire exercise will have to start all over again and will amount to re-inventing the wheel. It is this thinking of ditching the existing achievements that regrettably prevented complete and seamless computerisation of all courts in the hierarchy.”
A clash of cultures
The human element has been a crucial part of the courtroom all these years and the move to increase the tech quotient does take away the character the courts are used to, according to the high court judge quoted above. He adds that there are a lot of nuances that judges look for, which often get missed out when two-dimensional technology takes over.
According to V. Lakshmikumaran, managing partner of Lakshmikumaran & Sridharan attorneys, “Traditional lawyers are very comfortable arguing while standing in a packed courtroom and it is common to see a tête-à-tête between the opposing counsels who are arguing passionately. The experience via video conferencing, however, is very different … lawyers are not allowed to interject as and when they want.”
Sankaranarayanan says that many in the legal system, including judges, resist moving online. The reason, he says, is that many of them feel queasy offering justice through video conferencing.
“But I do not agree, as many countries have made that move, transitioning fairly smoothly without difficulty. We should at least move certain important areas online completely (like bail, eviction, and urgent interim orders), which won’t require extensive hearings and can provide access to those who would otherwise be discouraged to come to the Supreme Court because of expense and distance,” he points out.
All said, almost everyone ET Prime talked to agrees that there is a case for having more efficient use of technology in exceptional circumstances, guided by well-defined protocols and using the most appropriate of tools
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