Online Hearing

What is a Online Hearing?

• Online/Virtual hearings pertain to judicial proceedings conducted via video conferencing, wherein the entirety of the proceedings is not held in a physical setting, allowing for the participation of individuals remotely. Such hearings may adopt a hybrid format, wherein certain participants engage in the proceedings through online platforms while others are physically present.
• Virtual courts via video conferencing are a fundamental right under India's Constitution. Any barriers to access should be removed. Lawyers must not face discrimination for choosing virtual hearings.^[1] This inclusivity enhances efficiency and access to justice, bridging traditional norms with modern tech for everyone's benefit.
• During virtual hearings, plaint and other documents are filed electronically, arguments are heard over videoconferencing/teleconferencing, evidence is submitted digitally, judges decide cases online either presiding from the physical Courtroom or sitting in some other place.^[2]

Official Definition

• In the Sarvesh Mathur Case,^[3] the Supreme Court of India issued instructions to promote remote proceedings via video conferencing:
  • The order mandates that within two weeks, no High Court should deny video conferencing or hybrid mode hearing access to any member of the Bar or litigant. Simultaneously, State Governments are tasked with providing necessary funds to High Courts for the prompt implementation of facilities required to facilitate such proceedings.
  • Furthermore, the order emphasizes the need for High Courts to offer free and robust internet facilities, including Wi-Fi with sufficient bandwidth, to advocates and litigants within the precincts of the court. To streamline the process, links for accessing video conferencing and hybrid hearings will be included in the daily cause-list without the necessity of prior applications. Notably, the order prohibits the imposition of age or arbitrary criteria for availing virtual or hybrid hearings, promoting an inclusive and accessible legal environment.
  • Additionally, the order outlines a stringent timeline for the establishment of a Standard Operating Procedure (SOP) within four weeks. Justice Rajiv Shakdher, along with designated individuals, will lead the creation of a model SOP, ensuring uniformity across all High Courts. The transparency and accountability measures also require High Courts to furnish details such as the number of video conferencing licenses, hybrid infrastructure, and a court-wise tabulation of hearings conducted since April 1, 2023.

• Ministry of Electronics and Information Technology is actively developing an Indian made Video Conferencing software, it has been informed that NIC is also exploring the option of implementation of Bharat VC for eCourts which is powered by Indian product of M/S Techgentsia and it is under trial for use as uniform Video Conferencing platform.^[4]
• In reply to Rajya Sabha Question No.1885 for 16/03/2023 regarding e-Courts project,^[5] the High Courts furnished the funds released for infrastructure development in the last three years:

• Furthermore, the High Courts also furnished the details of courts where virtual hearing is taking place along with details of cases heard through virtual hearings:

Live-Streaming

• Live-Streaming means and includes a live television link, webcast, audio-video transmissions via electronic means or other arrangements whereby any person can view the proceedings as permitted.^[6]
• The Supreme Court of India released ‘Draft Rules for Live Streaming High Court Proceedings’,^[7] which indicate that live streaming and recording of proceedings are likely to be implemented soon for High Courts. Consequently, the details regarding the various manner in which live-streaming is being adopted by the High Courts was furnished:

• Supreme Court

The Supreme Court ordered courts and tribunals to set up video conferencing services for lawyers without prior requests. High Courts must offer video and hybrid hearings, ensure good internet access, provide training, and establish infrastructure by setting deadlines. State funding is needed, and efforts to improve connectivity in specific regions are ongoing. Since October 20, 2023, all courts and tribunals must provide video conferencing services to litigants and lawyers post-lockdown.^[8]

• Delhi High Court^[9]

The Delhi High Court’s video conferencing rules apply to all court proceedings, requiring proper attire and decorum, specifying technical requirements, and enabling remote appearances for advocates, witnesses, and parties. These rules aim to boost accessibility, efficiency, and cost-effectiveness in legal processes, outlining protocols for different case types and allowing physical hearings based on discretion or requests.

• Bombay High Court^[10]

The High Court of Bombay introduced Video Conferencing Rules in January 2023 to regulate remote court proceedings, ensuring access to justice, efficiency, and decorum. Applicable to civil, criminal, and family matters, these rules outline eligibility criteria, approved platforms, procedural guidelines, etiquette expectations, and contingency plans for technical issues.

• Madras High Court^[11]

The Madras High Court's 2020 Video Conferencing Rules aim to streamline judicial processes using remote technology, enabling accessibility, efficiency gains, and cost reductions. These rules cover usage scope, designated technology, procedures, confidentiality measures, and benefits like convenience and improved access to justice, while acknowledging limitations in technical reliability, security, and personal interaction compared to in-person hearings.

• National Company Law Appellate Tribunal^[12]

The National Company Law Appellate Tribunal revised its procedure for virtual hearings via Cisco Webex, effective August 4, 2020. Applicants must email mentioning applications, including case details, contact info, and consent for virtual proceedings. Strict rules on document submission, connectivity (preferably via stable desktop/laptop/tablet), speaking protocol, attire, and behavior during hearings are outlined. Parties receive three non-shareable appearance links, and recording proceedings is strictly prohibited under penalty.

• Competition Commission of India^[13]

The Competition Commission of India set out guidelines for Virtual Hearings, including rules for Video Conferencing (VC), limited logins per party, decorum expectations, a prohibition on recording proceedings, and restrictions on sharing VC links. Parties must file documents in advance, coordinate for CCI premises usage, and ensure only authorized individuals attend. Violations may result in legal action.

International Developments

• United Kingdom

The updated Civil Procedure Rules, notably Practice Direction 51Y, now accommodate remote hearings via video or audio link.^[14] Initiatives like the Online Solutions Court pilot enable entirely online resolution of certain civil claims, eliminating the necessity for physical courtroom appearances.^[15] Specific tribunals, such as the Employment Tribunal and the Immigration and Asylum Tribunal, have also established guidelines for remote hearings tailored to their respective jurisdictions.^[16]

• Singapore^[17]

The Singaporean government has updated laws to support online legal proceedings, ensuring compliance and validity in virtual settings. Courts are equipped with technology for remote participation, including video conferencing and digital evidence presentation. Singapore promotes e-litigation, encouraging legal professionals to utilize electronic means for case management and communication within the legal system.

• European Union

Several European countries, such as Germany, France, the Netherlands, and Estonia, are integrating online elements into their legal systems. For instance, Germany's Judiciary Modernization Act now allows virtual court sessions.^[18] Additionally, the European e-Justice Portal, an EU initiative, aims to facilitate cross-border access to legal systems and may eventually encompass guidance on digital legal proceedings.^[19]

• United States of America

Courts have partnered with platforms like Zoom for Government, bolstering security for legal proceedings and compliance with regulations like HIPAA.^[20] Some jurisdictions are exploring remote jury trials to address challenges in selection, deliberation, and maintaining trial integrity. Federal and state courts have issued specific rules and orders governing online proceedings, detailing procedures and technical requirements.^[21]

Research that engages with Virtual Hearing

Measuring Access and Fairness in Remote Court Proceedings

The article ‘Access and Fairness in Remote Court Proceedings’, released by National Center for State Courts, delves into the experiences of court users in response to the widespread adoption of remote proceedings. The primary goal of this research is to assess fairness and access in a practical setting, emphasizing a focus on real-time implications rather than solely on long-term policymaking.

The Chapter 6 of ‘NCMS Baseline Report on Case Management System’ explores “video conferencing”. This section of the research examines the utilization of video conferencing facilities from a distinct perspective and offers preliminary considerations that High Courts should take into account before implementing video conferencing to facilitate remote proceedings.

The report ‘Disconnected - Videoconferencing and Fair Trial Rights’, released by CHRI, documents the experiences of 20 criminal lawyers and 10 judicial officers of criminal trial courts across the country, to understand the implications that videoconferencing hearings have on the fair trial rights of accused, especially of those who participate in these proceedings from prison.

The brief ‘On-Line Hearings in Justice Systems’, released by Office of the High Commissioner (UN Human Rights), explores how COVID-19 accelerated the rise of online hearings in justice systems worldwide, allowing continuity during the pandemic. While enhancing access and efficiency, they raise fair trial concerns. To ensure fairness, precautions are essential, aligning with international human rights law, particularly the ICCPR, emphasizing individual rights over efficiency in adopting online hearings.

The article ‘Video Conferencing, E- Filing, and Live Streaming in the High Court’, released by DAKSH, elaborates upon the Supreme Court directions to high courts to adopt video hearings, resulting in varied approaches across courts. It expands on the involved rules, guidelines, and SOPs governing video conferencing (VC) and e-filing, shaping a hybrid judicial system.

The article 'Virtual Hearing’, written by Mr. M. Govindarajan, explores how COVID-19 swiftly pushed courts, especially the Supreme Court, into virtual hearings via Article 142 orders. Guidelines were issued, stressing decorum and proper attire during online appearances. Instances of misconduct led to court reprimands and directives, emphasizing maintaining professionalism in virtual settings. Rules restricted sharing video links without permission and imposed fines for misconduct, like attending from vehicles. Despite challenges, the judiciary efficiently adapted, ensuring access to justice during the pandemic.

The Institute of Company Secretaries of India outlined the development of virtual hearing in India, namely, ‘Virtual Hearing by Judiciary, Tribunal and Regulator’. The research explores how virtual hearing has become relevant in the recent discourse and how the implementation is being carried out by different levels of Indian Judiciary.

The article ‘Practical Considerations in Remote Hearings’ explores how remote hearings pose challenges for the Indian legal system due to internet limitations and technological unfamiliarity. COVID-19 forced courts to rely heavily on online platforms for urgent cases. However, issues with internet access and tech proficiency, especially among senior lawyers, affect the process. Choosing secure platforms and prioritizing written submissions over oral arguments become crucial.

Similar Terms but Different Meanings

• Paperless Courts

Paperless courts signify the transition from conventional paper-based record-keeping to a digital framework. This paradigm shift involves the electronic storage and management of documents, case files, evidence, and court proceedings, replacing reliance on physical documentation.

• e-Courts

The eCourts Project, born from the 2005 ICT policy, led by the Supreme Court's eCommittee, aimed to modernize India's judiciary through technology. Funded by the Department of Justice, it focuses on nationwide District Court modernization, emphasizing citizen-centric services, decision support systems, transparent information access, and improved judicial productivity for an affordable, accessible, and transparent justice system.

• Digital Courts

Digital Court is a foundational digital infrastructure for the law and justice sector; ideally, it functions as a natively digital platform through which judicial services may be delivered. Establishing a digital court involves not just building a technical platform, but also re-engineering administrative processes to: (i) enhance access to justice, (ii) boost existing systemic capacity, and (iii) improve the efficiency of the overall judicial administration system.

• Virtual Courts

A virtual court is an arrangement in which judicial processes are carried out online via digital technology and channels of communication. The judges, counsel, litigants, and other participants can participate in court procedures without personally being present in a courtroom by using video conferencing, electronic file management, and other online methods.

Way Forward

Online hearings, conducted via video conferencing, revolutionize legal proceedings by enabling remote participation. While they enhance access and efficiency, concerns arise regarding fair trials and technological disparities. It's crucial to bridge the digital divide and ensure adherence to human rights laws. These virtual proceedings intersect with terms like paperless courts, e-courts, digital courts, and virtual courts, each emphasizing different aspects of the legal system's digital transformation. Balancing innovation with safeguards for fairness and inclusivity remains pivotal in navigating this evolving landscape.

References

1. All India Association of Jurists v. Uttaranchal High Court, WP (C) No. 941 of 2021.
2. 103rd Report on Functioning of Virtual Courts/Court Proceedings through Video Conferencing <https://d2r2ijn7njrktv.cloudfront.net/IL/uploads/2020/09/11150617/103-Report-on-Virtual-Courts.pdf>.
3. Sarvesh Mathur v. The Registrar General of Punjab and Haryana High Court, WP (Crl) 351/2023.
4. Ministry of Law & Justice (Department of Justice), Virtual Hearing of Cases in Courts <https://cdnbbsr.s3waas.gov.in/s35d6646aad9bcc0be55b2c82f69750387/uploads/2022/11/2022110986-2.pdf>.
5. Ministry of Law & Justice (Department of Justice), e-Courts project for online hearing <https://sansad.in/getFile/annex/259/AU1885.pdf?source=pqars>.
6. Model Rules for Live Streaming and Recording of Court Proceedings <https://cdnbbsr.s3waas.gov.in/s388ef51f0bf911e452e8dbb1d807a81ab/uploads/2021/06/2022091599.pdf>.
7. Id.
8. Supra note 6.
9. High Court of Delhi Rules for Video Conferencing for Courts 2021 <https://delhihighcourt.nic.in/uploads/VC_Rules2021.pdf>.
10. Bombay High Court, No. Rule/P. 1603/2022 <https://bombayhighcourt.nic.in/writereaddata/notifications/PDF/noticebom20221202173434.pdf>.
11. Madras High Court Video Conferencing in Courts Rules 2020 <https://districts.ecourts.gov.in/sites/default/files/Madras%20High%20Court%20Video%20Conferencing%20in%20Courts%20Rules%202020_0.pdf>.
12. National Company Law Appellate Tribunal, Standard Operating Procedure for Ld. Advocate/Authorised Representative/Party-in-Person for Mentioning the matter for hearing through virtual mode <https://nclat.nic.in/sites/default/files/2022-04/SOP.pdf>.
13. Competition Commission of India, Standard Operating Procedure (SOP) for Virtual Hearings <http://164.100.58.95/sites/default/files/news_ticker/SOP.pdf>.
14. Practice Direction 51Y - Video or Audio Hearings during Coronavirus Pandemic <https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part51/practice-direction-51y-video-or-audio-hearings-during-coronavirus-pandemic>.
15. Doron Menashe, A Critical Analysis of the Online Court, U. Pa. J. Int’l L. Vol. 39:4 <https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1967&context=jil>.
16. HM Courts & Tribunals Service, Evaluation of remote hearings during the COVID 19 pandemic <https://assets.publishing.service.gov.uk/media/61b71ebd8fa8f5037b09c7b1/Evaluation_of_remote_hearings_v23.pdf>.
17. Charlie Harrel, Digital “War Rooms” in Hearings, Trials and Beyond: How Technology Innovations in Singapore, the UK and the US Are Transforming the Legal Landscape <https://v1.lawgazette.com.sg/2016-10/1686.htm>.
18. Germany: New Law Allows Broadcasting and Recording of Court Proceedings <https://www.loc.gov/item/global-legal-monitor/2017-10-24/germany-new-law-allows-broadcasting-and-recording-of-court-proceedings/>
19. Press Release: EU takes important step towards digitalisation of justice systems <https://www.consilium.europa.eu/en/press/press-releases/2023/12/08/eu-takes-important-step-towards-digitalisation-of-justice-systems/>.
20. Eric Scigliano, Zoom Court Is Changing How Justice Is Served <https://www.theatlantic.com/magazine/archive/2021/05/can-justice-be-served-on-zoom/618392/>.
21. <https://www.courts.wa.gov/newsinfo/content/Best%20Practices%20in%20Response%20to%20FAQ.PDF>