Mary Mitzy | Ensuring justice in virtual courts: Who controls the mute button?

On this day last year, people all over the world were nursing new resolutions. The coronavirus shattered their hopes and dreams in no time. It spared none — not even the most important pillar of democracy — the judiciary. After the initial onslaught, it is said to have partially resumed its duties. So how did the Supreme Court of India function during the pandemic?

The Court completely shut the entry of advocates into its premises. In an epoch-marking decision, it threw all its former reservations vis-à-vis digital operations to the winds, and finally went online. The Court revived the e-filing portal, introduced long back but not in use by advocates. And, only urgent matters were taken up for the “virtual hearing”. The platform used by the Court is the Vidyo app.

During the initial stages of this changeover, the registry gave instructions to advocates over phone on how to log into the Vidyo app, when to log in, and so on. This was almost nine months ago. Today, nine months on, the Supreme Court still takes up only urgent matters for hearing. Its functional can at best be said to be partial. Most benches now have three judges sitting on alternate days for a few hours.

The online system is convenient for many advocates who returned to their hometown during the lockdown and don’t want to return to Delhi. Today we have lawyers appearing from various parts of the country before the Supreme Court as well as other courts. That aside, it has not been smooth sailing. Tech glitches and lack of Internet savvy plays a spoilsport in the day-to-day work of the court even after so many months have gone by.

Indian courts follow the system of an open court hearing. Everyone can watch the proceedings. But the Vidyo app has a limit in terms of the number of participants who can be admitted and the Supreme Court, too, came out with a notification restricting the advocates from sharing the link for appearance. It has affected mostly young advocates keen to learn court craft from watching the courts function.

But there’s been worse happening. Many a time, during hearing a case, the advocate was logged out at the relevant moment and was unable to log in. This resulted in the case being decided in their absence. It is with great difficulty that one gets one’s case listed for hearing and if it is decided in one’s absence then one’s entire effort becomes futile. On top of that, there is the pain of humiliation before one’s client.

The appearance of the advocates before the court is run by the control room, comprising a team of technical hands who are almost completely unfamiliar with the legal process. It is their job to identify the lawyers for each case as per the item numbers written before their names. The control room decides whose mic should be unmuted and whose video made visible.

Now, the cases heard by the Supreme Court have anywhere between two and 30 parties. Who decides who will be unmuted? A control room that has no idea about the proceedings of a case? Advocates keep sending requests to be unmated or for the senior advocate to be allowed to speak. But only if they are lucky will their request be granted before the case is over. Or else, you just count yourself to be on the “unlucky list”.

Besides, in a virtual court, there are limitations to the ways in which an advocate can try and persuade the bench to unmute them, once it has muted them to do which it has the powers. In a physical court hearing, the practice is to try and persuade the bench to hear them even if it puts the file down, and many do succeed in their efforts.

Then there is the interesting question of how come those who don’t want themselves to be visible appear on the screen when they are least expecting to be seen. The new practice is that, once the court starts hearing a case, the screen will show only those advocates who are arguing that particular case. But many a time, lawyers were caught on screen dressed casually and doing something else even when their case was not being heard. It led to much embarrassment in legal circles. Such situations could have been avoided if the control room had been more careful.

But the larger question is this: Are we going to continue to function in such a handicapped manner, and for how long? There are a large number of cases needing proper disposal. Many litigants’ lives depend on the disposal of their long awaited cases. Some of them are languishing in jails, some are waiting for their salary, some waiting to be appointed to a job to sustain themselves and their families. Is it not time for the highest court of the country to resume physical functioning like every other organisation, observing strict social distancing rules?

If this anarchy continues, people may have to turn to other ways to redress their grievances and one fine morning we may find that we can do without the services of the judiciary.