BCI is Against Virtual Hearings: Is it a Boon or a Bane?
The Bar Council of India (BCI) had written a letter to the Chief Justice of India regarding the system of video-conferencing for hearing cases and its impact on several lawyers who are facing the disadvantages of it. Manan Kumar Mishra, Chairman of the BCI sent this letter on 28th April 2020 amidst the on-going lockdown in the nation urging the CJI to discontinue this system of e-filings and virtual hearings after the lockdown is over. In his letter, Mr. Mishra has highlighted the “yawning gap” between the technology and resources available to the lawyers.
The whole world is affected by the pandemic and everyone is locked down in their houses. At this time of isolation, the thing which has saved our lives is “Technology”. It has kept us informed of the daily news, connected us through various social media platforms, kept us entertained and what not. It is because of the contribution and advancement of technology only that the businesses, companies, universities and schools are still running and are able to continue their work without being affected by the stop put by a pandemic.
The question arises, when almost all the sectors of industries are able to work or at least they are trying to work through virtual means, why is it that our lawyers are afraid and resisting to indulge in electronic hearings of the cases?
As mentioned in Mr. Mishra’s letter, the age gap, different manner of education, resources and technology available in urban and rural areas are a hindrance for lawyers to work through video-conferencing. In my opinion the factors such as age and education become irrelevant in front of a lawyer’s competence and inclination to learn. A lawyer must be, ethically and legally, competent. A lawyer who cannot perform electronic research at present time will not be competent. It means that as the society becomes more dependent on technology, our definition of “competence” must adjust with it. In the present scenario, lawyers must know how to deal with the impact of legal technology. Competent lawyers shall know how to use the technological assistance available to them. With the easily available and accessible technology, the solo practitioners and large law firms are now on equal foot than ever before. Although there remains substantial imbalance, but it is far narrower than it was before. In fact, it is believed that lawyers from small firms and solo practitioners are more computer-adapt than big lawyers as they usually rely on themselves rather than consultants or support staff.
At this time of pandemic, the lawyers can very well adopt the online means in their profession too just like other people are doing. Those lawyers who need technological support could report to the local courthouses for any assistance and also for electronic connection to the proceedings.
Other problem Mr. Mishra states in his letter that open court arrangements can never be substituted by virtual means and video conferencing and that the judiciary will lose its shine and trust of the people.
The traditional method involves a bench of judges sitting and a lawyer arguing by presenting documents, evidences and examining the witnesses. The trial of a case electronically through video conferencing differs extremely from the traditional methods.
Many lawyers, more than being unable, are unwilling to shift to electronic means as they believe that face-to-face human interaction in such matters in necessary. Also, they become uncomfortable by the idea of electronic hearing as the courts might lose the status of general acceptance and trust by the public. They fear that the society would not accept the electronic hearings of the cases as a fair adjudicative process and would want to resort to the traditional courtroom method. In this context Warren E. Burger, former Chief Justice of the United States has rightly said that-
“We should get away from the idea that a court is the only place in which to settle disputes. People with claims are likely people with pains. They want relief and results and they don’t care whether it’s in a courtroom with lawyers and judges, or somewhere else.”
Also, look at what are the advantages when the legal system moves to the online platform-
- It would eliminate travel and long travelling time. (after the pandemic gets over)
- It would eliminate delay in document transmission as the video conferencing supports interchange of high-quality audio, video, text and graphical information and it could be interchanged within minutes.
- There would be no inefficiencies in the presentation of evidence. They could be scanned and save the costs of printing large number of documents for different files.
- A major backdrop in the legal system of our county is the expense upon the parties to travel to the courts and offices of the lawyers on every date of the hearing. Video conferencing would save money and time for everyone involved in the trial.
- It would eliminate the hours wasted by the witnesses in waiting,
- Electronic recording of the hearing would make a sufficient record in itself and the media would be expected to improve its reporting on matters of importance.
- Parties could pay fines and fees by online modes like credit cards, Paytm, internet banking, etc.
Mr. Mishra also made a remark in his letter that if anyone tries to impose the new ideologies to support the legal system with technology, then he should drop any such idea.
This statement by him is a bit harsh on the capabilities of the technology as he does not realizes the scope and potential of technology in the legal system of a country where lakhs of cases in the courts with vacancies are pending. If used properly, technology can improve efficiency and save the time of trial. Video conferencing and technology is the way forward in the Indian legal system. A massive systematic change can be expected after the withdrawal of lockdown in the country. The change legal system is now undergoing will bring a degree of virtualism to the courtrooms and trials. The lawyers and judges need to understand this law that- “Change is the law of nature”.
By-
Ayushi Mishra
Student Reporter, INBA