Highlighting the “yawning gap” between availability of resources among various income groups in India, the Bar Council of India has addressed a letter to the CJI urging him not to continue the system of E-filings and Virtual headings, post lockdown.
The BCI has urged the CJI to clear air on the “implacable and unworkable” propaganda being manifested by many eminent lawyers and Judges (both sitting and retired), regarding digitalization of court work and continuation of conducting hearings video conferencing even after expiry of the lockdown period.
The Council has advised that many lawyers, belonging to humble backgrounds neither have the resources nor the education to adapt to such technological advancements over night. Thus, digitalization of Court work will only deprive such persons of their livelihood.
“People sitting on elevated chairs seem to be, probably, far away from the ground realities and that is why they are harboring and advocating such thoughts. They have perhaps forgotten the resources and technology or rather lack of it available on a wider spectrum here in India, though our capabilities are wide and far reaching. However, practically, India is a vast and diverse country, where there is often a yawning gap between the resources and the technologies available in metro cities, as compared to other urban areas, and rural areas. Even in urban cities, there are both more developed cities and less developed cities.
There is humongous difference in the technical knowhow of persons often according to age gap, and often according to difference in mode and manner of education, and resources and technology available from place to place.
…I can emphatically say, that 90 percent of Advocates, and Hon’ble judges throughout the length and breadth of the country are themselves unaware about the technology and about its nuances, maybe some of them could learn after proper training and maybe some of them would still find it a difficult task even with training to make themselves self sufficient in this regard.” the letter asserts.
The Council has also stressed on the importance of “open court room practice” and advancement of arguments in the court, in the justice delivery system.
“Technology can always aid the justice delivery system where needed, but to propose to have the court proceedings being heard and decided only on video with all three concerned, (the judge and the two parties), all sitting at three different places and to propose to do away with the norm and practice of society, the law courts and open arguments, cross arguments, cross examinations of a witness, a question by a judge, an immediate response or lack of the same by the Advocate can never ever be acceptable. In our opinion it can never be substituted totally and if the same is proposed to be done, the justice delivery system will loose its sheen, shine and trust of the people,” the letter states.
The Council further said that virtual court rooms may undermine Judicial transparency.
“There cannot be any doubt that the open court room practice has its own values and importance. It is full of transparency and it results in true justice; the arguments through the Video-Conferencing can never be substitute to the “open court room judicial functions”. In video-conferencing one can never be sure of transparency, while in open court hearings, justice is delivered in open court, discussions/arguments are made not only in presence of concerned parties and their Lawyers but in front of other Advocates, Media people and Litigants who are all present. Justice should not only be done but seen to have been done,” the letter states.
He has thus urged the court that if at all, virtual court rooms are to be introduced, the same should be done in a phased manner.
“Let’s not undermine our existing successful system of working of Legal and Judicial Systems. If anything has to be done, it has to come about in a slow and phased manner and the technology can never be a substitute to the practice of law, and the practice of the bench, and to the justice system as it exists today,” the Council said.
On this note the Council also informed the CJI that no other country in the world was planning to by-pass the existing system of court room or to continue with hearings via video conferencing, post lockdown.
“As the representative of Indian Bar, my humble submission would be that the Bar may not allow any such idea to prevail here in a country as vast and diverse as India. It is akin to the thought process of the Queen Marie-Antoinette, the queen of France during the French Revolution who upon being told that her starving peasant subjects had no bread stated “Let them eat cake”. Thus, sitting on a high chair, and making and agreeing to such thought process (like Mr. Justice Shah) shows how such persons are so so distant from the ground realities,” the letter read.
Recently, former Chief Justice of the Delhi High Court and former judge of the Bomay High Court, Justice AP Shah had advised the CJI to implement the concept of “virtual courtrooms”.
The Bar Council, in its letter, has “opposed” this idea, while pointing out that the same would render 95% of the Advocates in the country “brief less” and “work less” and the practice of law will become confined to a limited group of lawyers, which would in turn adversely affect the Justice delivery system.
“Therefore, if anyone is thinking of imposing such ideology or system upon our old-aged, well proved Judicial System, they would be best advised to drop such ideas. One should not forget that even for Corona Virus, while no allopathic medicine is working, our old age well established “Ayurvedic Desi Medicines” and treatments are being recommended and proving well for its prevention and cure,” the Council remarked.
However, at the same, the Council said that it appreciated the idea of the Indian Courts, particularly the Apex Court and the High Courts, in conducting “virtual hearings” only for extraordinary urgent matters.