Senior advt and bar council vice chairman s prbakaran letter to mhc Cj now
The Hon’ble Chief Justice
High Court of Madras
Sub: Proposal to continue the court proceedings through video conferencing mode during pandemic and even after the Lockdown is over – objections – reg
The whole world these days is passing through a strange phase. The Covid-19 pandemic has spread its vicious tentacles far and wide. India in its valiant fight against the spread of Corona Virus has called for Lockdown of all its activities. More than 130 million people on this part of the planet are scrupulously observing Lockdown. More than 19 Lakh lawyers of India have also joined hands with the people of India in the War against Corona and are observing Lockdown, maintaining social distancing etc.,. We earnestly believe and hopefully pray that this difficult times would come to an end soon. At this juncture the members of the Bar are perturbed to hear that some section of the black robbed brethren in furthering their selfish agenda are trying to impress upon the Highest Judiciary to continue the conducting of the court proceedings through video conferencing mode during the pandemic and even after the Lockdown period in the state. They have been trying to sell this idea of ‘Video Conferencing Proceedings‘ as the pharmacopeia to solve all the ills of docket explosion and delays occurring in the justice dispensing system. 1
It is to be pointed out that those who advocate the concept of video conferencing as the alternate mode for the open court hearings have failed to address the core issues involved The fulcrum of the judicial dispensation in Indian context is based on ‘Audi-alteram-partem’ and also on the concept of justice is not only to be done, but is to be seemingly done. Trust is the core of the entire judicial dispensation process in country. It involves the trust of the litigant in believing that the justice being handed over to them was after a fair and transparent process. In the new concept of justice by video conferencing, which is now being advocated, there is a hitch. The ordinary litigant has to be impressed upon that the process is both fair and flawless. Any attempt to side step from addressing this genuine concern would lead to unnecessary fingers being raised which would ultimately erode the faith in the judiciary.
In so far as hearing of the cases by video conferencing is concerned, no procedure has been put into play. Advocacy is the art of convincing and it is bounden duty of the advocate to convince the court on behalf of his client. The Bar genuinely apprehends that the hearing of the cases through video conferencing mode may not give the advocates the leverage of convincing the bench which may ultimately harm their client’s interest and would also lead to briefs being garnered by only a few advocates who would be perceived as close to the bench.
Conducting of trial work through video conferencing is also undesirable in as much as the genuineness of the procedure of examination and cross examination of witnesses would be put to grave questions. The allegations of coercion, duress etc., would be easily heaped, in the absence of open court room examinations.
The production/appearance of accused during trial, remand extensions, physical verification, identification parade, etc., if done through video conferencing would lead to jeopardy in following the procedures for fair trials. The technology enabling the wide spread use of video conferencing has not been developed so far. The recent instance of notifying one particular App by some of the High Courts for video conferencing, which was ultimately turned down by the Home Ministry on the score that it is not safe to use the said App, as it could undermine our country’s safety and security, has also come to the fore. The non-availability of a common application or platform specifically tailored for the conducting of the court proceedings through video conferencing is the harsh reality which is a serious road block. The connectivity of the lawyers, litigants and the courts under one platform is very much essential for conducting such video conferencing. That apart it is to be pointed out that our country does not have the adequate internet connectivity such 5G etc., in as much as we are still grappling with the slow 4G connectivity. That apart, we are a rural and agricultural based economy where still the majority of the population resides only in the villages. Majority of the 19 lakh advocates enrolled on the rolls of the Bar Council of various state particularly in Tamil Nadu 1,10,000 lawyers enrolled in the state Bar Council not only resides in such rural areas but also carry on their practices only in the small municipal areas, catering to the needs of the litigants living in the remotest corner of the country where physical connectivity itself is a big problem and internet connectivity is still unheard off and also the poor supply of electricity particularly in suburban and rural areas will affect this entire system of digital tech of video conferencing. 3
It cannot be assumed that all and such of these advocates, who belong to the lower and middle rung of the society will be having internet connectivity, smart phones, i-pods, desktops and laptops, to take part in the video conferencing facilities.
When the situation of the majority of the advocates is such that, it is easy to assume what would be the problems of the poor litigants who are served by such advocates. Further it is to be pointed out that not only the court staff, but also the judges, advocates and litigants have to be given proper and effective training to handle and be part of such video conferencing facility. That apart, the regular hiccups of technical glitches, hangovers, power failures, black outs, power outages both at the ends of the Mofussil courts, advocate offices, litigant places are harsh realities with which we are living even in this century.
It is to be humbly pointed out that developed economies where such conducting of courts through e-conferencing or video conferencing is possible have not embarked on such missions. It is needless to say that transparency in justice dispensation of system is essential to reaffirm the faith of the litigant every time. Open court hearing was evolved only for this purpose and it has guided the system for all these centuries. The concept of conducting courts through video conferencing is certainly to be seen as a replacement of the said open court system. If that be so, proper and necessary studies have to be initiated, the views of both the Bench and the Bar have to be sought and considered properly. The genuine apprehensions have to be addressed. The litigant has to be given the assurance doubly that the video conferencing procedure of hearing the cases is fair and flawless. The issues of connectivity as well as complete unbiased hearing have to be seriously addressed.
A proper frame work of procedures with the consensus of the Bench and the Bar should be thrashed out and adopted, before making video conferencing as part and parcel of the hearing process. Failure to do so, would only show the attempt to introduce such video conferencing procedure as an half hearted attempt and aimed at playing to the gallery. Appearing and arguing before the court is entirely different from dealing with the case through video conferencing have a lot of differences .. The legal fraternity and litigant public in India having more and more respect over the judiciary, dispensing administration of justice. Arguing before the video conferencing creates strong suspicious because it is difficult and not considerable for the judges to find who is appearing before the video conference
Therefore, My Lord, it is undesirable from any point of view to bring in or promote the concept of conducting court proceedings through video conferencing at this juncture without hearing the views and addressing the genuine concerns and apprehensions of the members of the Bar and making proper and necessary provisions to protect the interest of the members of the Bar and as such it is humbly pleaded with the folded hands to drop all such proposals to introduce and promote the concept of conducting court proceedings through video conferencing.
Greatly obliged. . .
President, Tamil Nadu Advocate’s Association