India Chief Correspondent Neelabh Bist reports on recent steps taken in the Indian high court system to conduct physical proceedings again after a period of COVID-19 shutdown in favor of virtual appearances, stressing that reversion is critical for the survival of some young professionals and financially less well-off lawyers. He files this for JURIST from New Delhi.

Seventeen months after the courts in India went into physical lockdown due to the Covid 19 pandemic, the Indian High Courts are conflicted about whether or not to ‘go physical’ with court appearances amidst the uncertainties of the pandemic still looming over the nation.

Gujarat High Court has set an example by declaring itself reopened for physical hearing subject to the Covid situation prevailing in the state. It has been closely followed by Allahabad and Bombay High Courts, which opened their gates for physical appearances on July 14th and August 2nd respectively. Madras High Court on the other hand is not yet convinced that it is time to resume physical appearances of lawyers in courts. While dismissing a plea filed to fully resume physical hearing, the Court opined that there is still an uncertainty over a third or even further waves of Covid-19 hitting the Indian states.

In response to the recommendations sought from its Court regarding resumption of physical courts, the Telangana High Court Bar Council suggested a phased opening and a hybrid work system in the courts where virtual courts can be held few days a week in addition to the physical hearing system. The hybrid system of hearing has also been requested by the Bar Council of Delhi. Working on similar lines, Madhya Pradesh High Court is giving the lawyers the freedom to choose their mode of appearance from either physical or virtual hearing in urgent matters. It also introduced the concept of a drop box where the petitions, cases, applications may be deposited for filing.

Holding substantial hearings in the prevailing virtual system is not a sustainable approach. The new Union Minister of Law and Justice in a recent event emphasised that virtual hearings cannot substitute physical hearings and also expressed his wish to discuss the issue of resuming physical hearings with the High Courts’ Chief Justices.

The discontinuance of physical hearings in the Courts has affected the economically backward members of the legal fraternity the most, who have been struggled with their finances in the virtual system of legal practice. Scores of lawyers are coming forward with requests to reopen physical courts as most lawyers practising in the subordinate courts in India do not have the proper electronic infrastructure  – such as good WiFi, laptops etc – with them to conduct virtual hearings. Moreover, the inability of many to adapt to technological change as well as a general slump in the economy has resulted in many lawyers taking up some part time occupation so as to put food on the table whereas others have been forced to give up the profession altogether.

The recent practice by courts of taking up only fresh urgent matters for virtual hearings has resulted in limiting work for young professionals. In India, for young members of the Bar, income through filing of fresh cases and regular appearances in different courts, tribunals and quasi judicial authorities was a consistent source of income, but since the courts have gone virtual with only urgent matters being put up, such income has been stalled for them. Needy lawyers across India have requested State Bar Councils to provide them with some financial assistance, but with lack of adequate case filing fees deposited with the State Bar Councils, there is only so much the Bar Councils can do to help the lawyers with their limited resources.

Talk of formalising live streaming is making the rounds of the Indian legal fraternity. The judges, lawyers and other legal luminaries are seeing the importance of what live streaming of court-proceedings would entail. Gujarat High Court has already taken a step towards live-streaming its proceedings to provide the “common man” access to judicial proceedings. Orissa High Court also launched live streaming last week with the aim of enhancing accessibility and transparency. The Chief Justice of India, Justice Ramana, has stated on record that the Supreme Court of India is actively considering commencing live-streaming of its court proceedings, with the e-committee of the Apex Court already finalising the draft rules. The CJI was quoted as saying that “the people of India have a right to be informed about the institutions which serve them. It is only on the backs of an informed citizenry that a representative democracy can survive and evolve.” He further mentioned that through live-streaming, access to justice will become a true reality.

Even though virtual hearings have made for good ad-hoc arrangements, they have not been successful in completely replacing the traditional courtroom setup. There remains a pressing need for the resumption of physical hearing in courts. The important developments realised through the virtual setup should be integrated into the legal system so we can foster a better legal system in post-pandemic India.