India Chief Correspondent Neelabh Bist reports on the India Supreme Court’s recent expression of its disinclination to recognize virtual court hearings as a fundamental right under the Indian Constitution. He files this for JURIST from New Delhi.

A recent petition filed with the Supreme Court of India by the National Federation of Societies for Fast Justice (an advocacy NGO that campaigns for judicial reforms), former Central Information Commissioner (CIC) Shailesh Gandhi and former Mumbai Police Commissioner Julio Riberio asked for access to virtual court hearings to be recognized as a Fundamental Right. The petition also requested the Supreme Court to stop the High Courts from discontinuing virtual court hearings in their courts without the approval of the Apex Court.

The petitioners submitted that virtual court enables litigants to address the courts and have access to justice at a reasonable cost. They submitted that it allows a rural man in India to fight his cases sitting in his village without burning a hole in his pockets. They further argued that due to virtual hearing, litigants now have a choice of engaging a local lawyer of their choice which promotes fair access to justice.

The petitioners also placed heavy reliance on the Supreme Court E-Committee’s findings that virtual courts make the justice delivery system affordable, accessible, cost effective, predictable, reliable and transparent for litigants coming from marginalized sections.

However, the Court was not fully convinced that access to virtual court hearing should be elevated to the status of a Fundamental Right. It reminded the petitioners that the new system of virtual hearing of cases was started so that the courts could continue uninterruptedly during the unforeseen circumstances precipitated by the Covid-19 pandemic. The Court stated that the rights of Indian citizen are not curtailed through physical functioning of courts, as only a small percentage of cases are brought to the Supreme Court for adjudication and most cases at their initial stage are dealt at the trial courts/district courts which are easily accessible to each and every citizen of the country.

The Court was thus firm on the point that the virtual system of hearing in itself will not be successful in helping the litigant’s interest of access to justice. It reminded the petitioners that acceding to the constant demands of the lawyers, it has already started a hybrid system of hearing. It also referred to the Standard Operating Procedure (SOP) released by the Supreme Court, by which from 20th October, 2021, compulsory physical hearing will be held two-three days a week in the Supreme Court.

The reaction of the Supreme Court does not come out as a surprise. The Court is going back to physical functioning because it understands the fact that in India, still a sizeable section of lawyers do not have good internet connectivity or the technical know-how of accessing devices. The Courts have tried their best to train lawyers to adapt to the new technology, but the virtual court set-up still carries a lot many problems for the lawyers belonging to the lower rung of the society. For the same reason, well-paid senior advocates want to stay online, but the majority wants to revert to physical hearing.

Even though the virtual system of hearing did provide a reliable alternative to the justice delivery system in India during the pandemic, it would need serious structural changes to effectuate its continuity in India. The virtual system is bereft of the ‘human touch’ that physical appearances in courts bring. The general reaction to the idea of substitution of physical courts by virtual ones was best captured by the Supreme Court when it stated: “If we allow virtual courts, that will be sounding the death knell for physical functioning of courts (in India)”.