Whether the remote hearings are on an online dispute resolution (ODR) platform, or e-courts hearing the urgent reliefs; there are very many loopholes that the Indian legal system is going through currently. And I will try and throw light on some of them in this article.
All of us are stuck in an unfamiliar and unprecedented situation with coronavirus wrecking hell in our lives. We all know that we are far from finding a solution to this problem. Even if, hypothetically and focussing on a distant silver lining; the lockdown is lifted ; we will still have to voluntarily practice social distancing.
We should not ideally be exposed to public places or places where there are more than say 4 people. And even if there are only 4 people, coming from different places and backgrounds, you don’t know if it’s safe to be amongst them. Accepting this reality, we all know it is going to be difficult for courts to function normally for a long time now. So, we are at the mercy of technology, online dispute resolution and remote hearings to survive and try and normalise the court hearings as much as possible.
However, we are also far from being good and efficient at remote hearings or using online dispute resolution effectively. It’s been almost a month since the courts started hearing urgent cases through remote hearings. Hearing the court experience, and other experiences from platforms and other modes of dispute resolution, this article aims to talk about the practicalities that we need to take into consideration for remote hearings.
Let me start my addressing the technical considerations that one will have to be mindful of:
1. INTERNET BANDWIDTH
The first and foremost hindrance, especially in India will be the internet bandwidth. We are a country which doesn’t have 5G yet. Efforts are being made to reach there, but currently we do not enjoy 5G services.
These days where parents are working from home; also have children who are attending online schools. Both of them use the internet and hence if someone wants to be on a video call using the same wireless internet, it becomes difficult for them. Of course we have our mobile internet to be used as hotspot but does that suffice the bandwidth we need? Now, I’m no engineer or I don’t understand the technicalities of what internet speed we require, but out of personal experience I know that what we have is not enough.
So, amidst lockdown we’re all hooked on the internet and all of us are going to have to be able to deal with the limited resources.
I will give you another example, I was recently attending a webinar hosted by SIAC talking about making the shift to online arbitration. The irony here is that the moderator himself had to leave the session midway because of internet connection issues. Just imagine the contrasting nature of the system wherein you’re talking about online recourse of arbitration and dispute resolution; but you don’t even have the means to explain the instructions online.
In the Indian context where most of the nation is comprised of people in the middle class and upper middle-class strata of society, it is very difficult to suddenly find the technology in order to suffice everybody’s needs.
Internet, as we know is a must to hold video conferencing and we need urgent attention towards that. Giving my own example again, I was speaking at a webinar on this same topic recently and before starting the video call; I made sure my family doesn’t use the WIFI and made them switch to their mobile hotspot so that there are no interruptions at my end for the Webinar.
There will be a lot of similar compromises, in each household when it comes to internet availability and usability in India. And this is one of the core areas that we need to work on.
2. TECHNOLOGICAL ADEPTNESS
When it comes to technological adeptness, the instances of the online court hearings for urgent matters that are currently taking place shall serve as perfect examples.
The Judges are still coming to the court premises in order to attend the hearings. This move still puts them in danger, considering the phase where India is with respect to COVID 19. The Supreme Court notification and guidelines on video conferencing also provides for infrastructure in the Supreme Court for parties and their advocates to utilise if they don’t own or have a laptop, mobile phone or tablet to use. Of course, social distancing is maintained and the parties/advocates are in a different room whereas the Judges are in a different room. But that still puts them in danger. You never know where parties are coming from and what conditions they are living in, whether those conditions are sanitary or not?
And with the recent news coming in from the Supreme Court where in one of the clerks tested positive for COVID, is just another example how dangerous it is for people to still venture out.
However, most people are not technologically adept to hear or appear for matters from the comfortable corners of their home. Either they don’t have the infrastructure or they are not absolutely convinced of the fact that they will be able to handle the video conferencing and the applications by themselves, without any help.
If I give another example, is the situation of Gujarat High Court; wherein sanitization tunnels have been erected so that people who NEED to come to the Court to facilitate the online hearings, can do so without worry. Technological inability is one of the biggest obstructions that we are going to face for remote hearings.
Also, most Judges or adjudicators in a court hearing, arbitration or mediation are generally beyond the age group of 40. Given a specific age group, it is not very easy for them to learn to use technology efficiently. And that shall be a big lacuna, in my understanding. In such a short time, to not only be able to learn the technology but also then master it and use it efficiently; is going to be a big task.
Another issue is that most lawyers use stenographers, and do not type or draft applications by themselves. It is only people currently in their 30s and the generation after that who are able to draft and type on their own devices. If you look at any well-established lawyer in their 40s and beyond; and I apologize in advance for the generalisation; but I am pretty sure that all of them use stenographers.
Where do we get the stenographers in a complete lockdown state, currently? And how do we manage e-filing as well? I have also heard complaints with regards to uploading the applications or petitions via e-filing and that the portal does not provide with ample memory strength. They have a cap of 2MB or 5MB files and sometimes that may be less for voluminous records.
This wave of change, in my humble opinion should not be resisted. However, having said which I absolutely empathise with the generation of lawyers, Judges, arbitrators and mediators who have never used technology and who will have to float above the pressure created by the situation and be able to learn afresh.
While that is also a rosy picture I’ve painted, more often than not, people will have to make real efforts to be able to accept and adapt to this change or learn how to use the computer, from scratch. And this we are talking about people who can easily afford learning. However, what about people with minimum resources who would not be able to even afford the usage of technology? That is a question left unanswered.
Recently the Chairman of Bar Council of India wrote to the Chief Justice of India advising against continuing virtual hearings after the lockdown is lifted. His reason was that most advocates are not able to attend to technology well; and hence unable to be self-sufficient.
We absolutely need a well-rounded approach here to make the entire legal community adept to technological needs that we are facing currently.
3. CHOICE OF PLATFORM
Choosing the correct platform is also an important consideration for remote hearings because confidentiality plays a huge role, for any type of dispute resolution process. All of us have heard and read about what happened to Zoom. The Government of India has now come up with guidelines to make sure that under dire circumstances, even if we use Zoom, then we must ensure taking certain preventive steps so that we do not falter or get our accounts hacked.
Hence, choice of platform is one of the most sensitive considerations to be made while going for remote hearings. Google Meet, I believe is one of the safer alternatives (not a paid promotion).
Having said all of this, we will still have to be very careful in making the correct choice for an appropriate platform taking in mind the safety, security, confidentiality of the proceedings. The Supreme Court uses this app called VIDYO, for their video conferencing and court hearings.
There is also another part of confidentiality wherein people remotely attending hearings have been caught recording the hearings on their phones. This is an absolute breach especially in commercial matters. So, we need to bind people by an oath or we need another way to ensure that such activities happen. But how do we do that? We cannot enter the houses of the ones appearing, except virtually. So how do we ensure that no one is recording these hearings?
These are a few technical considerations, that made me wonder and ask questions. I also wish to touch upon the considerations that a lawyer representing a client in a hearing or a counsel, should take into account before attending a remote hearing.
- The foremost thing is the decorum. A counsel needs to make sure to consider this online hearing just as important as personal court appearance. Formal clothes and attire; are not excusable. We all have read about how lawyers were not adhering to the code of conduct and formal dressing while appearing for online hearings. And we need to make sure to consider this with extreme sincerity.
- Absolute importance should be given to the written submissions. In India especially, more weightage is given to oral advocacy in comparison to sound legal drafting. However, when it comes to remote hearings; the technical glitches possible to occur are high as explained earlier. And hence, the reliance on written statements is bound to increase.
We have fast track arbitrations already in place wherein people tend to only rely on written submissions and oral hearings are seldom conducted. With the world going online and relying more on virtual hearings, it will be preferable for a lot of smaller disputes to adopt fast track arbitrations with focus only on the written submissions.
So, we need to make sure that our drafting is top notch and perfect, without any loopholes. Over the counter citing of case laws and introducing new precedents, at the time of the hearing; will definitely not be allowed anymore. So, one has to carefully draft the written submissions, to ensure that everything needed has been included and its carefully worded as well.
- Secondly, with respect to oral advocacy, we Indians have the habit of splurging on oral arguments going on for days and days. With remote hearings, we will have to cut short the explanation of each and every point and go ahead with the assumption that the adjudicator/mediator/arbitrator/Judge has read the files thoroughly and that explanation on facts and smaller points is not required.
The counsel also will need to be brief and crisp with their arguments; all the while making sure that you are articulate enough and that everyone concerned can hear and understand you appropriately. Oral advocacy in remote hearings is hence going to be tricky and not the exact same that happens in face to face hearings, especially for the ones who are used to court hearings.
Another point that I need to make here is coupled with my earlier technical consideration of being technologically sound.
Referencing of the written material: Often times you will have to take the Judges through the written material or you’re reading out from the submitted written material. Being able to share those documents online and handholding the Judge through that, is only possible if you know how to share the screen and approach that in the video application, you are using.
Referencing documents and sharing the screen for pointing out the appropriate para or lines is a task that every counsel shall have to learn. In Zoom and most other video conferencing apps, we have the option to share screen and show particular documents to the people in the meeting. So, one has to be prepared with all the documentation and files open in the background to quickly show them across to the Judges/arbitrators in the meeting. It again gets us back to the point of how technologically adept you are to be able to efficiently juggle between these screens and multitask.
Most senior counsel during oral advocacy are habitual with their juniors handing out files and case laws to them. It is highly possible that the same treatment may not be available to them in remote hearings as everyone will be practicing social distancing and each man will be left to their own mercy. Hence, the counsel have to be as aware and adaptive to technology for being able to be articulate in their oral advocacy during remote hearings.
So, oral advocacy in remote hearings is definitely interrelated to how well you are able to operate the video application.
- Another consideration is the entire concept of instructing counsels and arguing counsel will vanish or will be extremely difficult to survive, when it comes to remote hearings. The instructing counsel cannot discreetly guide or suggest something to the arguing counsel; during the hearing. Which they normally would if face to face. And this applies to all forms of dispute resolution.
How would they manage to do that here?
It will also come down to the fact that except for expertise, there will be just as much effort in mastering the technology by senior counsels. Even preparation by all parties concerned will be increased, because of inability of assistance during the hearing.
- Your preparedness will be absolutely visible and so will be your expressions. Unlike the courts or the arbitrations, there will not be a dias or any distance between you and the Judges. Your face will be visible and flashing on their screens; and hence the Judges will be able to read each and every one of your expressions. So, you need to be sure to not give away your bluntness or any of your overt expressions because even when not in the courtroom, utmost respect needs to be paid to the Judges.
- There is another consideration for counsel during remote hearings; which is witness examination.
Technology availability at the witness’s end and his ability to use that technology, is one of the most important questions to consider. Also being able to prepare the witness well in advance, to be able to show him the relevant documents are going to be tough especially when it comes to doing all of this on video call and not being able to meet face to face.
Often times, our entire cases depend on witness testimony. And if we are not able to prepare the witness well, or the witness is not able to attend to technology well; that can pose as a big hindrance.
So, we will have to rely on the written witness statements more than the oral testimony because of the reasons earlier mentioned. Reiterating the importance of drafting a witness statement.
Indian courts have earlier often taken witness testimony through video conferencing. The most famous case is that of David Headley giving his testimony through video conferencing as he was and currently is in an American prison. He was proven to be an accomplice in the 26/11 terror attacks and hence his testimony was taken by the TADA court through video conferencing.
What I mean to say it is not impossible for us to get through witness examination via video conferencing. There will just be additional challenges, that all of us will have to be more mindful of. The Courts and the arbitral institutions as well as the chambers of commerce conducting ADR hearings will have to provide technological solutions to be able to reach the witnesses easily. Easy access to technology whether it is mobile phones, internet, video calling apps in remote interiors of the country and villages will be needed to get witness examination, at times. And that should be made possible without having to endanger anybody’s lives.
However, gaining the certainty that the witness is not being prompted or not reading out of a script; is a challenge still left to overcome. There is no way one can be aware of the fact that the witness is not being helped in a manner disallowed by court, ordinarily.
These loopholes still remain and are going to be very difficult to find answers or solutions to and hence the only solid way to straighten this discrepancy will be to focus positively on the written testimony than oral.
- Another consideration is the transcripts:
Will transcribers also join a virtual hearing/meeting? Or do we have inbuilt transcribing softwares in our technology? If yes, are those softwares easily available?
These are obvious questions that come to mind. A lot of us, especially when a part of international arbitrations or complex arbitrations, rely heavily on transcripts. And that is very important for us to receive at the end of every day of the hearing.
If we happen to add transcribers to the virtual hearings, then technical mishaps might also hamper their ability to understand what the arguing counsel is arguing. If there are connection issues for example, they might not be able to hear what the counsel has said and in turn will not be able to add the same on the transcript.
We might need an inbuilt transcription software on to these video conferencing apps for us to be able to get clear transcripts.
However the same are not easily available and also come with a heavy price tag which shall be a difficult situation for people to purchase, especially for smaller disputes.
We also do not have inbuilt transcription services in any of the popular video conferencing apps, as of now.
The above are certain considerations that all of us should be prepared and mindful of. While I discussed all of this, it may sound like I only focussed on the problems. However, there are many benefits of online and remote hearings as well. And it’s just a matter of time that all parties concerned educate themselves and get themselves adept to technology. We’re also waiting for technological innovation with respect to certain concerns and maybe we will be able to ace the remote hearings, in no time.
I hope we give our undivided attention to get better and learn more during this period; so that we could take advantage of all the innovation once the world gets back to normal; however distant and far that reality may be. Be safe, all of you!
* Arbitration Lawyer, B.Com LL.B (Hons)