On April 24, the Supreme Court Bar Association resolved to urge the chief justice of India to limit video conferencing to the time period of the lockdown, and resume open court hearings after the lockdown. There is no doubt great merit to the idea of courtroom hearings in administration of justice.
However, the pandemic has shown us that the walls of a court room are no longer necessary for adjudicating rights, and that a person in need of justice can potentially knock on the Supreme Court’s doors from thousands of kilometres away. And as we hopefully move towards rebuilding society as we know it, there are at least three reasons to start talking about how to sustain online access to the Supreme Court, in addition to in-person hearings, to make the Supreme Court a more inclusive and accessible institution for enforcing our rights and freedoms.
The first and most obvious reason is access to the Supreme Court. As a report from 2015 suggests, distance from the Supreme Court and the level of economic development of a state correlate significantly with the cases that make up the docket of the Supreme Court. A study carried out by Nick Robinson shows that in 2011, appeals from the Delhi high court to the Supreme Court outnumbered the appeals arising out of the high courts in Kerala, Gujarat, Assam and Jharkhand combined. Enabling remote access to the Supreme Court can remove this geographic barrier to the Supreme Court, thus ensuring wider access to justice in the Supreme Court.
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Second, with the proliferation of public interest litigations in the Supreme Court, and the dilution of the rule of standing – that the injured party alone may seek redress from the court – we are seeing more and more instances of problem-solving from a distance. Easy access to the Supreme Court under Article 32 has led to it becoming the first forum of rights adjudication, regardless of where the violation or denial of one’s rights occurs.
More and more cases in the Supreme Court are filed by groups or individuals who are, at best, public-spirited individuals having no actual connection to the rights violation or dispute. This in turn has led to individuals or groups who are actually and materially affected on the ground being denied their day in court out of a double whammy: they cannot afford to go to Delhi, and their parent high courts are hesitant to hear their cases – out of a concern for institutional deference and propriety – because they raise questions already pending in the Supreme Court.
The removal of those suffering a violation of their rights from the process of adjudication altogether, on account only of geographic proximity to the Supreme Court, renders those outside of Delhi voiceless. It can also lead to ineffective and impractical solutions to complex legal problems because contextual nuances – which can be gathered from hearing those who are actually affected – cannot be obtained from the public interest petitioner. By enabling online access to the Supreme Court on a permanent basis, those most acutely in need of enforcing their rights are more likely to be heard, thus moving from a paradigm of problem solving from a distance to problem solving in proximity.
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Thirdly, and perhaps most importantly, permanent online access to the Supreme Court can have the effect of democratising the law-making process. For better or for worse, the Supreme Court has become a site of law-making, over the years, through its powers under Article 32 and 142 of the constitution.
While judgments that have the colour of judicial law-making have far-reaching consequences on people across the full territorial extent of India, the participants in this process of law-making are confined to the judges of the Supreme Court, members of the Delhi bar, and the public interest litigant in Delhi. A significant number of stakeholders located elsewhere in the country are nowhere to be found in this process. Permanent online access to the Supreme Court may, however, enable better involvement of stakeholders from a variety of socio-cultural, and economic backgrounds, be it lawyers or litigants, and thus expand the democratic pie.
Moving the Supreme Court online will require active participation from all stakeholders involved. Judges of the Supreme Court, state bar councils and lawyers across the country will be required to modify systems and practices to better enable online adjudication. The Supreme Court, for example, will be required to live stream these online hearings to the world at large, in line with its judgment in Swapnil Tripathi vs Supreme Court of India, 2018, to ensure transparency and maintain the spirit of open-court hearings. Keep in mind that the openness of offline courtroom hearings is still a question to those who cannot access Tilak Marg.
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Towards opening access to the Supreme Court to all, the government’s involvement in funding and setting up infrastructure to enable seamless online access to the Supreme Court will also be crucial. Since a vast number of cities and towns do not have adequate connectivity and internet infrastructure, some state investment in infrastructure will be imperative. Finally, and most importantly, participation of the general public across the spectrum of stakeholders, and not merely bar associations, is crucial to move forward this conversation.
This is not to say that there is no value in court room adjudication or lawyering. But it is the qualitative openness and accessibility of courtroom hearings that undergird a just and fair judicial system. Developing and sustaining mechanisms to ensure video conferencing hearings in addition to courtroom hearings will only ensure that there is more than one way to access the highest court of the land – and thus access justice. While creases are to be ironed out, we must not let the creases limit our imagination in realising a more participatory and accessible Supreme Court.
Vishwajith Sadananda is an advocate at Arista Chambers in Bengaluru.