As courts move back to physical hearings, here is what lawyers miss about virtual courts

It is not only litigants who wait for their cases to be heard by the courts. For many lawyers, interminable wait times are also a part of their work profile.

In every court, there is a cause list – which shows the sequence of cases for that day. But it does not tell you when a case will be taken up. Therefore, a substantial part of the day gets blocked since one must be constantly present in court.

“The other day, I had matters in the Supreme Court and the Delhi High Court,” senior advocate Sanjoy Ghose told Scroll.in. “I was at the Supreme Court but I realised it would take time for my matter to come up. So I drove to the High Court, did the hearing and came back to the Supreme Court.”

Instances like these are common. And they lead to a lawyer’s workday – researching, drafting, preparing for matters, meeting clients and so on, effectively starting in the evening, after court working hours.

However, when courts moved online during the pandemic, the situation changed. Lawyers could continue with their work while waiting for their matters to appear.

Now, with courts returning to physical hearings, after almost two years of functioning virtually, some lawyers miss these efficiencies of the online world. However, some also want a return to physical hearings, leading to a debate in the legal world on what a post-pandemic judiciary should look like.

Virtual virtuosos

Many lawyers pointed out that virtual hearings made them realise how the court system as it existed before the pandemic could be improved. “The system we had during the pandemic ensured greater efficiency, convenience and ease for everyone,” Ghose said.

The reasons for this: ease of accessing multiple courts, shorter waiting times and lesser travel.

“Young lawyers do not have a single court practice,” advocate Shadan Farasat said. “In an online system, they can do multiple courts without rushing.”

Further, when arguments are not taking place in a case, which is on most days, the hearings are often routine, relating to case management such as filing documents, seeking a date or reply and getting notice issued to the other side. These can be shifted online, many lawyers say.

“The costs of physical courts are too high since a case is mostly comprised of routine hearings,” criminal lawyer Abhinav Sekhri said.

The art of argument

However, while acknowledging the benefits of virtual courts, many lawyers also believe the act of convincing the court happens better physically. “Virtual for many proved too hard for lengthy arguments,” Sekhri said. “For arguments, physical hearings are better.”

Physical courts are useful especially where the court is not looking at a matter favourably. “The ability to engage is better in physical courts,” Farasat said. “Especially where the court is not with you in a matter.”

Advocate Soutik Banerjee added: “As a counsel, when I show a document [and argue], I want to see how the judge responds. I will strategise my arguments accordingly. These finer nuances were difficult in online courts, especially for criminal matters. I felt I could give better representation to my client when I come physically.”

Physical courts also proved better than virtual courts in criminal matters, where the work is not as document-based and cross-examination of witnesses is required.

“If you are doing a cross-examination, a lot depends on the body language of the person,” advocate Shreya Munoth explained. “You change questions and change your manner of cross-examination depending on the demeanour of the person.”

A divided court

Due to reasons such as these, as the courts are moving towards more physical hearings, lawyers are divided on how the courts should function: to what extent should the court accommodate online hearings?

At present, while there are still limited options for virtual hearings, several courts are now mostly physical, the most they have been since the pandemic began. The Supreme Court has kept the option of virtual hearings open on certain days and occassions. Chief Justice NV Ramana has promised to continue this in order to promote accessibility.
Delhi High Court and district courts also started physical hearings on March 2, with limited virtual access.

However, many lawyers told Scroll.in that despite the option for virtual appearances, many judges prefer that lawyers come physically.

This shift towards physical has been supported by lawyers’ associations, which had been making a push to return to physical courts. Welcoming the return to physical hearings, senior advocate Vikas Singh, president of the Supreme Court Bar Association, said, “​​The entire bar is very happy.” He pointed out that they want further reduced options for virtual hearing.

While acknowledging the convenience of virtual courts, senior advocate Pradeep Rai, vice-president of the Supreme Court Bar Association, said, “Many clients and lawyers felt that they were not given the proper representation. And sometimes there were technical problems.”

Both Singh and Rai believed that lawyers working in established chambers benefit from more virtual hearings. However, for others, it would be beneficial to come to court physically.

As a result, many young lawyers want a return to physical courts. “There are more opportunities to argue for junior counsels in physical courts since many times you get a chance to speak because your senior is busy in some other court,” said Banerjee, who has been practising for six years in Delhi. “Thus, learning is better physically.”

Hybrid system

However, some lawyers who spoke to Scroll.in also wanted a stronger push for the hybrid system going forward. “When we have improved upon technology [during the pandemic], it makes no sense to give all this back,” Ghose said. “There are issues but we can adopt a hybrid model that marries both physical and virtual.”

Explaining how the middle ground could be implemented, advocate Megha Bahl said: “I don’t see why all courts cannot distinguish their cause lists into matters which can be taken up online and matters which have to be necessarily done physically.”

Women lawyers

Online courts impacted several groups in different ways. For instance, some women lawyers with primary household and caregiving responsibilities found online courts beneficial and thus preferred hybrid hearings going forward.

“Due to gender stereotypes, responsibilities of child-caring still fall on women,” explained advocate Anindita Pujari. “Thus, they lose out in the race, especially after marriage and kids. At the same time, there is no institutional support, because of which many women have to take a break for a few years. Till the time this stereotype changes, a hybrid system can help women lawyers.”

The benefit of virtual hearings on women, especially new mothers, was recently acknowledged by Justice DY Chandrachud. Last November, over 100 women lawyers had also sent a representation to Ramana, saying that virtual hearings have been beneficial for them and asking the chief to continue virtual or hybrid hearings.

Also read: Why India’s well-paid senior advocates want court hearings to stay online – but junior lawyers don’t