This Article is written by Aparna Chaki, student of Heritage Law College.
The outbreak of COVID-19 has intensified and debilitated almost all countries of the nation – disintegrating them both economically and socially. Five months into the pandemic, India has become the third worst-hit country of the world. The country has undergone several lockdowns in various states and cities with schools, colleges, offices, and public places getting shut. Slowly and gradually the lockdown has been lifted with several restrictions imposed on various places. Norms of social distancing are being practiced and movement to foreign places has been intercepted. Even though lives are getting back to normalcy, the positive cases of COVID-19 have only seen a surge in the graph. The COVID-19 pandemic has paralyzed almost all sectors of the economy plaguing the normal life of several people. The judicial system of the country seems to be equally affected and the nationwide lockdown has compelled the Courts to shift to virtual court hearings.
NEW STRUCTURE OF THE JUDICIARY
The complete seizure of the judiciary is unenviable. Access to justice along with free and fair trial is rudimentary for all people. The pandemic had disrupted this procedure which is why the Courts have established the required IT infrastructure to certify that court proceedings are held uninterruptedly. The Supreme Court on April 6, 2020, in its bench comprising Chief Justice of India S.A. Bobde along with Justice DY Chandrachud and Justice L Nageswara Rao, passed directions for the conduct of court proceedings through video conferencing across the country till the COVID-19 situation does not get better. The Apex Court is also seen traversing further options for the establishment of virtual courts such that the lockdown and the discernment regarding the pandemic do not affect the efficient delivery of justice. At present, the Supreme Court has been holding three virtual courts via the medium of video-conferencing regarding some grave matters. It is apprehended that the Court shall increase the number of virtual courts so that it is easy for the judges to take up more cases.
The Apex Court has discerned that one virtual court is able to hear almost 40 matters in a day via videoconferencing. It also notified in standard operating procedures (SOPs) that the matters that had been listed for hearing before the pandemic hit shall be heard first followed by other matters. Also, under Article 142 of the Indian Constitution, the Supreme Court has directed all High Courts to formulate the necessary mechanisms for use of technology to conduct the court proceedings amidst the pandemic. Such a peremptory decision of holding virtual court proceedings was taken in order to assure that the court premises do not accord to the proliferation of the coronavirus. The Bench that took a decision regarding the conduct of virtual proceedings also directed that all the courts shall sustain a helpline for any resentment or atrocity that clients could have regarding the video conferencing procedure. Further, they were also directed that suitable disposition shall be made for the litigants who could not have access to such technological facilities.
The Apex Court governed that district courts in different cities shall also embrace the video conferencing mode as authorized by the concerned High Court. It has also been made clear that evidence shall in no case be recorded without the parties’ mutual consent via video conferencing. Following such directions, Karnataka and Bombay High Courts have adopted the medium of video conferencing to provide justice at such a pivotal time and under unparalleled conditions. Recently, Justice DY Chandrachud initiated e-court services for the purpose of traffic challans and for the e-filing system in the state of Karnataka. Such video conferencing equipment is being used to hold proceedings in matters entailing bail applications, remands along with both criminal and civil matters. These guidelines are however not being applied to proceedings that fall under Section 146 of Criminal Procedure of Court. Nevertheless, a question has been rising in the minds of people regarding the virtual court system. Are virtual courts a sustainable option?
ADVANTAGES OF E-COURTS
The guidance by the Apex Court also contains directions for people to go for e-filing in cases in relation to infringement of Intellectual Property Rights. This is a step that was to be anyway made compulsory in the commercial courts of cities like Mumbai, Kolkata, Bengaluru, and Delhi. Having court proceedings via video conferencing can be considered advantageous as it preserves the considerable court costs when it comes to infrastructure, staff, transportation costs, and security. It also becomes significant as it saves time and cost in the transfer of prisoners from jails. It helps in having tensile office hours along with less strenuous days and helping in saving office spaces largely. Majorly, the operation of such virtual courts is helping in containing the spread of the virus which is the need of the hour. Digitalization will minimize the enormous number of cases pending cases and can be an efficacious remedy for the delay injustice.
DISADVANTAGES OF E-COURTS
However, the use of videoconferencing and setting up of virtual courts have faced notable practical and legal issues. The legal issues include admissibility and legitimacy of the evidence that is received via such audio or video mediums. The witnesses’ identity, as well as the concealment of the hearings, are hampered too. It is no doubt that virtual courts or online court proceedings are a great way to have extensive access to justice. Nevertheless, this shall only be possible when all the persons involved in a particular case like the litigants, court staff, the concerned advocates, and the judges are provided the required arrangements to captivate and acknowledge the proceedings. It is also no secret that India does not have an evenly distributed internet connection across the country. A report conducted by TRAI in the year 2019 revealed that urban towns and cities of India had a high rate of internet subscriptions as compared to rural India that had only 27.57 of subscriptions per 100 people.
The same data also reveals that metropolitan cities like Mumbai and Delhi postulate around 1.15 crore and 2.20 crore internet connection respectively as compared to the North-East region part of our country which has only around 4.3 lakh connections. These data clearly underline the fact that people in such metropolitan cities have more chances of being able to have recourse to virtual court services. On the other hand, there is an enormous number of people who shall be unable to avail of such facilities because of the scarcity of elementary infrastructure. It is important to acknowledge the fact that there are many High Courts in our country that lack the basic IT infrastructure to conduct such virtual court proceedings. Furthermore, we cannot ignore the fact that not all advocates, court staff, judicial officers, and every person who is assigned with the works of the judicial system might be aware of such digital techniques and technological advancements.
WHY PHYSICAL COURT SYSTEM IS FEASIBLE THAN E-COURT SYSTEM?
During physical court proceedings, physical demeanor serves as a predominant expressive function especially at the time of cross-examination that eventually leads to discovering the truth. Evidence that is recorded on such digital platforms contorts the non-verbal indications or hints such as postures, facial expressions, and gestures. Slow streaming of the video due to poor internet connection may over-stress facial expressions by leaving body language or action partially shadowed. It is also being reported that many Advocates on Record (AoR) have been encountering technical glitches. They are on many instances being oblivious as to the status of their applications that they may have filed on an urgent basis and further technical issues in filing matters. Some other practical issues include poor and obsolete video and audio equipment, failure to secure internet connection at a stipulated time, power cuts, etc. It is pivotal to have a quality infrastructure for virtual hearings to be efficacious and triumphant.
Accessibility is the fundamental basis for justice delivery. The standard adjudication in the courtroom shall be of no advantage if justice cannot be retrieved by people in the first instance. The outbreak of COVID-19 has definitely acted as a catalyst empowering the digitalization of the Indian judicial system. This could be a great opportunity to minimize the pendency of cases put up before the courts. But, there are many obstacles in the practical inference of virtual courts. Plenty of litigants and people have been facing a dilemma in traversing a virtual justice system. However, an adversarial system built and operating on the abstraction of frontal cross-examination when transmitted via an online platform is compelled to experience issues principally when the bulk of citizens are devoid of basic internet or any idea of digital literacy. The courts can embrace virtual courts only when there is adequate infrastructure to provide to the citizenry.
Comprehensively, the pandemic has brought upon a new opportunity to advance and refine ourselves. However, there are certain loopholes that exist in our country that are putting a halt to the implementation policy of virtual courts. Even with this, in the lockdown period judgments have been passed in a total of 325 cases with 268 connected matters to it. The same data also revealed that around 623 cases were taken up during the lockdown period. It is true that virtual courts can never replace or become a substitute for open court hearings. Justice DY Chandrachud even contends that open court is the spine of the judicial system in order to protect the life of litigants, stakeholders, lawyers, clerks, and students, they are impelled to have online hearings.
NECESSARY STEPS TO BE TAKEN IN FUTURE
The virtual court system is no doubt filled with challenges and in order to address these challenges, it is paramount to come up with a structural policy that shall stimulate the framework and setting of e-courts. This policy shall further help in laying a palpable arrangement and regulation of the e-courts system in our country. Refinement of the country’s infrastructure is crucial in order to brace the e-court project. Disposition of vigorous security is another important aspect that needs to be taken care of. This shall be helpful in securing access to the case information for the concerned parties. Complexities in the e-courts mechanism might be a reason to discourage litigants from making use of such facilities in the country. Therefore, a seemingly easy, simple, and user-friendly mechanism is required to inspire the people to make usage of such e-court services.
It is also to be kept in mind that simply setting up of e-court services shall serve no purpose. There needs to be set up a committed trained team to sustain the e-data. Given the confidentiality and importance of such data like the bail orders, warrants, notifications, summons, order copies, minute entries, etc., the maintaining of such sensitive data is required. Supervision of training periods for the judges to familiarize themselves with the virtual court system can be a huge momentum in the victorious running of e-courts. At the same time, raising consciousness and awareness regarding such e-court facilities among people through seminars and talks can help people perceive the facilities that the e-courts can provide.
Further, the Hon’ble Supreme Court has firmly shielded the system of virtual courts saying that the basic prerequisite currently is to guarantee “the administration of justice” and not letting the judiciary collapsed during the time of the pandemic. The Apex Court spoke in favour of the system as its advantages are innumerable. In such a time of a pandemic, it is peremptory that execution of justice should be done keeping in mind the health of the people at large. However, it is to be understood that virtual courts might be an open option for people in near future but as of now when protecting oneself from the fatal pandemic this seems to be the only viable option as it does not nullify the principles of fairness that are impeachable to the process of delivery of justice.
- Kingshuk Banerjee &PreetiSahai, India: Virtual Courts in India, MONDAQ (May 14, 2020), https://www.mondaq.com/india/technology/933784/virtual-courts-in-india.
- RaghavOhri, Supreme Court explores ways to set up more virtual courts to ensure justice delivery, THE ECONOMIC TIMES (Apr. 19, 2020 11:31 PM), https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-explores-ways-to-set-up-more-virtual-courts-to-ensure-justice-delivery/articleshow/75239487.cms?from=mdr.
- Press Trust of India, One virtual court can hear 40 cases a day through video conferencing: Supreme Court, THE PRINT (May 18, 2020 08:25 PM), https://theprint.in/judiciary/one-virtual-court-can-hear-40-cases-a-day-through-video-conferencing-supreme-court/424464/#:~:text=New%20Delhi%3A%20The%20Supreme%20Court,video%2Dconferencing%20in%20a%20day.&text=As%20per%20earlier%20standard%20operating,the%20virtual%20courts%20(VCs)..
- Press Trust of India, SC issues guidelines for hearings through video conferencing across courts during COVID-19 pandemic, THE NEW INDIAN EXPRESS (Apr. 06, 2020 05:22 PM), https://www.newindianexpress.com/nation/2020/apr/06/sc-issues-guidelines-for-hearings-through-video-conferencing-across-courts-during-covid-19-pandemic-2126526.html.
- Press Trust of India, Top Court issues guidelines for court’s functioning amid COVID-19 crisis, NDTV (Apr. 06, 2020 06:20 PM), https://www.ndtv.com/india-news/coronavirus-india-supreme-court-issues-guidelines-for-courts-functioning-amid-covid-19-crisis-2207142.
- Manuraj S &MuthupandiGanesan, Time for India to embrace Virtual Courts even after the Coronavirus lockdown? BAR AND BENCH (Apr. 01, 2020 08:14 PM), https://www.barandbench.com/columns/litigation-columns/time-for-india-to-embrace-virtual-courts.
- Rintu Mariam Biju, Chandrachud during e-inauguration of Virtual Courts for Traffic Challans in Karnataka, BAR AND BENCH (Aug 07, 2020 11:23 PM), https://www.barandbench.com/news/justice-dy-chandrachud-e-inaugurates-virtual-courts-for-traffic-challans-karnataka.
- ETCFO, Corona impact: Virtual courts, video conferencing the way to go, THE ECONOMIC TIMES (Mar 20, 2020 03:46 PM), https://cfo.economictimes.indiatimes.com/news/corona-impact-virtual-courts-video-conferencing-the-way-to-go/74730102.
- Pramod Kumar Dubey, Virtual Courts: A sustainable option? BAR AND BENCH (Apr. 12, 2020 11:44 AM), https://www.barandbench.com/columns/virtual-courts-a-sustainable-option.
- RishaKumari, India: COVID-19 urges courts in India to go online: Pros and Cons of court hearings via video conference, MONDAQ (May 21, 2020), https://www.mondaq.com/india/operational-impacts-and-strategy/938322/covid-19-urges-courts-in-india-to-go-online-pros-and-cons-of-court-hearings-via-video-conference.
- Press Trust of India, Top Court says “Virtual Courts System” will ensure justice amid pandemic, NDTV (May 03, 2020 01:53 AM), https://www.ndtv.com/coronavirus/news.
- DhananjayMahapatra, Virtual courts cannot replace open court hearing: Justice Chandrachud, TIMES OF INDIA (May 25, 2020 06:59 AM),https://timesofindia.indiatimes.com/india/virtual-courts-cannot-replace-open-court-hearing-justice-chandrachud/articleshow/75961020.cms.
- Press Trust of India, SC defends ‘virtual courts system’ during COVID-19 pandemic, says it ensured justice, THE NEW INDIAN EXPRESS (May 02, 2020 11:48 PM), https://www.newindianexpress.com/nation/2020/may/02/sc-defends-virtual-courts-system-during-covid-19-pandemic-says-it-ensured-justice-2138432.html