Author: Saumya Sakshi Co-Author: Shubhangi Sharma ( Amity Law School, Noida)
Coronavirus first started as an epidemic, but soon turned into a pandemic. Its first case was reported in Wuhan China, now more than 18 million of the population is infected by this deadly virus. India’s first confirmed Corona case was reported on 30th January 2020 in the state of Kerala. From January to July, within a span of 7 months, India became the world’s third most affected country with COVID-19. For stopping the spread of coronavirus, the Government of India under the flagship of Prime minister Narender Modi announced a nationwide lockdown from 24th March 2020. Due to the sudden outbreak of this virus, there is no discipline that is not impacted by it, some survived and some sunk into the darkness. People are locked in their houses and are working from home by way of video conferencing, zoom calls and WhatsApp calls through which they are connected to their bosses, co-workers, and employees. The pandemic has also affected the justice delivery system and things attached to this system. In the wake of this pandemic, the courts have started working on urgent- only matters and on online-only mode. This crisis came as a challenge for courts to administer justice on an online platform.
Work was done in the field of Online Court
The demand for digitalization of the judiciary was raised several times in the past. The Online court which was a dream of yesterday, is now the reality of the present. Just like Rome was not built in a day, the same is with online courts, they have their own history. The Indian Government appointed an e-committee of the judiciary in December 2004, work of the committee was to supervise the steady adoption of electronic infrastructure by courts throughout the country. The Policy and Action Plan Document for Phase 2 of the e-court project of January 2014, argues on video conferencing and recording facilities for courts and prisons, not just on remand matters but more than that. The Objectives Accomplishment Report (2019) of Phase II of the e-Court Project affirms that approximately 3,388 court complexes and 16,755 courtrooms throughout the country have already been computerized. Video-conferencing gadgets have been allocated to 3,240 court complexes and 1,272 prisons.
The Supreme Court also gave some judgments which will lead the way for the online court in the coming days. The apex court on many events approves and discusses the need for digitalization of courts. In the case of State of Maharashtra vs Dr. Praful B Desai (2003 4 SCC 601), the Supreme Court considered recording evidence by way of video conferencing in the criminal trial as per the Section 273 of the CrPC. It was also stated in this case that recording of evidence by way of video conferencing was a ‘procedure established by law' under Article 21. In the case of Swaprul Tripathi vs Supreme Court of India ( 2018 10 SCC 628), the Supreme Court allowed live-streaming of court proceedings and open court hearings, particularly for those cases which were of national and constitutionally importance. But it's the pandemic crisis that compels the courts to go online.
Virtual Courts- Need of the time
This pandemic affected every domain of work, as courts are closed from the very outset of the lockdown announced. Extending lockdown resulted in a pile of cases in the courts. The legal system is set to take a paradigm shift. Since society is governed by the law; this pandemic gives a way to change the old age system of practicing and litigating. Chief Justice Sharad Bobde on March 16 gave a very bold decision, that justice cannot be kept on hold and virtual courts had to begin functioning. Due to lockdown, courts were hearing the only urgent matter and only lawyers and one litigant were permitted in the courtroom. But due to increasing cases, the supreme court of India on 6th April 2020, took cognizance and laid down guidelines titled “In re Guidelines for Court Functioning through Video Conferencing during COVID-19 Pandemic”, for the functioning of the courts through video conferencing. The apex court is using emails and messaging services for filling issues and executing its business. Lawyers are pleading through video conferences and judges are taking notes on the same. During this pandemic, the supreme court heard about 593 cases till 4th May 2020 and the apex court passed 41 judgments in this period. On 1st June 2020, the first time in the history 3 judge bench in Supreme Court conducted a paperless hearing. High courts also started working in the field of digital hearing and adjourning the cases by following guidelines of the supreme court. Kerala High court started conducting live conferences and streaming the same. Bombay High Court also started hearing matters by video-conferencing. The high court of Jammu Kashmir set a remarkable example in this hard time, hearing is being conducted on the landline and mobile phone for those lawyers who don’t have internet access. And lawyers who are not able to connect through video conferencing, they are being permitted to connect through WhatsApp video call. The message of the court is very clear, that no or slow internet access cannot prevent the court to impart justice amid the lockdown. Soon district courts are also expected to conduct hearings via video conferencing.
Courts started functioning on urgent-only issues but now shifted to online-only which came to be a new normal for the regular working of the courts. In online mode courts are mandating compulsory e-fillings and registration of pleadings or applications with a summary of argument and law relied upon. On the basis of this, a judge gives notice to the respected parties which are also communicated electronically to all parties. Then trials are being conducted through video conferencing. That’s how the online court is working nowadays.
Stumbling block in the implementation of Virtual Court in India
There is no doubt that the present circumstances during the pandemic require advanced solutions in almost all the fields, including the Judicial system. Virtual courts have come up as the best possible way out, but at the same time, it has various drawbacks also. The major concern that follows the same in India is the public access to the proceedings. Not even 18% of people have access to the internet. On one side there are metropolitan cities like Delhi and Mumbai where crores people have access to the internet and on the other hand, the North-East states have barely 4.3 Lakh people who have access to the Internet.
There are 24 High Courts and 600 district courts in India but all of them do not have proper IT infrastructure. Though Virtual courts are more feasible once there are proper resources for the same but at the same time, the initial expense for building such infrastructure is quite high.
For a better success of the virtual courts, it’s also important that the judicial officers, staff, and advocates have training for the same, that is judicial literacy, for better implementation.
The major drawback of the virtual court is audio and video testimony. During court testimony, the witness is under certain pressure and so the paralinguistic actions are also easily visible like body language, facial expressions, time is taken to answer, etc. But when a witness is giving an audio or video testimony, he/she is in a comfortable environment like in his house, with the family, with friends, in the office, etc. In such a case it is quite difficult to take such non-verbal factors into account. The same also applies to the cross examination of the witness. Such virtual court hearings are also not in access to the public perspective. During the virtual court hearing, the judges might lose control on the other parties resulting in complete chaos and also the contempt of court.
Another major issue is the cyber security of such hearings. As one knows that the cybercrimes are increasing at a high rate and when it comes to the judicial hearing, there is a lot of confidential information that is needed to be protected.
Therefore, when it comes to virtual courts, there are a lot of things that are to be improved, brought up, and taken care of including cybersecurity, IP infrastructure, digital literacy, etc.
Future of Virtual Courts
There has been a clear clashing of opinions on whether or not the virtual courts should be in operation in the near future. There are many people who are in support of Virtual courts and at the same time, there are people who believe that the implantation of the same may lead to non-access of justice to the huge population in India due to improper IT infrastructure in courts and non-availability of the Internet in the remote areas of the country.
It is not that virtual court is a new concept in India but it’s just that people have not been completely aware of it until now, there has been work done for the proper implementation of the same but behind the curtains. Hon’ble CJI stated that there is no looking back, clearly means that everything cannot be the same as it was earlier. In the coming time, the virtual courts and the physical courts will have to function simultaneously. In the most necessary circumstances only shall the physical courts be accessible and for the same, there has to be an effort for avoiding unnecessary disputes.
Also, there has to be an effort made to make the people aware of their rights and remedies so that there is easy access available and they are not completely bound to an advocate so as to inform them about various things. 5 judge bench E-committee has been formed for the same and under a standard operating system, has been working to form proper rules and regulations for the proper functioning of the virtual courts.
24x7 e-filing, online fee payment, e-signs, and updates on any more information required also have been taking place online. As mentioned earlier, not only should the Judicial officers, staff and advocates should have technical knowledge but the major step that has to be taken is that digital literacy should be included as a part of the curriculum in the law colleges, so that the budding lawyers have proper knowledge about the same.
The pandemic has been something unexpectable to the whole world. India has been quick in taking action for the same. The judicial system also opted to the online mode by overcoming all the obstacles that came in the way and by 19th June 20, the Supreme court already heard 6,991 cases and 25,000 video links have been shared with advocates for their participation in the same. The statistics clearly show that participation of people and the advocates in the virtual courts have clearly increased and the Covid-19 pandemic has not stopped the judicial system from continuing its work and grant justice. Also, the physical courts have been working on the most necessary matters. The Virtual courts and the physical courts will have to work hand in hand in the coming future also.