The vision of virtual courts in India no longer seems audacious. The Covid-19 induced lockdown of courts has given a flavor of the potential that technology holds to address a key concern, i.e., access to the judicial system and therefore access to justice. The combined process of physical and virtual form, is staring at a future with immense possibilities in innovation and resolution of some of its long-standing problems.
The online platforms are far more customized and user friendly for the judiciary’s needs than any other ad-hoc solution that the judiciary has been forced to adopt. The current pandemic might finally nudge the judiciary in the direction of delineating administrative and judicial functions. The biggest shortcoming in the manner in which e-courts project has been implemented is the lack of a permanent body to think, plan and act towards technology integration in a complex system such as the judiciary. It will take few months at the very least for the judiciary to return to functioning at its normal speed. Although virtual courts with e-filing and video conferencing facilities have to continue to co-exist.
In India, most Advocates and litigants are new to this process and currently in their learning stage only to use these services. The e-filing system was introduced in the High Court of Delhi in 2009. Initially in the year 2013 it was introduced in company and tax jurisdiction. In the year 2015 it was extended to arbitration jurisdiction. In this process, the pleadings and documents are filed electronically at the e-filing centres. A digital signature of the lawyer/litigant is needed for filing such cases. An e-filing kiosk in the High Court of Delhi has been set up to enable the lawyers desirous of getting acquainted with the e-filing procedures to learn the system.
E-court is basically defined as a paperless court, wherein all the court procedures take place in a digital format. In an e-court lawyers need not carry heavy books for the purpose of advancing argument. The verdict can be pronounced on the laptop screens by the presiding officers.
The present government is taking active steps to establish e-courts all over India. All these government efforts will result in providing quick and cost-effective solutions to the litigants. The judiciary system in India with the help of e-courts can overcome the challenges and make the service delivery mechanism transparent, cost efficient and with minimal less time consumption.
To attend to equal justice and impartiality the law makers included the provision for open court in the both procedural law, Civil and Criminal. Section153B of Code of Civil Procedure mandates that the place of trial shall be deemed to be an open court to which the public has access to. It is the prerogative of the presiding judge to decide as to whether a trial of any particular case may not be accessible to the public generally such cases may be an exception.
Similarly, Section 327 of the Code of Criminal Procedure provides that criminal courts generally are deemed to be open courts to which the public have access to. Only trials of offences relating to heinous crime such as rape etc. are required to be conducted in camera. Here too, proceedings are arena exception. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. All cases before the courts, civil or criminal must be heard in open court. As far back as 1966, the Supreme Court has upheld the concept of open courts as being vital to the process of justice.
The open court principle finds its genesis in the 1215 Magna Carta. The specifically relevant reference is to Clause 40, which translates to “to no one will we sell, to no one will we refuse or delay, right or justice”.
This principle does not just talk about rights of litigants but the importance of participation of public in court proceedings too. While keeping delivery of justice, the Constitution of India provides for open Court and emphasises on open court justice delivery system and accordingly 145(4) of the Constitution mandates that no judgement shall be delivered by the Supreme Court, save in open court.
In virtual courts the links are made available only to the Advocates appearing in that particular matter. In addition, some courts restrict the number of links that are forwarded to the advocates and litigants. The public has no access to the hearings. This also effects the several public interest litigations. Many court circulars say, recording of the hearing is strictly prohibited.
One unexpected effect of video court is witness credibility. It is hard to explain how important it is to see a witness in person and to watch how that witness reacts under questioning. A classic way of observing the credibility of witness is to watch their hands. In a physical court, the judge can see the hands. In a virtual court, the judge can’t see a witness hand. Little things like this can make it harder to determine if a witness is credible or not. There is also risk of witness tampering. In a virtual courtroom setting, it can be hard to tell if a witness is being coached through text messages or some other dishonest method. Due to COVID-19 the legal community is using teleconferences and remote hearings through programs like Zoom so that personal injury cases can proceed to a settlement or trial.
Undisputedly, there is a world of difference between recording of witness through audio-video and physical court. When it comes to recording of witness, courts used to be cautious since the fate of the matter is decided mainly on the deposition of witness recorded in his statement. However, imagining recording of witness through video conferencing may face many difficulties, since trial courts and many subordinate, courts are not well equipped with internet infrastructure and adequate facilities and During recording of the witnesses of prosecution/ Plaintiff/ Defense has to get prepared well in advance and may need assistance during the deposing his witness like refreshing the memory which the law of evidence provides for. Even the court would miss the facial expressions, gestures. Delay in streaming, may create doubt on the recording of testimony.
Virtual court hearings have been made by the court and not explicitly by the parliament. The onset of Covid-19 led the Supreme Court to adopt virtual hearings to ensure safety of Lawyers, Litigants and general Public. Law regarding virtual courts is yet to be come into effect but as it is said some laws are made by court. The dispensation of justice is a human endeavor made up of laws, ethics, morality, wisdom and compassion. The absence of any of the aforesaid five ingredients changed by restrictive virtual situations, would render the exercise of justice only partially satisfactory or even downright unjust.
While the government popularly believes digitisation is the answer to all the problems of governance, and these are often excitedly referred to as “game changers”, issues related to digital technology solutions need careful analysis and an overhauling of both laws and existing laws before they are introduced. It is hoped that virtual courts will reduce the pendency of cases by reducing the time taken on small financial issues. But majorly policy changes always have unintended consequences. Hence careful thought is required on the types of cases and the parts of the judicial process that are amenable to going online. It should also be a matter of choice if participants on either side want to use the virtual route. Certain cases of tax, insurance and some corporate matters could move to the online dispute resolution process through negotiation.
Essentially, technologies alone do not improve the system, people do. Adoption of new and evolving technologies requires careful preparation to ensure that justice delivery services created by software engineers is matched by local court systems and the level of training given to those who handle them in India’s courts.
Seeing the current scenario, we have to address the challenges faced during e-court proceedings, so we have to draw a policy for encouraging the setting up of e- courts. It is critical to draw up a well-defined and pre-decided policy framework as it can help in laying a concrete roadmap and direction to the e-courts scheme of India.
Another important step is the need to upgrade the present state of infrastructure. The government needs to analyse the current situation and accordingly develop the infrastructure of courts. Also, a user-friendly e-courts mechanism, which is simple and easily accessible by the common public will encourage litigants to use such facilities leading to less hinderance in using this process.
The government must make dedicated efforts in the training of personnel to maintain all the e-data. These include maintaining proper records of e-file minute entries, notifications, service, summons, warrants, bail orders, e-filing etc. Conducting training sessions to familiarise the judges and advocates with e-courts procedure and framework which will ultimately help in successful running of e-courts more efficiently. Creating awareness around e-courts through talks and seminars can help bring to light the facilities and the ease that e-courts can facilitate.
Undoubtedly, this is an occasion for the Indian Judicial System to promote and accept the virtual framework for hearing cases and to proceed even after the Covid-19 pandemic. Technological advances and developments have penetrated people’s lives, and equally accessible technologies can be used by the court to minimise the pendency of litigation, speed up the disposal of cases, and to handle the case list effectively and efficiently.
However, the adoption of video conferencing technologies at court hearings must be limited to the length of the ongoing crisis. The automated courtrooms cannot replace the open court hearing procedure of the administration of justice. Inadequate technology and inadequacies of the virtual justice have been encountered by all those who have come before virtual courtrooms, and the difficulties posed by proponents have been widely reported. The technical advances in the administration of justice must also be incorporated in a progressive, systematic and staggered fashion, with protections to ensure that this concept of open court hearings is achieved in a holistic way and that it does not conflict with the administration of justice or the integrity and majesty of open court hearings or interfere with any interests of the litigants or witnesses. The e-courts approach should be seen universally keeping in view of the accessibility of internet in remote areas.
The future holds many changes. The online court raises complex concerns and questions yet it appears that in the bottom line, advantages outweigh the disadvantages. In my view, when a process moves online, its nature changes at the most fundamental level. It is neither feasible nor necessary for the online court to use the familiar tools of real-life court, instead new tools must be developed to account for technological development. The lessons to be learnt throughout this process might be able to improve the legal system in its entirety and in the dispensation of justice.
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