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This article is written by Surbhi Jindal, a law student at Dr B.R. Ambedkar National Law University, Sonipat, Haryana. The article attempts to discuss the challenges posed by the COVID-19 pandemic in the virtual justice delivery system. 

Introduction 

“Justice delayed is justice denied.”

Have you ever heard this phrase? I am sure you must have. Before the COVID-19 pandemic arrived, India already had a lot of pending cases in judicial records. People were undoubtedly stressed and wondered when they would get justice. But whatever the case may be, still something was done to deliver justice, even if gradually. 

But the situation worsened when this COVID pandemic arrived, and it posed a challenge to the Indian judicial system in its initial phase. Courts were shut down, and we had to adapt at a faster pace to this digital realm. Therefore Indian courts adopted this new standard of digital hearings in COVID times. Though it brought a sense of relief for protecting oneself from the disease, it certainly posed challenges to the hon’ble judges, advocates, and clients.

Earlier, virtual courts were present only for a few cases like remand of prisoners where the movement was restricted. However, the pandemic forced the whole justice system to shift to a virtual setting so that the basic necessity of a civilised society is not threatened.

This article attempts to discuss the problems faced by the Indian courts in the virtual scenario. It will also try to highlight the opportunities and challenges faced in virtual courts and how virtual courts can solve the problem of pending cases.The article will also discuss the hardships faced by the lawyers during the pandemic while offering their services. There has remained an ambiguity in the concept of a court being a service or a place. This article will clear the concept by providing various provisions as highlighted in our various statutes. 

The E-courts project was drawn on the National e-governance plan and has been in existence in India since 2007. How are e-courts different from virtual courts, and what are the advantages and disadvantages of e-courts? This article attempts to put a way forward to enhance the scope of virtual courts and how they can be beneficial in the long run.

Court : a service or a place

The pandemic forced us to shift to virtual courts. After that, a debate arose over whether the court is a service or a place? This question arose because if the court is a service, then continuing with the virtual realm is not a problem in the long run, and justice can be served through this medium. But if it is a place, virtual courts are not ideal and hence cannot deliver solutions for the long run. 

Critics argued that a court is a place and not a service, while supporters of virtual court asserted that a court is a service and not a place. Now to answer this debate, we have to look upon the court’s definition as given in various statutes, if any. 

The problem arose when neither the Civil and Criminal Procedure Code nor the General Clauses Act, 1897, defined the court. But the legal glossary of the legislative department defines the court. The legislative department is under the Ministry of Law and Justice, and it establishes the court as a place where justice is administered. 

The Indian Evidence Act, 1872 defines a court under Section 3 that includes all the judges, magistrates, and all persons except the arbitrators, who are legally authorized to take evidence. In the Indian Penal Code, 1860, Section 20 defines the ‘Court of justice’ as a judge or body of judges assigned by the law to act judicially to administer justice. 

The US federal judiciary has defined the court as a government entity authorized to resolve legal disputes. On the other hand, Black’s law dictionary defines a court as a government body consisting of more judges to adjudicate disputes or administer justice. 

From the definitions presented above, it is clarified that the court has different meanings. But essentially, they point out two common elements that answer our debate of whether the court is a service or a place. The two elements are as follows: 

Element 1: Courts are government entities composed of one or more judges. 

Element 2: Courts deal with the administration of justice. 

Therefore, courts are more of a service as compared to a place. Also, the concept of the virtual court is not new, but it has been highlighted recently in the wake of the COVID pandemic. Hence, virtual courts are fully capable of delivering justice as a service, and they do not necessarily need a place to administer justice. 

Virtual courts : challenges, opportunities and the way ahead 

Virtual courts are the courts where objections and other documents like vakalatnama, affidavits, and other written submissions can be filed electronically. The arguments are heard virtually through videoconferencing/teleconferencing, and evidence is submitted digitally, and cases are adjudicated by the judges either by presiding at physical courtrooms or any other place. The parties to the issue need to be present virtually at the time of the hearing. This means that the virtual courts’ hearings are synchronous. 

Virtual courts are the way to transform the physical process of documentation and hearings digitally from start to finish. It brings us opportunities as well as challenges. Challenges can be turned into opportunities if requisite and necessary steps are taken. Similarly, opportunities can be turned into a challenge if we fail to identify and give necessary weightage to those. 

Let us have a look at the opportunities and challenges in a virtual court system. After that, we will also discuss how the virtual court system can enhance its scope. 

Challenges in a virtual court system

According to Rajya Sabha’s One Hundred-Third Report on Functioning Of Virtual Courts/ Court Proceedings Through Video Conferencing (Interim Report), a few challenges and opportunities were reported while adopting this new normal of virtual courts. It also explained why it could not be permanently replaced with regular courts. 

Indeed, the importance of physical courts cannot be denied. Also, physical courts cannot be replaced with virtual courts ultimately because physical courts allow the administration of justice on the basic principle of open court as enshrined in the Indian Constitution

The report was presented by the Department-related Parliamentary Standing Committee On Personnel, Public Grievances, Law And Justice. The Committee considered the recommendations and observations from the Secretaries of the Department of Justice and Department of Legal Affairs and Secretary-General of the Hon’ble Supreme Court, Delhi High Court Bar Association, and representatives of the Bar Council of India, and Delhi District Courts Bar Association. The observations are summarized here as below: 

  • Digital divide 

It was brought to the notice of the Committee that many advocates and litigants, especially those living in the rural areas, lack the basic infrastructural facilities and high speed of network connectivity which is generally necessary for the virtual hearing of cases. 

In this kind of situation digital divide makes justice unaffordable and inaccessible for a large number of people. 

The Committee has provided three dimensions to the concept of the digital divide. Three dimensions are as follows: 

  • Access divide: It includes access to equipment and infrastructure. 
  • Connectivity divide: It provides access to the high-speed internet connection required during virtual hearings. 
  • Skill divide: It consists of the skills and knowledge needed to use digital platforms. 
  • Technological competence 

The Committee was informed that most advocates do not have sound knowledge of information and communication technology. They showed their concern that these advocates will be unfairly at a disadvantage from the advocates who have sound knowledge of computers and have access to high-speed network connectivity. 

  • Open court principle 

Some experts opine that virtual courts go against the fundamental principle laid down in the Constitution of India. Virtual courts threaten the constitutionality of court proceedings and undermine the basic structure of law, i.e., the rule of law. 

They further added that virtual courts are not at par with the open court principle under Article 145(4) of the Constitution of India, and Section 327 of the Code of Criminal Procedure, 1973, and Section 153B of the Code of Civil Procedure, 1908. 

From time to time, the Honorable Supreme Court has reiterated the importance of the open court principle. However, it also observed that live streaming of court proceedings is an extension of the open court principle. It promotes transparency and reinforces the true faith in the judiciary by the public. 

  • Issues on data breach and data security

There is a considerable concern relating to the issue of cyber security in India. They are of the view that virtual courts can compromise the privacy and confidentiality of data. Also, Indian courts take assistance from third-party apps like Vidyo, Cisco, and Jitsi, which poses a threat to data security. India does not yet have stringent laws that could ensure the protection of our data. While the internet has proved to be a boon to us in the pandemic, it has also been a bane in terms of compromising the data. 

Opportunities in the virtual justice delivery system

Following are the opportunities offered by the virtual justice delivery system. These are as follows: 

  • Virtual courts are more accessible, affordable, and time-friendly. They provide greater access to justice. The costs of both the litigant and lawyer are saved due to the factors like no travel etc. The traditional courts are accessible to a few and involve a lot of time and costs of the parties and lawyers. 
  • Around 30 million cases are pending in Indian judiciary records. If some of the cases are transferred according to specific needs, it will also help reduce the long-pending backlog of cases. 
  • Virtual courts should work on promoting the principle of distributive justice. That can work only if the court services are affordable to all the sections of society. The digital divide and lack of knowledge of technology should not become the hurdle. Digital justice should be accessible to all. 
  • Virtual courts promote flexibility in a lawyer’s life. A lawyer can argue more than one case a day while sitting in any corner of the world.
  • Virtual courts promote a safer environment. They extend help to witnesses, women, children and especially-abled, those who find traveling to courts traumatic and difficult.
  • There are specific categories of cases where final hearings and appeals are not necessary. Hence, those cases can be disposed of easily through virtual courts. It will cut down the unnecessary litigation costs and will provide spacious courtrooms with fewer crowds. That becomes even necessary in pandemic times where social distancing is the rule. 
  • Virtual courts will usher in time management. Justice can be delivered faster with fewer resources.

Ways to enhance the scope of the virtual court system 

After analyzing the key challenges and opportunities in the virtual court system, we can conclude that the virtual court system is necessary for the present and future eras. If our economy wants to see justice done right, virtual courts are the solution. 

Talking about the challenges we discussed, then we have to overcome them. Our virtual justice delivery system can enhance its scope by taking various measures. Some of the steps are discussed as follows: 

  • Government should provide an alternate system where advocates can access the technology and participate in the judicial system. 
  • The scope of virtual courts needs to be extended, and it should be seen as a positive step. Mindset plays an essential role in the adoption of the new things that arise in our environment. 
  • Legal and professional ethics need to be kept in mind. Take the situation wherein Juhi Chawla a film actress filed a case before Delhi High Court. When the proceedings were going on, a voice was heard where a man was singing the songs of Juhi Chawla’s film in the virtual proceedings. The integrity of the court should not be compromised and should be dealt with diligence. 

The problem of pendency of cases to be dealt with in virtual courts

The e-committee of the honourable Supreme Court has been functioning since the year 2005. Though the panel of e-committee acknowledged the shortcomings/challenges of virtual courts, it also said that these courts could bring in considerable advancement over the existing system. It has made two excellent recommendations, but to my dismay, those are not being followed. 

  • The first recommendation by the e-committee was to adopt the detailed standard operating procedures of filing documents like petitions, affidavits, etc., electronically. It was recommended because it would eliminate the need for lawyers and litigants to travel to the courts. As a result, it would save a lot of travel costs and space in the courts. It would prove to be beneficial to the environment because on average India requires 12,500 tonnes of paper, equal to the destruction of 3 lakh trees for its court work.
  • The second recommendation made was to adopt the new normal of virtual hearings for a long time. Even if this pandemic goes, still virtual hearings should be continued for the faster disposal of services. Virtual courts have been there in the past cases as well but as an exception. The COVID-19 surge led to the need to conduct virtual hearings. 

Between 2006 to 2017, there have been on average 4.7 lakhs pending cases a year. In the year 2020, there were 51 lakh pending cases. Now, If we go by this data, we can imagine over five crore cases by the end of the year 2022. 

It is suggested that the courts should at least start with the virtual hearings and start disposing of cases. Even after the COVID-19 pandemic, virtual courts can undoubtedly reduce the backlog of cases and prove beneficial to both the public and the Indian judiciary. 

But it all depends upon the litigators and lawyers to adapt to this new normal. They have to understand that this will prove to be beneficial in the long run. A lot of time will be saved, and there won’t be overcrowding in the courts. Cases will be disposed of at a faster pace, and justice won’t get halted. And probably the phrase used in the beginning, “Justice delayed is Justice Denied,” will somewhere diminish. 

The Indian judiciary should take into consideration these recommendations positively.

Legal and constitutional principles embodied in virtual courts

Our Indian Constitution embodies some legal and constitutional principles in correspondence with the virtual courts in real and virtual aspects. The codes are defined here as follows: 

  • Article 21 of the Indian Constitution enshrines the fact that the purpose of the judiciary is not only to deliver justice but fundamentally to reduce the longevity of the proceedings of cases. Virtual courts must be seen as a means to achieve the milestone of reducing pending cases and not merely as adopting technological and advanced digitalization in pandemic times. 
  • Article 14 of the Indian Constitution calls for equality and non-discrimination in the territory of India. Technology can accelerate the process of accessing justice while sitting in any corner of the world. Time and costs are reduced, and the litigants don’t have to bear high fees to get justice. 
  • The Indian Constitution calls for a free and fair judicial process. Since documents will be submitted electronically, no tampering of records could take place. 
  • While adopting virtual courts, the principle of natural justice must be adhered to in the judicial hearing. The focus of natural justice says that every party has the right to be heard. 

These are some of the principles that need to be looked upon while discussing the virtual courts’ related aspects. 

Concept of e-courts project

The e-committee of the Honorable Supreme Court submitted the ‘National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary-2005. Based on this plan, the e-courts project was launched. The primary purpose behind this is to bring technological advancements in the field of working courts. It seeks to provide the designated services to the lawyers, litigants, and judiciary. These are being implemented as a part of the National e-Governance Plan. The Ministry of Law and Justice funds the project. 

Recently, while considering the COVID-19 pandemic, the Honorable Supreme Court of India exercised its power under Article 142 and directed all the country’s courts to use video conferencing for judicial proceedings. 

The e-courts project was divided into two phases: 

Phase-I

The phase-I started in the year 2007. This phase was executed between 2007 and 2015. Its main aim was to bring the technological revolution to the judiciary. Courts were provided with facilities like computers, working internet connection via LAN (Local Area Network), and required hardware and software essential for the working of the court system. 

Also, the judges were provided laptops with a proper internet connection, digital signatures were introduced, and the district court websites were made functional. It helped citizens in checking the status of their cases online. 

Phase-2

The phase-2 was enacted with the help and coordination of the e-committee, National Informatics Center (NIC), the Department of Justice, and the Ministry of Finance. The computerization system was incorporated in the offices of the Delhi State Legal Services Authority, National Judicial Academy, State Judicial Academy, and Taluka Legal Services Committee. This phase was executed between the years 2015 and 2020. 

Case Information Software has also been created as a common platform for uploading court data, including past cases. The facility of video conferencing in courts and jails are on their final stage. 

There are various mobile applications made available for both the district and taluka courts and judicial officers. Mobile applications include eCourt services for district and Taluka courts and JustIS for judicial officers. With the implementation of phase 2, citizens can file their cases while sitting at home, checking real-time case status from websites like e-Filing. They can also make court fee payments via the ePay facility. The end of phase-2 seeks to discontinue manual registers and introduce the cloud-based system for court-related work. 

Objectives of the e-Courts projects

The following are the objectives of the e-Courts project:

  • It aims to provide time-bound citizen-centric services. 
  • It seeks to develop, install, and implement decision support systems in the courts. 
  • It aims to provide transparency to the stakeholders. 
  • It also seeks to enhance judicial productivity and make the justice delivery system more accessible, predictable, transparent, and reliable. 

Also, it is pertinent to note that e-Courts are not virtual courts. Therefore, we need to understand the meaning of e-Courts, their advantages, and their challenges. We will also look at how e-Courts are different from virtual courts.

What are e-Courts

E-Courts are electronic courts where all the law matters are adjudicated in the presence of a qualified judge. They are undoubtedly different from the computerized court. In these courts, the litigants can file their complaints electronically, view their case status online, pay the fee and fines online. 

What are the advantages of e-Court

Following are the advantages of the e-Courts:

  • E-Courts are accessible and affordable to all sections of society. They ensure that justice is served to the community. 
  • The litigation process moves at a faster rate. 
  • E-Court experience is personalized and private. It is in opposition to the theatrics that involves mainly a public-speech-based system. 
  • With the help of e-Courts, the judiciary system in India can overcome the challenges, including long-pending cases. It can make the justice delivery mechanism transparent and cost-efficient. 
  • The E-Court system provides flexibility, and data can be shared among various departments easily since everything will be integrated under one system. 

Challenges faced by the e-Courts system

Following are the challenges faced by the e-Courts: 

  • Non-competent and non-equipped paralegal staff in terms of maintaining e-court records. 
  • With the digital economy moving at a faster rate, cyber security is becoming a huge concern. 
  • Sometimes, litigators are seen having a lack of confidence in the e-Court system. 
  • The process of filing complaints online is riddled with endless complications. Also, few sections of people lack access and knowledge to work in the e-filing process; therefore, it poses a problem. 
  • These can prove to be cost-extensive as setting up e-courts require adequate funds and deployment of new-age technology.
  • Electricity connection and lack of sufficient infrastructure is another concern that will remain the biggest challenge in the e-courts project. Though it can be implemented in cities, most talukas and villages will face internet issues. 

How are e-Courts different from virtual courts

Virtual courts are aimed at eliminating the presence of litigants or lawyers in the court of law. The adjudication takes place online. The objection and other documents are filed electronically, submissions are heard through video conferencing or teleconferencing, and witnesses give testimony virtually through the platform. It is upon them to either attend the case while sitting in the courtroom or from any place. 

On the other hand, e-Courts are online courts. These are an advanced version of virtual courts. The most fundamental difference between the two is that in virtual courts hearings are synchronous, i.e., parties have to present virtually at the time of the hearing. In e-courts, hearings are asynchronous, i.e., parties don’t have to be present simultaneously. E-courts have been working since 2005 in India. But the concept of virtual courts arrived with the pandemic when social distancing had to be maintained, and the justice delivery system could not be put on a stay. 

Hardships faced by advocates

Advocates are one of those who are most affected by the pandemic. While the courts go online, some of them face an issue in not having proper equipment like laptops, computers, and high-speed internet connectivity usually required in the virtual court setup. 

Some of them are not tech-savvy, which worsens the situation more and puts them at a disadvantaged situation compared to the advocates who have sound knowledge of using tech. These problems affect the employment of these advocates and cause stress. Due to the lack of technology and equipment, how can the advocates participate in the justice system?

They are not given proper training; they have little or no access to primary digital media, and the advocates can ensure justice to their clients if they are themselves at a disadvantage. Why should justice and people suffer between the digital pendulum? 

Conclusion

The Indian Constitution embodies the principle concept of access to justice in the rule of law. It cannot be denied to the general public, and justice should be accessible equally to all sections of society. Virtual courts are the way forward to survive the pandemic situation and get ourselves ready for the future. 

After having all the arguments in favour and against virtual courts, it would not be wrong to say that opportunities outweigh the challenges if we take all the necessary steps to make our virtual court system a better service. The piling up of files, travel costs borne by the litigants and lawyers can be reduced and it can usher in the fastest justice delivery system. 

Proper training can overcome the difficulties faced by lawyers. Everyone has to adapt to this new normal of going digital. So, how can we overcome the challenges in the digitalised world? We can hold ourselves together to overcome the challenges. Technology only shows direction and support but the ultimate step lies in our hands. The situation is similar to that of a small kid who struggles to walk on the floor for the first time, but he has to walk overcoming the struggles. 

References


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