This article is written by Nishtha Garhwal, of Alliance School of Law, Bangalore. 2020 has been a year that brought a big change to how the Indian Judiciary functions and the introduction of virtual courts is a major reform. The article discusses the pros and cons of virtual courts.
Although the COVID-19 pandemic created a situation of panic and chaos and caused huge harm to the economy of India, it provided an opportunity for the Indian Judicial system to reshape and develop itself. The technology-oriented methods were adopted by the contemporary litigation and court system. Due to the covid crisis and the social distancing norms that were imposed in the country, for the first time in the history of the legal profession, the Courts in India are hearing the court proceedings via a virtual model.
The overnight digitization in the field of law has now made it possible to file cases through the e-filing system, thus, radically transforming the process of filing for the lawyers as they can file matters from any place as per their convenience and the Supreme Court of India is encouraging the utilization of this system.
E-Court Mission Mode Project
Based on the National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary, 2005, the conceptualization of the e-courts project happened. On 7 August 2013, the e-Courts National portal, that is, ecourts.gov.in was launched. The information about case status, case filed, case registered and the daily case list can be acquired through this portal and the Case Information System (CIS) Software is utilized by the portal for this purpose.
During the period between 2007 to 2015, the implementation of the first phase of the E-Court Mission project happened and in 2015, the launching of its second phase happened. The monitoring and funding of this project are done by the National Informatics Centre (NIC).
An important thing that was observed and noted was that the project has a slow rate of progressing and if the proper infrastructure is not developed, it will be very difficult to conduct virtual hearings of cases.
What are virtual courts
The plaint and other related documents, for example, vakalatnama, are filed in a virtual court including the written submission. In a virtual Court, video conferencing and teleconferencing is used to hear all the arguments of the Court proceedings. The submission of the evidence happens in digital format and the judgements on the cases are given by the judges who may be either sitting in the physical Courtroom or at some other location through online mode.
There are various things that physical courts lack. However, it is not so in the case of virtual courts. In a physical court, there is a need for all the witnesses and people to be present physically but keeping in mind the current social distancing norms, this would not be possible. Thus, virtual courts allow all the witnesses and people to not be present physically and permit remote working. At the same time, they also help in reducing physical movements. The online platform is utilised to conduct all the procedures of a case through the application of technology.
Therefore, all the processes of documentation and all the mechanisms of procedures and evidence can now be done online from the beginning till the end through the virtual courts and these courts helped in the legal system’s computerisation and digitisation.
Difference between Virtual Courts and Online Courts
Although there is only a slight difference between virtual courts and online Courts, online Courts are a bit more advanced than virtual Courts. In virtual courts, the process of hearing is synchronous, that is, there is a need for all the judges, advocates, witnesses and litigants to be available at the time the process of hearing takes place. This is very crucial for the progress of the case.
On the other hand, the hearing process in online courts involves an asynchronous interaction form, that is, there is no need for the judges, advocates, witnesses and litigants to be present simultaneously at the time of the hearing. Thus, the judges are presented with all the evidence and arguments without the presence of parties together at the same time.
In addition to this, there is an online dispute resolution process, that is, disputes are settled between the parties through the process of alternative dispute resolution mechanism through the online platform.
Definition of court : a matter of debate
The central question of whether the Court is a place or is it a service became a matter of debate. If we consider the Code of Civil Procedure, 1908 and Code of Criminal Procedure, 1973, none of them provides a clear definition of the term ‘Court’. However, the term ‘Court’ is a justice administering place if we take the legal glossary of the legislative department under the Ministry of Law and Justice into consideration.
The proponents of virtual courts argue that the Court is not a place but a service. As per the definition of ‘Court’ mentioned under Section 3 of the Indian Evidence Act, 1872, it consists of all judges, magistrates and all persons except arbitrators who have the legal authority to collect evidence. The term ‘Court of Justice’ has been defined as a judge who has the power which is granted by the law to act alone or it has been defined as a body of judges empowered to act as a body provided such a judge or a body of judges is acting under judicial capacity.
The term ‘Court’ has been defined as a government authorised entity that is empowered to settle legal disputes by the US Federal Judiciary. A body that is constituted of one or more judges who sit and make judgements in matters of disputes or a place where the administration of justice happens judicially is defined as a ‘Court’ by the Black’s Law dictionary.
The way the term ‘Court’ is defined at different places varies to a great extent. However, there are two elements which are present in common at all the places:
- A court is a government entity that consists of one or more judges.
- The Court is empowered and authorised to perform the function of the administration of justice.
Therefore, in the light of the above discussion, it is now clear that the Court is not a place but it is a service that is provided to the citizens of the country which they can approach in case any of their rights are infringed.
In the case of Anita Kushwaha v. Pushap Sudan (2016), the Court said that access to justice is a constitutional right. Thus, the idea of Virtual Courts was adopted by the Indian Judiciary to make sure that no human right is infringed.
Advantages and benefits of virtual courts and litigation
The Indian judiciary was forced by the COVID-19 pandemic to adopt technology-oriented methods in order to continue its function of administering justice. The virtual transformation of the Indian legal system will make it more effective and advanced. Adoption of new techniques in order to improve and speed up the process of providing justice to the victims has always been undertaken by the Supreme Court of India and amidst the pandemic also, the Apex Court had taken a major decision of using the online platform and hearing the pending cases through video conferencing. On 26 November 2019, an application called ‘Supreme Court Vidhik Annuvaad Software’ was launched by the President. This software can translate the English Judicial records into nine vernacular languages and vice-versa. The physical courtrooms have been transformed into virtual courts and this has proved to be beneficial in a number of ways which are as follows:
- A very small section of the society have access to the conventional physical Courts and even if they have, it is accessible at the disproportionate expense as well as effort. However, with Virtual Courts, such issues can be resolved.
- Virtual Courts are affordable and citizen-friendly. They help in saving the costs of travelling for litigants and help in saving the substantial costs incurred by the Courts as well. In addition to this, greater access to justice is offered by these courts.
- Around 30 million cases have been pending in the different Courts of the country. With the opening of the virtual courts, some of these pending cases could be transferred to these courts, thus, reducing the burden of pending cases on the Indian Judicial system.
- The concept of ‘Distributive Justice’ has been discussed in the case of G.B Pant University of Agriculture and Technology v. State of Uttar Pradesh (2000) in reference to the Constitution of India where it was propounded by the Court that all the material and economic resources in the country do not belong to a particular section of the society and needs to be distributed equally among all the people of India. The virtual Courts help in achieving the notion of distributive justice by ensuring that the service of Courts reaches everyone and is affordable by all. It must be noted that digital justice is more speedy and less expensive. Therefore, people who reside in remote and far off places also can participate in the proceedings of the Court without bearing any expenses which were incurred for being present in the Courtroom physically.
- The virtual Courts enable lawyers to fight a large number of cases in a day and they can argue in any court which may be present in any part of the country.
- The testimony by the witnesses can now be provided from a more secure environment with the establishment of the virtual Courts. In addition to this, the hearings of the cases that take place virtually are less traumatic for children, women and victims than the physical courtroom hearings.
- Appeals and final hearings are certain categories of cases that do not require the parties’ or counsels’ physical presence and thus, virtual hearings suffice those purposes.
- Huge expenses are incurred in the establishment of a large number of courts and tribunals which can be reduced with the opening up of virtual courts. The costs of litigation can also be reduced with this as the physical presence in the court is not required.
- There are various appellate tribunals in the country like Telecom Disputes Settlement and Appellate Tribunal (TDSAT), Intellectual Property Appellate Board (IPAB), National Company Law Appellate Tribunal (NCLAT) in which there is no need for the parties and advocates to have personal appearances and the virtual Courts can be permanently extended to these tribunals.
- Judgements can be delivered much faster by the virtual Courts and that too with fewer resources. The commute time to the courts is also reduced by these Courts along with the waiting time as there is disciplined time management by the allotment of time slots for the cases.
- Virtual hearing is the easy access to justice and is litigant friendly.
- If the proper procedure of virtual court hearings is established, it will help in eliminating the costs incurred in the construction of Court infrastructure, Court security system and the expenses of the staff.
- If litigants are not required to be present physically, it will help in saving time as well as expenses incurred while travelling. The extra burden on the litigant’s shoulder can be reduced through the virtual courts.
- Virtual courts will make it possible for the judges to personally hear each and every case. In addition to this, the transparency of the Judiciary will be enhanced and it will become accountable to the parties. Thus, the administration of Justice will be made more easy and efficient.
- As the data of the court proceedings would be stored in digital applications, it would be available in one place and information sharing would become easier.
- Conventionally, the public does not have access to the tribunals on business days. However, many litigants who need access to courts work on business days. This issue can be resolved by the virtual courts as it allows online access to electronic filing. In addition to this, virtual courts enable the litigants to participate in the video conferencing trials. Thus, courts could be accessed by the litigants from their homes or offices.
- The courts have a huge backlog of cases and the delay in Justice reduces the confidence and faith of the citizens in the Indian Judiciary. The virtual courts give trust in the court proceedings and the cases could be adjusted in a time-bound manner.
Disadvantages and challenges to virtual courts and litigation
Although there are several benefits provided by the virtual Courts, the success of Court proceedings that happens through video conferencing is based on the assumption that all the people of the country have equal access to fast internet and a properly functioning device. In addition to this, it rests on the assumption that all the Courts are enabled with internet facilities and are technologically well oriented. Some challenges are faced by the virtual Court system, listed as follows:
- Litigants and advocates who reside in remote and rural regions lack the basic infrastructure facilities and do not have access to an internet connection with high speed and thus, it becomes difficult for them to participate in the virtual hearing of the cases. A vast majority of the Indian population suffer from this issue which makes access to justice for them unaffordable as well as inaccessible.
- The virtual courts create a digital divide that has three dimensions. The first is the access divide, that is, the access of different people to infrastructure and equipment varies. The second is the connectivity divide, that is, broadband connectivity’s access across the country varies. The third is the skill divide, that is, everyone does not have the adequate knowledge and skill to utilise the digital mode.
- The technical glitches and poor digital connectivity pose a major challenge to the hearings that are conducted on the virtual mode especially if they happen during the peak working hours at a time when many people log into the video conferencing system.
- In the case of virtual hearings, the applicability and authenticity of the identity of the witnesses and evidence that are produced before the Court are questionable. The open trials better serve this purpose.
- Certain applications and software are used for storing the data of the court proceedings and these are not very secure. Thus, if any confidential data is stored in such applications, it could be corrupted and erased through a single virus attack in the computer system. Thus, virtual courts have the problem of lack of adequate data privacy and can be subjected to cyber crimes like hacking.
- The process of e-filing of litigations is very complex.
- It is very expensive to transform the entire system of the Judiciary in India into a virtual model. In a country like India where there are 25 High Courts and more than 500 District Courts, huge costs and time will be incurred in digitizing every subject matter of the legal system and in implementing advanced technology.
- The litigants who approach the Court are not only from the rich or middle classes but they also come from the poor class who may not have proper access to internet connection and would not possess the skill required to use the virtual platforms and thus, the virtual court hearings may be useless for them.
Open Court Principle
Virtual courts are a concern for some experts who consider that such courts can become a threat to the constitutionality of Court Proceedings and the importance of Rule of law, a part of the basic structure of the constitution can be undermined by these courts. The hearings that are conducted virtually are not in line with the spirit of the Open Court Principle. Article 145 (4) of the Constitution of India, Section 327 of the Criminal Procedure Court, 1973, and Section 153 B of the Civil Procedure Code, 1908 envelops the concept of Open Court and the hearings conducted on virtual mode do not go with the principle of Open Court.
A report was submitted by the Parliamentary Standing Committee on Personnel Public Grievances, Law and Justice and the panel was chaired by the Senior BJP leader Bhupender Yadav. This report was submitted to the Rajya Sabha Chairman M. Venkaiah Naidu on 11 September 2020 and it was regarding the continuation of virtual hearings even after the end of the pandemic. The report also suggested some recommendations related to this.
A series of meetings were conducted by the committee and discussions were held on the issues concerning the functioning of virtual Courts. These meetings were attended by secretaries of the Department of Justice and the Department of Legal Affairs, Secretary-General of the Supreme Court, the representatives of the Bar Council of India and some other people.
The panel reached a conclusion that although there are shortcomings in the virtual hearing of Court proceedings, it is more advanced than the conventional system existing in India and therefore, the virtual Courts are worth embracing.
The importance of the open Court principle has been pointed out by the Apex Court on a number of occasions and is of the view that the virtual live streaming of the court proceedings is an extension of the open Court principle. Further, it was observed by the Supreme Court that openness and transparency are enhanced by the virtual Courts and thus, it is very helpful in reinforcing the belief of the public in the Indian Judiciary. If we look at the world, many countries record their Court proceedings in one or the other form.
The observation made by the Supreme Court that the live streaming of Court proceedings enhance transparency and openness especially for cases that have constitutional and national importance and have an impact on the public at large was agreed by the Committee. The Committee also noted that the open Court and open justice principle should be considered by the Indian Judiciary for broadcasting the hearing of certain specific cases on the virtual platform
Data Security issues
In the crisis of the pandemic, all the lawyers, judges and clients are in the search of a proper balance between safe staging and hearing of the cases. In order to prevent the movement of prisoners in between the Court and prison, virtual courts were established. Virtual Courts raise concerns regarding the confidentiality of the discussions that happen during the court proceedings. There are concerns that it will compromise the privacy of data. For instance, the American courts often have to deal with a third party intrusion while conducting court proceedings via Zoom Call. Zoom is a third party software application. In India, to conduct court proceedings, third party software applications like Vidyo, Cisco and Jitsi are being utilised. The third-party software can easily be hacked and manipulated and thus, they are considered as a major risk to the security by the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice.
At the same time, a recommendation to consider and address the issues regarding data security and privacy while developing a new platform for the Indian system of Judiciary has been made by the Committee to the Ministry of Law and Justice, and the Ministry of Electronics and Information Technology. It was also recommended that blockchain technology should be utilised for improving the reliability of evidence and the security of transactions. For improving the security of the data of the Court proceedings, proper standardised systems of authentication and procedural safeguards must be underpinned in the online systems.
The incorporation of technology must happen in such a way that no compromise happens in the fundamental legal principles such as fairness, impartiality and participatory justice. The vital role of harnessing the unlimited potential of technology for connecting stakeholders in the system of delivering justice can be performed by the legal technology startups involved in innovation. These startups can also fund affordable and efficient solutions for the purpose of data security.
Recommendations for effective working of virtual courts
Lawyers, especially in the small centres, do not have the basic knowledge of Information technology. Delhi Bar Council shared this opinion on behalf of those lawyers who were not able to utilise the video conferencing service due to a lack of technical knowledge. In response to a letter by the Chief Justice of India, Indian Bar Council stated the same thing. Many challenges are there before that government while setting virtual courts, however, if certain remedial measures are followed, these courts could be really helpful and make access to justice easier for people. There is a good scope for virtual courts in the near future and if these challenges are properly dealt with, the justice delivering system would become really effective. While setting up virtual courts, some recommendations can be followed for its smooth functioning.
- The formation of proper legislation is required for dealing with the issues related to virtual courts such as data privacy and accountability.
- It is advised that the proceedings of all the cases must not be conducted through the online platform and only the cases in which less argumentation is required and are less mechanical in nature should be conducted via the online platforms. Thus, cases must be classified based on their nature and the time required for their disposal.
- The Law colleges or universities and National Judicial Academy must incorporate courses related to technical skills in their curriculum. This would be helpful for future legal professionals as it would enable them to utilise their technical skills in practical life.
- The virtual courts and the litigation system must be built in a user-friendly manner and must be secured from any attack of a virus and cybercrime. If this is not done, then the motive behind establishing virtual courts would remain futile.
The weak quality of the internet access, power cuts, obsolete and poor audio systems, failure in the participation of multiple parties and failure to create links at the agreed time affects interpreters and vulnerable witnesses. Although the access divide is created through the virtual courts, the E-Seva Kendras can be useful in bridging this divide and therefore, it is expected for all the court complexes across the country to establish such facilitation centres as early as possible. As far as the connectivity divide is concerned, to achieve the target of universal access to the broadband connection, it is recommended for the authorities to ensure that the National Broadband Mission is implemented from time to time. Thus, such implementation will be helpful for fully harnessing the services provided by the indigenous communication satellites.
In addition to this, the concern of the skill divide can be tackled through the conduction of training and awareness programmes in all courts in India. This would be helpful to acquaint the advocates with the technology and ensure that they have the required skills to deal with the digital platform. It is advised that the specialised legal knowledge is utilised by the advocates in addition to the utilisation of technological skills and they need to update themselves from time to time.
The quality of the technology in the courtroom needs to be improved and it is crucial for the court proceeding to be conducted on the virtual platform. It would be useful if a study is commissioned to study the design of the courtroom and customised software to facilitate the development of court hearings that suit the requirements of the Indian judiciary.
Although the pandemic had many adverse effects, the crisis provided an opportunity for the Indian Judiciary to transform itself. The COVID 19 pandemic has made us realise the need to reshape the court system and system of proceedings in India. The technology must be incorporated into the Indian legal system. The process of Arbitration has already made use of remote working and therefore since it is tried and tested, it is easy for the Courts in India to adopt this.
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