This article is written by Abhishek Yadav, a BA LL.B student of Nmims Kirit P Mehta School of Law, Mumbai.
“You never change things by fighting the existing reality. To change something, build a new model that makes the existing model obsolete.”
— Buckminster Fuller
Unprecedented times called for an unprecedented solution. The Covid-19 pandemic brought a drastic change in various sections of society, including the Legal fraternity like never before, which not only affected the court proceedings, but also the Corporates all over the world. The courts were closed in India from 24th March when the first phase of the national lockdown for 21 days was imposed as there was a major need to control the situation before it turned into a disaster. This disruption due to Covid-19 was a major cause of concern to the Judicial system. As, it was not possible to suspend the judicial proceedings completely as long as the lockdown would have lasted, so the Supreme Court started taking up urgent matters by way of video conferencing. The Supreme Court also asked all the High Courts to get equipped with the technological requirements and start functioning through the use of video conferencing.
The 3 Judge bench of the Supreme Court Comprising Hon’ble CJ SA Bobde, Dr. DY Chandrachud, and L. Nageswara Rao, JJ in a suo moto case passed an order wherein they laid down guidelines for the functioning of courts through video conferencing. Further, many meetings and discussions were conducted during this period and after receiving many requests by the lawyers to open the courts, as they were facing many challenges, the e-committee in its latest meeting concluded, that the courts would be functioning through video conferencing only, till the situation gets normalized.
The pandemic came with many challenges before the legal fraternity and every effort was made to overcome the difficulties posed by it. Now the main debate will be whether the courts will go back to the same procedures they were following for years or will they adapt to the changes brought by the Covid-19. What seemed impossible just a few years ago due to the lack of infrastructure, was developed in months just because of necessity, as we all know “necessity is the mother of invention”. But in our case, it is not the invention but the adaptation to the technological advancements that should have been implemented years ago if the right measures were taken.
Incorporation of various technologies
The Supreme Court along with the e-committee by putting tremendous amounts of effort is coming up with new developments every day so that the members of the legal fraternity face no difficulty while engaging in the virtual justice delivery system. Some of the recent developments brought by them are mentioned below:
- Recently, the Supreme Court has introduced the system for e-filing to take up fresh matters on board. The process for e-filing was planned in the year 2017, but deliberations surrounding it went in vain after the retirement of the then Chief Justice J.S Khehar. The facility of e-filing will be made available 24*7 and will not be restricted to the working hours of the court. The defects in the filed petitions can also be rectified through the Online mode. This will ease the working of the lawyers, litigants, registry staff, and law clerks.
- The Supreme Court and some High Courts are working on bringing the digitized form of the pending and disposed cases on the same platform of e-filing, and trying to establish a Standard Operating Procedure for the same for the benefit of all courts.
- The E-committee of the Supreme Court has developed a paperless module for commercial courts at a district level, where trials shall be conducted on a digital platform that will help in speedy disposal of commercial disputes. This project has been planned to be launched in 4 metro cities namely Delhi, Mumbai, Bangalore, and Kolkata in its initial stage.
- The Supreme Court through its E-committee has also updated the E-Sewa Kendra portal which is on a pan India basis for accessing various facilities of the courts. This facility will mainly help the lawyers by providing for the e-filing of petitions by scanning the hardcopies, attaching e-signatures, and generating file numbers for the particular petition. Further, it will also help the litigants in the online purchase of e-stamp papers, e-payments, and will also guide as to which application should be downloaded by the litigants for information relating to their case. The E-Sewa Kendra will also act as a platform for redressal of queries relating to the cause list, whether the matter has been taken on board, or if any judge is on leave and matters relating thereof.
- Smart summon system has also been set up, in which devices will be provided to bailiffs, location of which can be traced when the summon will be pasted or delivered. This will be prime facie the proof of delivery of summons and it will aim at addressing the existing bottlenecks. Recently, the trend of serving summons through WhatsApp was also accepted by courts, this shows that the courts have shown an inclusive approach when it comes to technology.
- Artificial Intelligence is soon going to be introduced which will decide the matters and will reduce the burden of the court regarding the trivial matters of which over millions of cases are pending like traffic challans, petty offenses, summary violations, etc. All the said cases will be dealt through an online process and which will help the judges devote their crucial time for deciding other important offenses. Like for instance in Delhi, the traffic challan violations are decided through an online process that is presided by only 1 judge, which was previously dealt by 20 judges.
- Further, the E-committee of the Supreme Court is planning to bring a single integrated platform centralizing crime and police data. It will be an inter-operable criminal justice system that will provide access to all the records in just a click which will expedite the justice delivery.
Positive implications due to the digital shift
The establishment of virtual courts during the pandemic can be said as a blessing in disguise as there have been many efforts in the past to establish them, but all were in vain due to various reasons. But the pandemic situation gave a thrust to the efforts and helped in establishing the virtual courts which ended up being beneficial for the legal fraternity. The primary advantages of continuing with the virtual system of functioning will provide a speedy, transparent, intelligible, and efficient justice delivery system. With the establishment of virtual courts, a sense of accountability can be brought amongst the judiciary.
One of the many benefits of conducting hearings through video conferencing can also help the witnesses and jail inmates to participate in the hearings from various locations other than the Courtroom. Thereby, reducing the chances of delay in presentment before the court. For instance, the High Court of Kerala is going to launch the Interoperable Bail E-Module which will increase access to justice. It will ensure real-time scrutiny of Bail applications, help in fostering relationships with Jail authorities, and will provide greater accountability of the Public Prosecutors.
Barriers in implementation of the technological advancements
As every coin has two sides, so does the pandemic have its fair share of pros and cons. The scenario post COVID is going to be extremely challenging for all sectors in the economy, especially the legal fraternity. As we all know the Judiciary has tried to set up a platform through which it can hear matters through the virtual medium and to some extent has also implemented it, but still, there are many practical problems connected to it.
Even though the judges tried to cope up with the new technologies that were integrated to provide justice. They were not very comfortable with it, as according to them proper justice can only be provided through the medium of physical courts. The virtual courts also have many shortcomings like evidence cannot be submitted, witnesses cannot be presented, cross-examination cannot be conducted in its true sense. Till now only extremely urgent matters were heard through the video conferencing and this has now added to the already enormous backlog of cases. Some of the judges of various courts are also reluctant to the new technology that has been adopted by the courts as they are not very technically advanced and prefer in-person hearings rather than virtual mediums.
If the virtual courts are continued even after the pandemic is over a majority of lawyers will be facing a lot of difficulties. As all the lawyers are not equipped with the technical advancements that will be required by them to get adapted to the new developments and the major share of cases will be grabbed by the tech-savvy lawyers. Especially the lawyers who belong to not so developed areas or those who are not financially sound will get affected by it the most.
The virtual court system has not been adopted by all the lower courts, judicial and quasi-judicial bodies across the country. The reason behind this is the lack of requisite technological resources and their unwillingness to adapt a change in their way of functioning. Even though some of the courts are already equipped with technological advancement, the legal fraternity members refrain from adopting the technology as they do not have the requisite resources and technical knowledge to access or use them. Therefore, the main obstacle for bringing the paradigm shift will require a huge amount of investment in developing the infrastructure which is user friendly, educating the members of the legal fraternity regarding its use and setting up the bandwidth which is free from technical glitches so that the hearings can be conducted smoothly.
The major difficulty that the pandemic is going to bring is the number of disputes that are going to rise in different sectors of the economy. The courts in India will be burdened with the number of litigations relating to cyber-attacks, security infringement due to increase in the use of technology, workers and employees disputes relating to remuneration, companies getting insolvent, breach of contracts due to non-performance, invocation of force majeure clause, frustration of contract, rent related disputes, and matters relating thereof.
The legal fraternity is going through a transition, with an increase in technological advancements. The proposition of virtual courts comes with new challenges relating to cybersecurity threats which can result in hacking of important data, breach of privacy, threat to confidentiality, chances of identity theft, etc. Although the government has formulated the Cyber Security Strategy but it has merely prescribed guidelines wherein the procedure for implementation is still not provided. Therefore, there is a major need for deployment of a robust security system as the security of the E-courts system is of paramount importance.
As rightly said, “If we do not change from time to time, the time would reject us.”. The pandemic has provided an opportunity for the legal fraternity to adapt to the technology and uplift the way the judicial system functions and also brings transparency and accountability. The dedication of the E-committee to protect the Rule of Law in this pandemic situation is commendable. This willingness of the courts to make a shift from physical to virtual medium suggests a future filled with opportunities for the various members that are a part of the legal fraternity. The disadvantages posed due to the technological up-gradation as mentioned above can be outweighed in the long run if appropriate guidelines, required infrastructure, proper training, knowledge, methods for recording evidence, and cross-examination are adopted by courts.
The views of the researcher are in line with the Supreme Court Judge and e-committee chairman His Lordship Hon’ble Justice D Y Chandrachud, where he in a webinar with students of NALSAR University has said that “virtual courts cannot replace open court hearings as it constitutes the spine of the judicial system but emphasized that pandemic warranted reliance on technology would continue to play a major role in speeding up justice dispensation.”
“What I perceive for the future is a healthy mixture of hearings in open courts and virtual courts. Virtual courts must be encouraged in areas they are suited to. And we must necessarily have an open court hearings which really constitute the spine of our system,“
Even though the measures taken by the e-committee are laudable, it further boils down to one simple question that is, after the lockdown is lifted, how feasible is it for the members of the legal fraternity to function through the virtual medium?
To conclude, this pandemic has compelled our age-old legal judicial system to make a prompt shift towards digitization, which in future can hopefully be continued post the Covid-19 crisis.
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