The article has been written by Garima Gunjan, from ILS Law College, Pune. The article talks about how virtual civil trials take place, a few civil cases whose judgements were delivered recently via virtual mode, challenges faced during virtual trials and their remedies.
Table of Contents
Introduction
COVID 19 pandemic has forced the world to adopt the virtual mode of work. The judiciary and civil trial courts are no exceptions. As the pandemic struck in 2020, the courts across the country remained closed for an indefinite period. Due to this, they had to witness cases being piled up and common people saw more delays in getting their cases processed.
Owing to the situation caused due to the pandemic, Indian courts have managed to hold virtual civil trials to handle cases. It has managed to highlight that some of the virtual civil proceedings can be successfully conducted online. With 30 million pending cases in the country, virtual trials are the best way to sort them quickly. Apart from that, the judiciary is also exploring other factors such as identifying kinds of cases that can be tried virtually in order to remove the burden from the courts.
The virtual mode of court system : an insight
In April 2020, in its order, the Supreme Court (SC) invoked Article 142 of the Constitution that provided legal sanction to the virtual courts where trial shall take place via video-conferencing. Under this order, all the High Courts (HC) were also covered where they were asked to customize their needs by adopting technology. The district courts must adopt the video- conferencing (VC) method to solve cases as per their respective states and as prescribed by their respective HCs. This step has made the judiciary more advanced.
In October 2020, the Parliamentary Standing Committee classified under the Department of Personnel, Public Grievances and Law and Justice presented its 103rd report based on the working of virtual courts. The report is based on the PSC’s interactions with various stakeholders of the Indian judiciary system such as the Bar Council of India (BCI) Chairman, Department of Legal Affairs and Department of Justice secretaries, and other senior legal professionals holding prominent positions.
According to this report, there exists a distinction between online courts and virtual courts even though these terms are used to denote ‘how virtual courts work.’ In virtual courts, advocates are allowed to file plaints and other necessary documents like written submission and vakalatnama, fees paid, evidence submission, payment of fees via an electronic medium, judges hear arguments via video-conferencing (VC) and witnesses also deliver their testimony similarly. Finally, the case judgement is uploaded on the court site.
On the other hand, in online courts, the hearings are asynchronous as it does not require the simultaneous presence of judges, advocates, witnesses during the hearing. Evidence can be presented before judges even if the litigant is not present. Due to such practice, online courts are often considered an advanced form of the judiciary.
Virtual trials have made the judiciary more accessible for common citizens, judgement in many cases was delivered early owing to the comfort that virtual hearing provides.
Virtual civil trials : expectation vis a vis reality
Before COVID struck the country, trials via VC were held to conduct matters of remand in order to prevent prisoners’ movement between jails and courts. This facility was made operational in 3240 courts corresponding to 1272 prisons. Apart from that, the Punjab and Haryana HC were instrumental in launching its first virtual court in Faridabad so that cases of traffic challan matters across the state could be sorted easily.
In virtual civil trials, more focus is laid on facts instead of emotions or the way it is being conveyed by the arguing counsel. Due to such a situation, the counsel fails to strike a chord with the witnesses. They may also find it difficult to direct anger at the defendants. When a civil trial takes place, the trial lawyer makes an observation of facial observation and body language of the opposing lawyer or the witness which decides his/her next step. However, during virtual trials, the trial lawyer may fail to do so which may affect their overall performance and even the outcome of the case.
In such a trial, the questionnaires are sent electronically to both sides well in advance. Due to this step, one side gets a chance to analyze the other side’s response and prepare their arguments accordingly. As the parties argue from their homes in a relaxed environment, virtual trial makes their responses more comfortable.
Before the virtual civil trial is about to begin, the court first notifies the judges and respective counsels & parties regarding the same. Ideally, the court clerk is in charge of sending such notifications. In order to participate, the participants need to have a stable internet connection (although it is advised to have a backup device as well). They can participate in the VC via different apps such as Cisco WebX, Zoom, Microsoft Teams, and even Skype. However, the most preferred app has been Zoom in numerous countries. Few HCs such as the Gujarat HC have even started live-streaming the process of the virtual trial of different cases on YouTube.
The rule for participating in virtual civil trials is almost similar to the rules that are enforced in actual courts. All the participants are to be dressed accordingly, and they should join the waiting area of Zoom on time. It is the duty of the law clerk to admit participants. One can’t make arguments or participate while driving. If a participant fails to appear in the trial virtually, it is considered equivalent to failure while appearing in person.
When a civil trial takes place virtually, engaged lawyers get more time to get engaged in the case and understand it deeply. As compared to actual court trials, the lawyers can view and access the presented evidence more clearly. In virtual civil trials, examining witnesses can be a tough nut to crack. While doing cross-examination virtually, the lawyers need to come up with creative tricks by utilizing their voices and facial expression. There should be right lighting, camera angle should be well focused and background should be clear while a virtual trial is going on so that testimony of the witness can be perceived as desired.
Insight to few virtual civil trials
During the pandemic, our apex court along with the respective HCs delivered many judgements successfully via virtual trials. A few of them are as follows:
Dr. A. Suresh Kumar v. Amit Agarwal (Civil Appeal No. 988 of 2021)
A claim for medical negligence was filed against the appellants by the respondents, to which the appellants replied with a delay of seven days. Hence, it was rejected by the National Consumer Disputes Redressal Commission (NCDRC). In para 63 of the said judgement, it was mentioned that judgement shall operate prospectively. The SC considered this matter related to the condonation of delay of seven days which NCDRC had rejected. The Judges stated that delay shall be condoned and NCDRC shall accept the written judgement if the appellant pays Rs 25,000 to the respondents within 15 days of this judgement.
Surendran v. Sub-Inspector of Police
The Appellant filed this appeal after the HC in its earlier judgement dismissed the criminal revision that the appellant had filed challenging his conviction and sentence under Section 279, 337, and 338 of the Indian Penal Code (IPC). The appellant was a bus driver who had injured a car driver while driving his bus. The Judicial Magistrate of First Class had awarded a six months sentence and Rs 500 fine to the Appellant. The Sessions Judge dismissed the appeal filed by the Appellant. The HC also dismissed the criminal revision petition filed before it. In their judgment, the SC judges observed that the appellant was out on bail during this trial and upheld his conviction. As 26 years had passed since this incident, the Judges substituted six months imprisonment into the fine of Rs 2000 which the appellant had to submit within a month in the trial court.
Rahul Sharma & Anr. v. National Insurance Company Ltd. (NIC) & Ors.
The Appellant’s parents died in an accident where the vehicle was insured by NIC (Respondent 1). The appellant filed a claim before Motor Accidents Claim Tribunal (MACT) under Section 140 and 166 of Motor Vehicles Act, 1988 to gain compensation for his parents’ death. As NIC was the vehicle’s insurer, it had to pay a compensation of Rs 41 lakh to the appellant. The NIC filed an appeal against this MACT award in Delhi HC. The HC held the deceased ineligible for this grant as she was found to be self-employed. Then, the appellant filed an appeal in the SC where the judges awarded compensation of Rs 38 lakh to the appellant after modifying the extent of deduction towards personal and living expenses.
Indian Highways Management Company Limited v. Mukesh Associates
The Petitioner filed this petition under Section 11(6) of Arbitration and Conciliation Act, 1996 requesting for the appointment of the sole arbitrator so that disputes that arose between parties can be adjudicated. The Respondent sent a notice invoking arbitration and claimed that the petitioner had failed to pay Rs 2 crores and sought recovery of this amount along with interest. The Respondent didn’t reply to the earlier notice. The Petitioner sent another notice and invoked Micro, Small and Medium Enterprises Development Act (MSMED), 2006 provisions. In its judgement, the Judges stated that “it could not be said that the mandate of the conciliator or arbitral tribunal under the provisions of the MSMED Act, would stand automatically terminated on expiry of a period of 90 days from the date of the reference in terms of Section 18(5) of the MSMED Act.” This provision didn’t provide for any consequences of failure in order to make a decision.
Challenges faced during virtual civil trials
Few challenges that virtual civil trial courts face while functioning is as follows:
Difficulty in accessing the internet
In Rajya Sabha’s report on the functioning of virtual courts, a large section of judicial professionals have admitted to facing internet problems and required infrastructure such as personal computers to participate in virtual hearing sessions. Due to this, a section of people is finding it difficult to access the process of virtual hearing. The lower courts have been the worst hit owing to this issue. As it is the first place to initiate the process of justice, hearings are getting barred owing to network issues. To solve this issue, it has been proposed that the National Broadband Mission should be implemented by the Ministry of Communications in all the courts across the country.
Lack of comfort during the virtual hearing process
Even if the courts have a hearing process going on owing to good internet connectivity, all the judicial officials involved in this process must be well versed with software tools such as Zoom and must be able to use it comfortably. Participants from rural and small-town areas particularly face this problem as compared to big law firms. To deal with this issue, 25 HCs across the country have implemented training programs by appointing 461 trainers who are further training officials from district courts. The BCI is also thinking of introducing computer course subjects in the syllabus of upcoming batches of the three and five-year programs.
Privacy and data security concerns
Virtual courts are always worried about the intrusion of third parties or theft of crucial data while the process is going on. In India, virtual court proceedings take place via third-party software. Few such software were rejected after they were found to be unsafe. It has been recommended that the Ministry of Law along with the Ministry of Electronics and Information Technology should come up with new software that can be used in India’s judicial office for its proceedings. Apart from that, the Ministry should also consider the usage of blockchain technology so that transaction of data takes place safely.
Conclusion
Even if the current situation gets over soon, the virtual civil trials are here to stay as they save time and cost. Even though lawyers, judges, witnesses, and other officials involved face multiple issues such as unstable internet connectivity, fear of data theft, and loss of comfort, virtual trial courts have become more accessible as trials take place online and time and money are saved. The Ministry of Law along with BCI and other involved bodies should implement measures so that virtual civil trials take place successfully so that the burden on our judicial institutions goes down.
References
- https://www.law360.com/articles/1379757/demystifying-the-virtual-civil-jury-trial-experience
- https://www.theleaflet.in/challenges-in-setting-up-virtual-and-online-courts-in-india/
- https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/18/125/103_2020_9_16.pdf
- https://www.transcriptionoutsourcing.net/blog/virtual-court-hearings/
- https://www.latestlaws.com/latest-caselaw/2021/may/2021-latest-caselaw-243-sc/
- https://www.latestlaws.com/latest-caselaw/2021/june/2021-latest-caselaw-262-sc/
- https://www.latestlaws.com/latest-caselaw/2021/july/2021-latest-caselaw-268-sc/
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