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Critical Analysis Of The Virtual Courtrooms And The Access To Justice During The Coronavirus Pandemic

Bharti Raina
9 Sep 2020 9:26 AM GMT
Critical Analysis Of The Virtual Courtrooms And The Access To Justice During The Coronavirus Pandemic
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Due to the outbreak of the novel coronavirus and the declaration of lockdown in India from March 2020, people have been forced to stay at home and practice social distancing. In the wake of the situation, the Supreme Court bench on 6th April 2020 issued the guidelines 'In Re: Guidelines for Court Functioning Through Video Conferencing During COVID-19 Pandemic' for reducing the number of people in the court by restricting entry and maintaining social distancing, while ensuring other measures are taken to keep a check on the spread of Covid-19. The District Courts were directed to conduct virtual proceedings while following the guidelines issued by the concerned High Court for the mode through which it shall be conducted. The duty to provide the facilities for the same to the litigants who do not have the resources was also given to the District Courts. The guidelines were issued by invoking an extraordinary jurisdiction as under Article 142 as of the Indian Constitution.

VIRTUAL COURTROOMS DURING COVID-19

Before the outbreak of the pandemic, the court proceedings consisted of the physical presence of the judges, the lawyers, the parties involved in the cases and the court staff at one place. Even the public could access these proceedings by being physically present there in the open courtroom. An open courtroom being an essential part of the democracy in India, strives to protect the Right to access to justice and information as protected under Article 19 and 21 of the Indian Constitution[1]. However, with the increase in the spread of the corona positive cases and the urgent need to maintain social distancing while ensuring that justice is not compromised in any manner, the courts were ordered to switch to virtual mode.

The court proceedings are now being taken up by judges online, while the lawyers make submissions through links and videos from their offices or homes. These links are also made available to the parties involved in the case for their references. It has been reported that the media, representing the public in the virtual courtroom, is given access to most of the proceedings as being held in the virtual courts.

For the virtual proceedings, the relevant statutory provisions, including the Information Technology Act, 2000 and the Indian Evidence Act, 1872 shall be applicable for the recording of evidence by video conference, as the notified by Delhi HC[2].

According to the current statistics, since the order by the Supreme Court and its implementation at various Courts in the country during the lockdown, judgements in around 325 cases have been delivered as on 2nd May 2020. Further, the apex court has disposed of 138 review pleas, 92 writ petitions, 49 special leave petitions (SLPs) and 58 pleas for grant of interim relief[3].

When compared with other countries, the Supreme Court has managed to take up more cases. According to the reports, the UK Supreme Court has decided 18 cases from February 5th till April 29th, 2020, while the US Supreme Court has decided 28 cases between February 24th and April 27th, 2020[4]. Thus, despite facing almost similar circumstances, the Indian Courts have managed to do much more within their limited available resources.

INTERNATIONAL PRACTICES:

  1. General Practices

Technological development has helped the human civilisation in all facets of life. Its importance and aid in the judicial field can also not be disregarded. In India, the initiative to use technology in courts has been made since the 1990s but still, there seems to be a lot of room for improvement in its fruitful incorporation. In countries like the USA and the UK, there has been more developed and extensive use of technology when compared with India.

In the USA, courts use Information Technology to maintain records of the cases, for filing of pleadings and orders electronically, for using video conferencing and building high-tech courtrooms for evidence presentation. However, while the US Supreme Court does not allow video recording, it voice records the oral arguments which are then transcribed and made available to the public on http://www.oyez.org. The US also has a special focus on the Online Dispute Resolution (ODR) mechanisms. Alaska has seen to be using this system for all types of cases, while California uses the ODR in the cases involving bad debt.

In the UK, developed software for computers are made available even at the subordinate court level and these are being used extensively. The Local County Court Management System (LOCCS) which is currently being used in England does the following:

a) initial court records are created for easy registration of a case

b) summons are issued and their service is monitored

c) copies of evidence are stored for reference and record.

d) Cause List is generated and maintained

e) records are updated regularly

f) Court Dairies are maintained regularly

g) Other relevant documents and records are generated automatically

The Proceedings of the Supreme Courts of the UK are also broadcasted live.

In Australia, the established "Cyber Courts" extensively use technology at all stages in the judicial arena, which has helped to reduce delays in cases. The court proceedings in Australia are recorded and posted on the High Court's website. Similarly, the courts in Singapore use Information Technology even outside the courts for an efficient and active justice system. The court premises, as well as jails, are well equipped with video cameras to facilitate video conferencing, cutting the cost and time taken for transportation of accused or witnesses, especially in criminal cases. Additionally, it also provides for the e-filing, negotiation and mediation in cases regarding the Community Justice & Tribunals Division. The online system also assists and help to litigants in case of any query.

Like the UK, the Supreme Court Proceedings in Brazil, Canada and Germany are broadcast live, while in China, these are live-streamed from trial courts up to the Supreme People's Court of China. China implemented the information and communication technologies (ICT) which has been an essential component of such reform in delivering justice and supervising the judiciary. The 'Smart Courts' in China were proposed in 2015 by the Supreme People's Court (SPC). The three super-advanced courts are located in Hangzhou, Beijing and Guangzhou, which provide for conducting full litigation process online, from filing to appeal or other processes[5]. The online system in China essentially includes e-courts and mobile courts. The mobile courts can be downloaded through WeChat. Facilities of filing cases, communicating with the judges directly, uploading evidence on the app can be availed by the parties. Facial recognition technology is also used to authenticate the parties.

The progress and use of technology in each country are commendable. Talking internationally, one of the most essential progress of the e-court proceedings can be marked by the event on the International Forum on Online Courts held in London from 3rd to 4th December 2018. It was conducted by the HM Courts and Tribunals Service and the Society for Computers and Law. Around 300 people from 26 countries participated in the forum[6]. The forum focused on importance of technological advancements and their implementation in the legal arena. Various countries shared their practices of building efficient e-courts. The forum mainly focused on virtual courts, online submission of legal evidence and argument, passing judgements online, implementation of the ODR system and incorporation other technologies. Even India was a part of the forum.

The main learnings from the forum were:

  1. a need to establish and strengthen online plea systems, especially for certain minor offences.
  2. Combining the police computerisation and court computerisation
  3. Deploying a team with the approval of eCommittee for better implementation
  4. Exploring the latest advanced technology like artificial intelligence for database in eCourts project
  5. Providing Online assistant to Judges in making to make judgements.

  1. During COVID-19

In the wake of COVID-19, some countries are experimenting with technology for the first time, while many are developing its existing Information Technology facilities. Countries like South Africa and Uganda have decided to take up judicial proceedings on Zoom, while New Zealand is using Microsoft Teams for conducting the virtual court proceedings. The US Supreme Court is taking up oral arguments through telephones. It's first audio call proceeding was held on 4th May 2020, with each judge participating from there phones[7]. The argument was live-streamed and made avail online. By Friday or the end of the week, the audio recordings of all the oral arguments taken by the US Supreme Court are made available for the public. All the recordings are maintained at The National Archives and Records Administration.

The hearings in the UK courts have also have been replaced by virtual hearings through telephone or video conferencing, by using platforms like Kinly Cloud Video Platform, Skype and Zoom. While the lower courts are conducting most of the trials virtually, serious criminal trials in England and Wales, were taken up in the courtroom in the second week of May, while following the measures social distancing.

In Canada, the first virtual court hearing was held on 9th June 2020 via Zoom[8] and made available to the public on the Supreme Court's website. Similarly in Dubai, all the hearings are being taken up through videoconferencing on platforms like Microsoft Teams and filing of new cases is also being done electronically.

In countries like Germany, the courts are operating with reduced staff members. However, the hearings have been postponed for six months and no use of virtual court proceedings is being taken up. The law of civil procedure in Germany provides for the use of video conferencing but it is not being done as the courts are not equipped with the required facilities.

CRITICAL ANALYSIS OF e-COURTS IN INDIA

In India, there are around 15,000 courts in 2500 court complexes. Measures to make these all well equipped with technology had begun in 1990. However, there had been a lot of speculation and scepticism regarding the effectiveness and the evidentiary value of such proceedings for a long time. Not much was achieved until 2003 or 2006. However, there was an upsurge of change with the insertion of Section 65A and 65B of the Indian Evidence Act, 1872, which gave special provision to relevancy and admissibility of an electronic record. Video conferencing was interpreted by the court to be a part of this provision.

In 2003, the landmark judgement in the case of State of Maharashtra v. Dr Praful B Desai[9]was passed by the Supreme Court, where video conferencing was held to be a vital tool for collecting evidence in cases where the witness reasonably fails to make an appearance in the court for examination. The Supreme Court mentioned that actual physical presence in the court is not a must and can be overlooked in cases where the witness is unable to make an appearance due to satisfactory reasons. In this case, the recording of a witness was allowed through video conferencing as he resided in abroad and was unavailable to come to India for recording his statements. It was one of the earliest cases, where inclusion of IT was recognised by the courts. Later on, giving evidence through video conferencing by the witness was allowed in various cases[10].

In the case of Amitabh Bagchi v. Ena Bagchi[11], the High Court of Calcutta observed that it was important to allow electronic video conferencing as it was cost-effective and avoided delay of justice. Subsequently, in case of Bodala Murali Krishna v. Smt Badola Prathima[12], the Andhra Pradesh High held that video conferencing can be resorted to in civil cases as far as the necessary facilities and assured accuracy are maintained.

Clearly, during the last few years, video conferencing has emerged as an effective tool to collect evidence and in avoiding unnecessary adjournments of cases. In Dr Kumar Saha v. Dr Sukumar Mukherjee[13], the Supreme Court ordered the recording of testimonies and cross-examination of witnesses through internet conferencing. The subordinate courts have also adopted this facility to record evidence of under-trial prisoners for security reasons.

In the case of State v. S.J. Choudhary[14] , it was held that the word 'handwritten' in Section 45 of the Indian Evidence Act, 1872 included 'typewritten'. Later, on the same principles courts interpreted various other terms like, 'telegraph' to 'include telephone', 'to take note' to include 'use of tape recorders' and 'documents' to include 'computer databases'.

In 2004, the National e-Governance Plan made a Mission Mode Project (MMP) for the computerisation of courts in India. It was conceptualised to create, make accessible and implement information and communication technology (ICT) for automated decision making systems. The e-court project was essentially based on the 'National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary (2005)' which was submitted by the e-Committee constituted by the Supreme Court.

On 7th August 2013, the national portal for e-Courts (ecourts.gov.in) was launched, making available the cases filed, cases registered, the case status notification, the daily cause-list as well as the copies of orders, through the web, mobile and other online platforms. The online database system known as the National Judicial Data Grid was established to help in online tracking of the statistics of cases, court-wise. The National Service and Tracking of Electronic Processes (NSTEP) was created for other essential services of online filing, payments and technology, to enable the process of issuing and serving of summons with least manual intervention. The platform also has a judicial management information system to provide for training material, like links of District Courts websites and statistical reports, for judicial officers and staff.

By 2014, the Government approved computerisation of 14,249 District and subordinate Courts with a budget of Rs. 935 crore. Currently, as on 31st March 2014, around 13,227 District and subordinate courts have been computerised in the country as against the set target of 14,249 courts.[15]

Slowly slowly, the courts in their judgments made it clear that IT will be an integral part of the judiciary. Like in the case of Krishna Veni Nagam v. Harish Nagam[16], it was held that when both parties of a matrimonial dispute are not located within the jurisdiction of the same court, they can participate in the case through video conferencing. It was held that in cases where both parties have equal difficulty due to access to a convenient place, it is appropriate to use video conferencing technology.

Today, various states like Andhra Pradesh, Bihar, Gujarat, Maharashtra and Tamil Nadu have already adopted the system of tele-justice. In Maharashtra, more than 40 jails in and near Mumbai are all connected through video conferencing to the district level courts.

Thus, it can be held that with the current announcement of the SC to hold virtual court proceedings, India has taken another huge step forward towards adopting the use of technology in the legal arena. It has its own set of advantages and setbacks. However, it has proven to be a great alternative to safeguard justice during the pandemic. Various High Courts have also issued different guidelines to use this system to its best. The guidelines on Videoconferencing issued by the Himachal Pradesh High Court incorporate that Videoconferencing facilities can be used for remands and bail applications, as well as in civil and criminal trials. The guidelines issued by the High Court of Delhi state that evidence can be received through Videoconferencing and allowed submission of statements by witnesses through the same, especially in cases where it would be costly or inconvenient for a person to attend a court proceeding in person. However, recording of the evidence through video conferencing has been left to the discretion of the court.

Thus, the usage, system and development of IT in various countries can prove to be very useful in developing a better system in India. India can borrow and test systems already in use in foreign countries and can develop a great system.

ADVANTAGES OF THE VIRTUAL COURT PROCEEDINGS

IT systems as well as e-communication devices like email, video conferencing and voice chatting, etc. offer to process, store and transfer huge amounts of data with speed, security and accuracy. It enhances the easy exchange of information between different locations within seconds, without causing any unwanted delay.

One of the main problems faced by the Indian judiciary system is the pending cases or backlogs, and the huge delays in solving these cases. The introduction of the high efficiency of the IT in subordinate courts and its seamless transfer of information within seconds can help to lessen the dependency of cases in the courts. Since the record of the pending cases from each court will be available online, in terms of the cause list along with the case details, it will be easy to track them and the rate at which they are being addressed by the courts.

The video conferencing system at the courts and prison facility will help the accused, witnesses and defendants participate in all legal proceedings without having fear of the dangers associated with coming physically to the court. Blackmailing of witnesses, causing their accidents, kidnapping them or threatening them when they are on their way to court is one of the biggest reasons why witnesses do not make it to the court for submitting their statements most of the time. The facility of videoconferencing shall be beneficial in ensuring that no such incident or withdrawal to give witness takes place.

Another advantage of the Virtual Court System is that it saves time, energy and money of the litigants and counsels while ensuring their timely presence before a court. Since due to the crisis and imposition of lockdown no one can move out of their house, Virtual Court System will serve to be the best means of availing justice since it does not require the physical presence of the parties at one specific place. It must be noted that even before the pandemic many people faced difficulty to access the courts due to the lack of financial means, some physical disabilities or other unavoidable circumstances. For such people, video conferencing is cost-effective and time-saving. Thus, this system should be made available in all Indian courts for all sorts of matters even after lockdown.

One of the greatest advantages of virtual court proceedings is that it shall facilitate uniform and standard documentation of all the cases that are taken up by the courts. Over the last decade, it has been brought into notice the low standards of maintaining a public record of the court proceedings in India. Since documentation is important to preserve history, IT can be used to store and make available all these with no hassle. The virtual system will also help the courts in issuing authentic digitally certified copies in an instant and shall help in making the digitally signed court orders and judgments available to the citizens. Also, since the evidence is being uploaded and taken digitally, including the statements of the witnesses, the evidence becomes free from the risk of being tampered.

Openness and transparency are the essentials of retaining faith of the public in the judiciary. Earlier, individuals could only enter the SC if they had a pass and due to limited space many individuals along with students were refrained from entering the court, especially on Mondays and Fridays. In the case of Swapnil Tripathi v. Supreme Court of India[17], a law student was not allowed to watch the SC proceedings in person. The court held that under Article 21 of the Indian Constitution, the public had the right to access justice and thus, the court proceedings should be streamed live especially for the benefit of journalists, lawyers, activists and academics. Journalists have been given access to watch the virtual court proceedings during the lockdown. This all makes sure that the judiciary is kept in check and does not exceed its power.

In the case of Santhini v. Vijaya Venketesh[18], Justice DY Chandrachud wrote in favour of the use of modern technology and video conferencing. In his judgement, he highlighted the pros of video conferencing which are:

a. "The Family Courts Act, 1984 was enacted at a point in time when modern technology which enabled persons separated by spatial distances to communicate with each other face to face was not fully developed. There is no reason for the court which sets precedent for the nation to exclude the application of technology to facilitate the judicial process."

b. "Imposing an unwavering requirement of personal and physical presence (and exclusion of facilitative technological tools such as video conferencing) will result in a denial of justice."

In the case of M/S Meters and Instruments v. Kanchan Mehta[19], the SC held that that "Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts, with the need to categorise cases which can be concluded "online" without the physical presence of the parties where seriously disputed questions are not required to be adjudicated like traffic challans and cases of Section 138 of NI Act"

DISADVANTAGES OF THE VIRTUAL COURT PROCEEDINGS

India is one of the most populated country with people belonging to different social strata. Most of them belong to the lower economic class and not many can avail the facilities of IT, especially those living in rural areas. While the facility of virtual court proceedings has various advantages, not all can access justice through these. The gap between the resources available in the rural areas as compared with those available in the metropolitan cities is too large. Also, people in the rural area lack the basic knowledge and awareness of using such technology. Thus, while video conferencing is an essential alternative right now, it fails to reach out to the masses and the poor sections of the society who lack the resources and knowledge to use the same.

Another disadvantage of this system is that there is a huge security risk. In many cases, there is sensitive personal information involved, like in matrimonial or rape cases and leaking of such information can cause a lot of damage to the parties involved in the case. The data available online can also be hacked if there is any loophole in the security system of the portal where the virtual court proceedings are to be held.

IT has evolved a lot and many people have learnt to utilise it for the good as well as the bad. This creates the possibility of individuals uploading fake or unauthentic evidence by making it seem authentic through various softwares available. The court will have to be extra cautious while accepting any such evidence and be well equipped with softwares that shall identify the same.

CONCLUSION & SUGGESTIONS

There is no question that virtual courts have become the call of the time and shall emerge as essential in the future. However, it is important to address the shortcomings associated at different levels of the implementation of the said system in the Indian Judiciary. Various problems are still to be addressed. Some essential steps should be taken up for the smooth functioning of the system, especially during the emergency of the spread of the Coronavirus pandemic.

An advanced software should be created by the government or authority appointed by the SC and the HCs which shall be accessible to the judges, court staff, lawyers and other members of the court. It should be ensured that there are no glitches or problems in the functioning of it. However, sensitive information should be made available only to the staff to avoid any security breach. The parties in a case should be given limited access, where they can file applications, submit evidence and be a part of the proceedings. The security of this software should be of utmost importance so that none can hack into it to access the data.

The internet services have to be improved and the issues with the bandwidth have to be addressed and taken care of. A database should be created for the calculation of the fee electronically for transparent calculation of fees. This shall ensure that there is no scope of corruption or any sort of extortion of money. The database shall contain the names and details of all the judges so that they can be electronically assigned the cases. It shall also have categories of cases with similar ones being grouped so that the judges can easily choose and close similar cases at one go. Lastly, there should be a fixed date and time for the case hearing and the online portal for the same shall be functional only during that fixed time.

The system or software should have a simple user interface so that non-technical users such as judges, court staff, lawyers and parties can easily operate it.

Lastly, the right of access to justice should also be expanded to the public by live-streaming the proceedings in some cases. Parties should be given the choice of restricting access in case they do not want to make their matter public. Such right should be granted in matrimonial, domestic violence or rape cases. Matters of national security, defence and other important issues should be excluded.

For access of these facilities to all, centres have to be established at various levels, starting from the panchayat and district level for the assistance of the people who do not have resources to avail the IT services. Private enterprises can assist in making such centres at various places for the benefit of all. In addition, law students should be taught the basics of using virtual platforms like video conferencing and how to fill and file e-forms.

However, while the virtual court systems are a great beginning, there is also a requirement to take a step towards establishing a comprehensive dispute resolution, while blending the electronic courts with the physical courts. The following system is well established in many countries and is known as Online Dispute Resolution (ODR). The ODR consists of electronic negotiation, electronic mediation and electronic arbitration. The following system can be used to resolve commercial disputes, particularly those related to arbitration and e-commerce.

Thus, the notification of the SC to take up virtual court proceedings is a step towards success and improvement in the judiciary. The system should be adopted even after the lockdown, where both the virtual and physical courts are accessible by the people. Those who can not make an appearance in the court can easily avail the system of the virtual courtroom. Resolution in civil cases and commercial disputes can be a good initiating point for the virtual system. Technology has taken over the world and shall continue to expand. The Indian judiciary will have to make the best of it for its progress and deliverance of justice to all sections of the society.


Bharti Raina, is a Second Year (LLB) student at Amity Law School, Amity University, Noida. Views are personal







[1] The Civil Procedure Code, Section 153B and Criminal Procedure Code, Section 327: provide for hearings to be generally be accessible to the public.

[2] High Court of Delhi Notification, Video Conferencing Rules, Chapter II, Section 3 (iii), F.No. 325 /Rules/DHC (June 1, 2020)

[3] PTI, SC defends 'virtual courts system' during COVID-19 pandemic, says it ensured justice, The New Indian Express, May 2, 2020.
[4] Kanu Sarda, Virtual hearing: India's Supreme Court way ahead than many counterparts, The New Indian Express, May 4, 2020.
[5] Mimi Zou, Virtual Justice in the Time of COVID-19, University of Oxford, Faculty of Law, March 16, 2020, available at https://www.law.ox.ac.uk/business-law-blog/blog/2020/03/virtual-justice-time-covid-19
[6] International Forum on Online Courts December 3-4, 2018, The Cutting Edge of Digital Reform, available at https://doj.gov.in/sites/default/files/Final%20Tour%20Report%20UK%20V3.pdf

[7]Pete Williams, Supreme Court makes history with oral arguments by phone. But it's business as usual for justices, NBC News, May 4, 2020
[8] Lauren Parrish, Canada: Courts Go Virtual As Most Hearings And Limitation Periods Remain Suspended, June 16, 2020 available at https://www.mondaq.com/canada/operational-impacts-and-strategy/953824/courts-go-virtual-as-most-hearings-and-limitation-periods-remain-suspended
[9] 2003 4 SCC 601

[10] Alcatel India Ltd v. Koshika Telecom Ltd & ors (2004 (3) ARBLR 107 Delhi)- witness being unwell was allowed to give evidence through video conferencing.

[11] AIR 2005 Cal 11

[12] AIR 2007 AP 43

[13] Civil Appeal No. 2867 of 2012

[14] (1996) 4 SCC 567

[15] Department of Justice, Ministry of Law and Justice Govt. of India, National Council of Applied Economic Research, Evaluation Study of eCourts Integrated Mission Mode Project.

[16] Transfer Petition (Civil) No. 1912 of 2014

[17] (2018) 10 SCC 628

[18] Transfer Petition (CIVIL) NO.1278 OF 2016.

[19] (2018) 1 SCC 560

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