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Virtual courts in the times of Covid-19: Are we future ready?

Though these measures are commendable, we need to consider if India is ready to adopt virtual courts as a permanent part of the justice dispensation system.

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Virtual courts in the times of Covid-19?
Virtual courts in the times of Covid-19?

The Covid-19 pandemic has disrupted the justice delivery system like never before. The compulsions associated with “social distancing” coupled with lockdown directives have led courts and tribunals to shut their premises to the public. At the same time, recognising that a complete shutdown of the justice-delivery system is undesirable, the judiciary has turned to technology to meet the challenges posed by the pandemic.

Various judicial and quasi-judicial bodies, led by the Supreme Court, have been conducting hearings through video conferencing. However, the prevailing circumstances have also provided an opportunity to embrace, and maybe even integrate, technology into our judicial system as a permanent feature. This is the need of the hour and judicial administrators are responding proactively to the challenges posed by the pandemic.

In the coming times, what needs to be considered is that though these measures are commendable, are they sufficient and is India ready to adopt virtual courts as a permanent part of the justice dispensation system? The Supreme Court bench headed by Justice DY Chandrachud, who is presently the head of the Supreme Court E-Committee, while delivering judgements on 13 April 2020, is reported to have said that the technology being used for the Supreme Court has been advancing in some respect, however live broadcasting and viewing of proceedings and hearings would not be open to and accessible by all for the time being.

Vanita Bhargava is a Senior Partner of the Dispute Resolution Practice with Khaitan & Co, New Delhi. She is an advocate-on-record in the Supreme Court.

On the other hand, Justice GS Patel of the High Court of Judicature at Bombay issued special directions for live streamlining of matters listed before him between 8 April 2020 and 14 April 2020. To answer the question, one needs to consider the following:

WHAT ARE THE ADVANTAGES OF ADOPTING A SYSTEM OF VIRTUAL HEARING?

The present situation clearly depicts the effect on society and economy if the justice system comes to a halt. It causes great hardships to the legal system, practitioners, and mainly to the litigants. One cannot rule out altogether, the occurrence of a similar situation in the future that causes a disruption such as the current Covid-19 pandemic, therefore, it is essential that we prepare ourselves with a better virtual court setup.

SPEEDY DISPENSATION OF JUSTICE

Speedy justice is especially required in cases of bail and criminal trial to prevent people from languishing in prison. It is also necessary to resolve commercial disputes, and to that extent virtual mediation can be given a push.

PRESERVATION AND PROTECTION OF FUNDAMENTAL RIGHTS

Fundamental rights ought not and should not remain suspended due to disruptions of the kind we are facing currently. To see if virtual court system can help in transcending space and geography and increase access to the judicial system, it needs to be ensured that the infrastructure is in place, including in the rural and remote areas of India.

While such a system could help transcend space and geography at the same time the access of justice to litigants would largely depend on the available infrastructure, creating awareness and imparting training to various stakeholders. Therefore, at this point, it seems as though, virtual courts becoming a permanent feature in all districts and courts across India is a difficult task considering the cultural, economic and geographical position of India, where many may not be able to afford the infrastructure required.

It would need to be ensured that facilities such as e-sewa find their reach along with ease of accessibility to the remote parts of the country apart from being available in the Supreme Court and the High Courts.

ISSUES TO ENSURE “FAIR HEARING”

Apart from ensuring that all interested parties have access to the virtual court system, it needs to be made sure that the principle of fair hearing is adhered to. In order to ensure “fair hearing”, one way could be to try and have the trials which involve matters of public importance to be heard in physical open courts, while virtual court hearing could be reserved from matters which are more personal in nature.

In the new standard of procedure, to maintain decorum and ensure fair hearing, some housekeeping rules have been laid down, which can be further developed to make sure that the ends of justice are met. As per the present rules, it is provided that an advocate cannot rely on any documents other than those that have been filed. This is restrictive and may hamper effective adjudication.

On the other hand, it may be argued, that such a system is assertive and it prescribes strict procedures which will ensure timely disposal of cases. A suitable alternative could be a system where the party is granted fixed time-period for filing any additional documents either during the hearing or at a subsequent stage, comparable to the current process of application to file “additional documents”. Another possibility could be live streaming of the hearings on a forum hosted and maintained by the respective courts for live public viewing. Any interested party who may wish to advance any submissions may subsequently file an application seeking leave of the court to do so.

CONFLICTS WITH “OPEN COURT” MANDATE UNDER LAW

The principle of open courts is that access is given for hearings to public and media, which is a necessary element in preserving freedom of speech and expression, and freedom of press. It also acts as a check and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality in the administration of justice.

The principle of “open court” is encapsulated in the Constitution of India under Article 145(4); Section 327 of the Code of Criminal Procedure, 1973; and Section 153B of the Code of Civil Procedure, 1908. There would be no principle of open court if the media or public are not provided access to the hearings.

Therefore, if the virtual courts’ system is implemented, and the open court principle is to be maintained, it would be vital to adopt the right technology, which is also secure. Open court, as a principle, even helps the younger members of the bar to learn through observation, which furthers their growth. Therefore, this aspect cannot be ignored and has to be taken care of while promoting virtual courts.

PRESENTING THE UNDER TRIALS IN COURT FROM JAIL

Undertrials are required to be presented before the court from jail for certain hearings, for example, bail hearing, announcement of charges, etc. There are procedures in place for the same. However, in case of virtual courts such procedures would have to be put in place.

Section 28 of the Criminal Evidence Act 1999 of England and Wales provides for pre-recorded cross-examination to be shown as evidence in trial cases involving vulnerable or intimidated witnesses. Guidance can be taken from this and other similar provisions from various jurisdictions. In case of undertrials, as well, similar provisions can be put in place, and physical presence limited to cases of utmost necessity. There would, thus, be a need of adequate technology in the jail premises, offices of investigating authorities and prosecutor offices to conduct virtual hearing.

EXAMINATION-IN-CHIEF/CROSS-EXAMINATION

Another important, rather integral, part of a trail is conducting chief/cross-examination of the witnesses. There are credibility issues so far as cross-examinations and examination-in-chief of witnesses are concerned. In this regard, examination of witnesses situated in a different geographic location via commissions merits to be particularly looked at.

While evaluating witness testimony, particularly under cross-examination, there is a concern that the loss of in-person observation, demeanour of a witness will impair the court’s ability to assess the credibility and strength of the evidence. It may be difficult to capture the “look and feel” of the witness’s evidence onscreen and to discern body language, facial expressions and tonal changes.

Further, remote participation raises concerns of witness being coached off-camera or reading from a hidden script. This casts doubt on the soundness and utility of a witness’ virtual evidence. However, this difficulty can be creased out by providing supervised examination rooms in various districts with video conferencing facility. This will also ensure that no adjournments are taken due to non-availability of a witness. Moreover, secured servers can be created, so that documents are not tampered with while being shared virtually, and the use of blockchain technology etc can be used to ensure authenticity of the same.

CHALLENGES TO CONFIDENTIALITY

A major concern for virtual courts is security breaches and confidentiality. This is enhanced if third party software is used, as the user will be governed by privacy policy of the service provider. The present standard of procedure provides that hearing shall not be recorded. However, the question is, what is the effective way of ensuring the same.

Documents and information of cases are very sensitive and showing them online does pose a certain threat especially in a country where cyber-crimes are at a rising rate and very difficult to track (due to identity theft). In such a scenario, it becomes paramount to develop a software that not only has ease of accessibility but is at the same time secure and protected.

PRACTICAL CONCERNS

Virtual hearings might not necessarily work for all category of cases. Matters which are simpler can easily be adjudicated through virtual courts, like presently, matters relating to traffic challans are being dealt with virtually. Different standard of procedures can be laid down based on the category of cases.

Where it appears that it is difficult to adjudicate a case based on standard of procedure laid down, a party may indicate the reasons therefor and the court based on the same or suo motu, in its discretion, may direct hearing in physical court. Infrastructure challenges could include good internet connectivity, especially in case of video calls (conference and hearings).

Further, the access to hearings would be limited to people registered, as that is the only way to filter that fraud and ensure misrepresentation does not take place. Going forward with increased technology, awareness, provision of facilities in all districts, it could be used extensively, and physical Courts could be reserved as an exception for conduct of hearings of public interest or other excepted categories. There is a need to replicate international arbitration models in India, whereby routine hearings and case management conferences are held via video or audio conference.

The litigants are also to play their role in achieving a successful model of virtual courts. Steps that litigants and parties could take include: having digital signatures in place; keeping scans of all documents; having facilities like printer/ scanner available for ease of correspondence and efficient exchange of documents; having the basic infrastructure such as a good internet connection in place for virtual connectivity.

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AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT

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The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.

The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.

The fourth proviso to sub­section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such co­operative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.

The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.

An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.

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Where the crime was committed the remission or premature release policy of the state has to be considered: Supreme Court

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission or pre­mature release in terms of the policy which is applicable in the State.

While allowing the writ petition the court observed and contended that Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court, as the case may be. The court further stated that under Section 432(7) CrPC the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments.

the appropriate Government in the ordinary course would be the State of Gujarat. But the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighboring State i.e., the State of Maharashtra by an order dated 06.08.2004. ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC as the crime in the instant case was admittedly committed in the State of Gujarat, observed by the Apex Court.

he application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner by judgment impugned dated 17.07.2009 As His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. Thereafter He had filed his petition for pre­mature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed and noted that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of the appropriate Government.

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Adopt roster based reservation for preferential candidates as followed by JIPMER: Supreme Court directs all AIIMS institutes

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The Supreme Court in the case Students Association AIIMS Bhopal And Or’s. v. AllMS and Or’s observed and directed all AIIMS Institutes to adopt roster-based reservation followed by Jawaharlal Institute of Postgraduate Medical Education and Research, Pondicherry (JIPMER) as a plea was filled in the Court seeking direction to AIIMS to have a defined criteria for arriving at seat matrix for institutional preference candidates in INI-CET examination.

the order of the Apex Court in the case AIIMS Students’ Union v. AIIMS And Or’s, would not be applicable if It emphasized that if the roster-based system is implemented the actual roster points for AIIMS would be different from JIPMER as the same would depend on the percentage of seats decided to be allocated to the preferential candidates but It stated that the reservation would be similar to the one adopted by JIPMER AIIMS New Delhi was willing to provide a roster-point based reservation for its institutional preference candidates, by way of an affidavit 20th January 2022 the Bench was apprised that pursuant to a meeting held on 28th June 2020 as prescribed the relevancy:

It shall not be too wide with the one for the general category candidate, that the margin of difference between the qualifying marks for the Institute’s candidate.

The one who has secured marks at the common entrance PG test less than the one secured by any other candidate belonging to reserved category enjoying constitutional protection such as SC, ST etc. cannot be the AIMS graduate the last student to qualify for admission.

appearing on behalf of AIIMS, Advocate, Mr. Dushyant Parashar, New Delhi was asked to get instructions from AIIMS, Bhubaneswar and Jodhpur so that the Court can pass appropriate orders on the next date of hearing. As that apart from AIIMS, Bhubaneswar and AIIMS, Jodhpur, all other AIIMS before the Apex Court has agreed to implement the roster-based reservation system followed by JIPMER Puducherry for their institutional preference candidates, the Court was informed at the last date of hearing.

the petition had been filed seeking direction to AIIMS to disclose how the seats for institutional preference candidates are to be allotted in the view of the same the petitioners claim that in the INI-CET examination conducted in July, 2021, only 4 seats (1.87%) in AIIMS, New Delhi were allotted to institutional preference candidates. Rivetingly, the petitioners note that no seats were allocated to any other AIIMS for admission of institutional preference candidates.

the Bench comprising of Justice L. Nageswara Rao and the justice A.S. Bopanna observed and noted that to record in the order that the roaster system would be applicable from this year. Mr. Parashar informed it that since new software is to be put in place for counselling, it might cause some delay. The bench further stated that the court will order it to apply this year but in case of delay AIMS can come later.

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‘The crime committed has to be considered in the remission or premature policy of the state’

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

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Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court

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The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

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Bank case rejected by Supreme Court against farmer

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The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

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