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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?

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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