Virtual Courts and Way forward

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TOPIC: General Studies 2

• Judiciary; new developments
• World post COVID-19

In News: The COVID-19 pandemic has had a significant impact on the legal fraternity of India. Following the imposition of the 21-day Coronavirus lockdown, starting with the Supreme Court, many High Courts and subordinate courts have suspended work for the next three weeks or have notified minimal sitting. 

The Supreme Court has passed directions for all courts across the country to extensively use video-conferencing for judicial proceedings saying congregation of lawyers and litigants must be suspended to maintain social distancing amid the coronavirus pandemic. 

• The top court, which has restricted its functioning and is conducting hearing through video conferencing since March 25, exercised its plenary power to direct all high courts to frame a mechanism for use of technology during the pandemic. 
• A bench headed by the Chief Justice stressed that “technology is here to stay”. It also resolved to institutionalise e-processes even after normalcy returns.

The work of the courts is a vital public service

The top court on March 23 had held a successful trial of its functioning through video-conferencing and three matters were heard virtually in which judges sat in the courtroom while advocates argued from a different spot in the apex court.

In a deviation from regular practice, the High Courts of Bombay and Karnataka issued notifications adopting virtual courts using video conferencing facilities on March 17 and 21. It was done to utilise the advances in the information and communications technology to deliver justice at a crucial time and under unprecedented circumstances.

The Supreme Court, through its Secretary General Sanjeev Kalgaonkar, on March 23, also notified the use of “Vidyo” app for facilitating hearings via video-conferencing. It is believed that upon request by Senior Advocate Abhishek Manu Singhvi, the Court was willing to extend the video-conferencing facilities even to the offices of counsel. The Court has also kept alternative options of apps and platforms such as WhatsApp, Facetime, and Skype open as well in case of network linkage issues.

“It was a very enriching experience and I think it is going to be the order of the day for the future. What was amazing was that there was absolutely no hitch or any break and the 45 minutes long hearing went on absolutely smoothly.” – Senior Counsel KV Vishwanathan

The Challenges

• The use of video and audio enabled hearings have also faced significant legal and practical problems including admissibility and authenticity of the evidence received through the video and/or audio transmissions, the identity of the witness and/or individuals subject of the hearings, the confidentiality of the hearings.
• Other challenges might be poor quality of internet connection, poor and outdated the audio and video equipment, power cuts, inability to establish connection at the agreed time, inability for multi-party to partake especially involving interpreters and vulnerable witnesses.
• Face-to-face contact is essential to build trust and develop relationships. Guilt or innocence is not, as many would have it, simply a case of knowing whether you did the act alleged. There are also mental elements to to consider, such as the perpetrator’s intention. Defences such as duress or reasonable excuse may require the defendant to reveal delicate or personal information – they may not feel comfortable doing so to a stranger over a video link, while sitting in a cramped room in a police station.

The Pros

• Saves significant court costs in terms of building, staff, infrastructure, security, transportation costs for all parties to the court proceedings, especially transfer of prisoners from jails.

What is happening around the world?

In a letter to his colleagues on March 24, Chief Justice of the Republic of South Africa Mogoeng Mogoeng emphasized that the courts “have to stay open in case members of the public want to bring one challenge or another in relation to the constitutionality or validity of the measures being implemented”.

The United Kingdom is bringing in emergency legislation, The Coronavirus Bill (2020), to expand the use of the video and audio link to variety of different proceedings including allowing the public to participate in court and tribunal proceedings through audio and video, so as to alleviate any concerns surrounding the issues of open and fair justice.

The Way Forward

Going forward, it needs to be cons

idered carefully by the Supreme Court of India and the Law Commission of India whether relevant rules and in the High Courts as well as in the lower courts can be amended so that video and audio enabled hearings can be take place for the benefit of the public even beyond the COVID-19 lockdown period.

The way forward can be considering the following measures –  

• Significant investment in court and IT infrastructure
• Clear classification of cases that can be taken care of in the virtual space
• Records of the existing ongoing cases will have to be digitised. Case-management systems will need to be modified or replaced to allow for new technology and remote access.
• Records of the proceedings need to be taken care of in terms of its dissemination

More importantly, we should still remember that, at no given circumstances, should speed be equated to efficiency, and efficiency is promoted over justice.

Connecting the Dots:

1. What do you think will the court rooms of the future entail?