Author – Rakshit Gupta, Student from Symbiosis Law School, Pune.
Introduction:
In a report released on September 11, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice proposed that virtual courts be maintained for certain types of cases even after the COVID-19 outbreak is over.
Bhupender Yadav, a senior BJP official, chaired the panel, which presented its findings to Rajya Sabha Chairman M. Venkaiah Naidu[1].
On problems relating to the operation of virtual courts, the Committee met with the Supreme Court’s secretary general, secretaries of the department of justice and legal affairs, and officials of the Bar Council of India, among others.
The panel decided that while virtual courts have flaws, they are an improvement over the current system and should be adopted.
Virtual Courts:
The Indian judiciary was hampered by the unanticipated lockdown brought on by the coronavirus outbreak. The Supreme Court has implemented virtual court proceedings in order to decide urgent situations and to allow the judicial system to fulfil its constitutional responsibility of giving access to justice at all times.
Prior to COVID, the virtual court arrangement was largely utilized to process remand issues in order to keep convicts from moving between courts and jails. Virtual court facilities have been established between 3,240 court complexes and the 1,272 prisons that serve them[2].
The Supreme Court granted video-conferencing legal status on April 6, 2020, by issuing an encompassing decision using Article 142 of the Indian Constitution, which applied to all High Courts in the country. The High Courts were given the choice to use technology after customizing it to fit their needs, in keeping with the unique characteristics of each state’s court system and in light of the changing health care landscape. The High Courts are in the process of implementing model video-conferencing guidelines that have been disseminated. The district courts were to use the video-conferencing method that the concerned High Courts had prescribed.
What are Virtual Courts?
Plaints and other papers, such as written submissions and Vakala Nama, are lodged electronically in virtual courts, and arguments are heard by video-conferencing/teleconferencing, evidence is supplied digitally, and judges make decisions online while ruling in a physical courtroom or from a remote location.
As a result, virtual courts modify documentation, evidentiary, and procedural systems, and hold hearings entirely online.
Difference between Virtual and Online Courts:
Online courts are a step forward from virtual courts. The sole difference between virtual courts and online courts is that in the former, the hearing is synchronous, whilst in the latter, the engagement is asynchronous[3].
This means that for a case to move forward in virtual court proceedings, the judge, litigants, attorneys, and witnesses must all be present at the time of the hearing. Participants in online courts do not have to be present at the same time. The judge is presented with evidence and arguments without the parties being present at the same occasion.
The usage of online platforms for the resolution of disagreements between parties through alternative dispute resolution procedures is referred to as online dispute resolution.
Challenges and Solutions to Virtual Courts:
Many advocates and litigants, particularly those in rural and isolated places, lack the fundamental infrastructure and high-speed internet connections essential for virtual case hearings. For the great majority, the digital divide renders access to justice pricey and unattainable[4].
There are three dimensions to the digital divide:
- Access divide (access to equipment and infrastructure).
- Disparity in connectivity (access to broadband connectivity).
- Skill subtraction (skills and knowledge required to use digital platforms).
E-Seva Kendras will go a long way toward overcoming the ‘access barrier,’ and they are planned to be established in all court complexes across the country as soon as possible.
To address the connectivity gap, the Committee has advised stepping up efforts to enable the timely execution of the National Internet Mission, which envisions universal broadband coverage and fully using the services offered by indigenous communication satellites[5].
The Committee also suggested that the judiciary examine innovative alternatives such as offering mobile video-conferencing services for advocates and persons living in remote places.
To address the ‘skill divide,’ the Committee recommends that awareness and training programmes be held in all court complexes throughout the country to familiarize advocates with innovation and facilitate them to attain the skills needed to handle digital platforms so that advocates can perform digital platforms themselves. Advocates would be expected to combine technology talents with their specialized legal expertise; thus, they would need to keep up with the times.
Poor internet connectivity is one of the most significant challenges experienced during virtual hearings. Virtual court proceedings are plagued by technical difficulties, particularly during peak hours when a large number of individuals join on to the video platform.
The quality of courtroom technology must be improved before court procedures can be virtualized. The Committee has advised commissioning a study of courtroom architecture and developing specialized software and hardware to permit virtual court proceedings to meet the needs of the Indian courts.
Open Court Principle:
Virtual courts, according to some experts, endanger the validity of court proceedings and weaken the value of the Rule of Law, which is a part of the Constitution’s essential structure. They claim that virtual court proceedings go against the essence of the open court principle.
Virtual hearings contradict the principle of open court enshrined in Article 145(4) of the Indian Constitution, Section 153B of the Code of Civil Procedure, 1908 and Section 327 of the Code of Criminal Procedure, 1973[6].
On several times, the Supreme Court has underlined the significance of the open court idea, and has also stated that streaming live of court sessions is an extension of the open court principle. It has emphasized the importance of live streaming court sessions in encouraging openness and transparency, which strengthens public confidence in the legal system.
Court proceedings are recorded in some way or another in many countries.
The Committee concurred with the Supreme Court’s judgement that live streaming court hearings, particularly issues of constitutional and national importance affecting the general public, will increase transparency and openness. To further the principle of open justice and open court, the judiciary may contemplate streaming virtual hearings of certain specified kinds of cases, according to the Committee.
Concerns about data security:
Virtual courts are being criticized for potentially jeopardizing data privacy as well as the confidentiality of dialogues and court processes. For example, while conducting court hearings using Zoom, a third-party software tool, courts in the United States had to contend with a ‘Zoom bombing,’ an uninvited incursion by hackers into a video-conference call.
In India, third-party software applications such as Vidyo, Jitsi and Cisco, are presently being used for video-conferencing court sessions[7].
Third-party software, according to the Committee, constitutes a significant security concern because such software programmes and applications are vulnerable to hacking and manipulation.
While introducing a new framework for India’s judicial system, the Committee has advised the ministries of law and justice and electronics and information technology to manage data privacy and security vulnerabilities.
It was also suggested that blockchain technology be used to increase the dependability of evidence and transaction security, as well as to strengthen the digital security of case files. Authentication systems that are properly standardized must be implemented. Procedural safeguards should be in place to support online systems.
Fundamental legal values such as participatory justice, impartiality, fairness, and accessibility to justice must be constructed and incorporated into court systems in such a way that they are not jeopardized.
Legal technology businesses that are working on creative solutions can help to unlock the limitless potential of technology to integrate stakeholders in the justice system and discover cost-effective and efficient solutions.
E-Court Mission Mode Project:
The ‘National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary-2005′ served as the foundation for the e-courts project.
On August 7, 2013, the e-Courts National Portal (ecourts.gov.in) was established. The case information System (CIS) Software gives case status, a daily cause-list, cases submitted, and cases registered[8].
The project’s first phase was executed from 2007 to 2015, while the second phase began in 2015. The Department of Justice is in charge of monitoring and funding it, and the National Informatics Centre is in charge of implementing it (NIC).
The project is moving slowly, according to the Committee. Virtual case hearings are impossible to achieve without the right infrastructure in place.
Conclusion:
The core concept of accessibility to justice in the rule of law is embodied in the Indian Constitution. It cannot be withheld to the entire public, and all members of society should have equal access to justice. Virtual courts are the way to go if we want to withstand the pandemic and prepare for the future.
After considering all of the reasons for and against virtual courts, it is reasonable to conclude that the benefits exceed the risks if we take the required steps to improve our virtual court system. The backlog of files, as well as the travel costs spent by plaintiffs and lawyers, can be decreased, resulting in a faster justice delivery system. Lawyers can overcome their issues with proper training. Everyone must adjust to the new normal of digitalization. So, how can we meet the difficulties of a digitally transformed world? We’ll be able to conquer the obstacles if we stick together. Technology just provides guidance and support; the final step is in our hands. The position is similar to that of a tiny child who is learning to walk on the floor for the first time, but must persevere despite his difficulties.
[1] Press Trust of India. (2020, September 11). Parliamentary panel suggests continuation of virtual. -COVID period, says digital justice cheaper and faster. Firstpost. https://www.firstpost.com/india/parliamentary-panel-suggests-continuation-of-virtual-courts-in-post-covid-period-says-digital-justice-cheaper-and-faster-8807211.html
[2] “Supreme Court of India conducted 96,239 Virtual Hearings since onset of Lockdown in 2020, has emerged as Global Leader”: Union Law Minister To The Parliament. (2021, August 11). LawBeat. https://lawbeat.in/news-updates/supreme-court-india-conducted-96239-virtual-hearings-onset-lockdown-2020-has-emerged
[3] Santos, J. (2021, September 18). What is the Difference Between Online Dispute Resolution and Virtual Courts? ODR Guide. https://odrguide.com/what-is-the-difference-between-online-dispute-resolution-and-virtual-courts/
[4] Agarwal, Y. (2020, October 23). Challenges in Setting up Virtual and Online Courts in India. TheLeaflet. https://www.theleaflet.in/challenges-in-setting-up-virtual-and-online-courts-in-india/
[5] Virtual courts- Challenges and a way forward. (2021). Legalservicesindia. https://www.legalserviceindia.com/legal/article-3595-virtual-courts-challenges-and-a-way-forward.html
[6] Dubey, P. K. (2020, April 12). Virtual Courts: A sustainable option? Bar and Bench – Indian Legal News. https://www.barandbench.com/columns/virtual-courts-a-sustainable-option
[7] Nair, S. K. (2020, September 11). Law Ministry panel bats for more virtual courts. The Hindu. https://www.thehindu.com/news/national/continue-virtual-courts-in-post-covid-period-as-digital-justice-is-faster-cheaper-panel/article32579533.ece
[8] C. (2021, April 6). The eCourts Mission Mode Project. JournalsOfIndia. https://journalsofindia.com/the-ecourts-mission-mode-project/