Virtual Court Hearings in India and Way Forward

Introduction:

The outbreak of COVID-19 has affected the daily life of the people across the world. It has adversely affected the social, political, economic balance of the society at large. The safety measures are taken by every affected country to prevent the spread of COVID-19. In India, the nationwide lockdown has imposed and various measures under the Epidemic Disease Act, 1897, and Disaster Management Act, 2005 are taken.

The country was under lockdown, and the working of the judiciary is also stuck down. India is a populous country, has a huge number of pending cases and due to COVID-19, the burden of pending cases, as well as newly filed cases, are increased on the courts. Till February 2020, 59,670 cases were pending in the Supreme Court of India.[1] Due to nationwide lockdown, justice may delay in many cases, and we often say that “Justice delayed is justice denied”, to overcome from this to a certain extent supreme court even in this troubling time issued the guidelines for virtual court hearings to serve the timely and fair delivery of justice, which is fundamental in the democracy. Virtual hearing of cases will maintain the social distancing and avoid physical contacts which will prevent the spread of COVID-19.

Amidst COVID-19 crisis, the work of judiciary has stuck, and before the day of lockdown, Supreme Court suspended the entry of lawyers and other people in the court, and issued a notice under article 142,[2] that it will hear only urgent cases via video conferencing.[3] It is a good step by the apex court to attain the maximum functionality of the legal system even during this troubling time.

HC & Parliamentary committee view

Accordingly, High Courts of states too issued orders to the subordinate judiciary to hear cases via video conferencing.[4] Other countries including the UK, Brazil, China, Singapore, Bangladesh, Nigeria, Peru, Hungary, etc. have been hearings cases through virtual courts. During this lockdown, the Supreme Court of India emerges as a global leader. As it entertain over 5000 cases via video conferencing since lockdown. This is much more than the apex courts of the countries like the UK, Australia, Singapore, etc.[5]

Indian judiciary is doing well in virtual hearings of cases so far in the period of the COVID-19 crisis. But is it accessible to all, and does everyone have good technology to see and take part in the judicial procedure? In virtual hearings of the cases, everything is done in online mode. From the filing of a case to its hearings, arguments, and delivery of judgements. For all these processes, good internet connectivity is required and in the Indian context. There is no internet connectivity at every place and many regions are struggling for good internet speed; (e.g. remote areas, Kashmir etc).

According to the parliamentary committee report, the digital literacy barely touched 1.67 percent of the population[6] and it will be very difficult for them to have access to virtual hearings. Also, another view is that the virtual hearing of the cases annihilates the principle of open courts[7]. Public trials in an open court is necessary for the healthy, objective, and fair administration of justice and it is fundamental to our democracy[8] which enables public, press to attend the court hearings as a spectator, reporter etc.

Advantages and Disadvantages of Virtual Court Hearings

There are many advantages of the virtual court hearings as it available at any place. These are as follows:

• Bringing virtual courts or e-courts will be efficient, transparent, time saver, etc.
• Also, save the environment to an extent as it will reduce the use of paper and information will not be misplaced.
• Reduce the backlogs of the pending cases and reduce the corrupt activities and save the transport charges.
• Case information will be easily accessible with internet connectivity.
• Lawyers can file, argue, etc of the cases from their home or office.
• Easy for witnesses as many times witness is vulnerable to reach to court.

Like advantages of the virtual court hearings, many disadvantages are there. These are as follows:

• E-courts is a complicated process to understand.
• All the documents and evidences cannot be produce digitally. The facial expression and body posture can’t be recognize properly.
• Lack of internet connectivity and digital infrastructure. Also, the speed of the internet is not the same everywhere so the issue of audio or video may affect and voice hindrance may happen during proceedings.
• Chances of technical failures or glitches during proceedings.
• The issue of hacking is rising and getting stronger day by day.

Way Forward

Indian judiciary is doing good in this crisis by holding the hearings via the online mode of urgent cases. Right now, to begin the physical court hearings would put the health of lawyers, judges and other staff of the courts in danger. It is to avoid any kind of dangerous situation which may arise in this COVID-19 crisis due to spread of the virus. The virtual hearing is the way to ensure the justice delivery system continues to functioning. But will virtual hearings of court prove to be effective after the COVID19 crisis?

 The chief justice of India said that “these challenges provide an opportunity to move towards the new era and conduct the hearings via electronic means, enabling citizens to access justice without being present physically in courts.”[9] But there are many issues with this mode of hearings. Supreme Court Bar Association pass a resolution urging that after COVID-19 crisis and lockdown. The virtual court should not replace the open court hearings as there is no openness and transparency in the virtual model.[10] The Chairman of Bar Council of India in a letter to Chief Justice of India said that; there are 90% of lawyers and judges who don’t know this technology or unable to handle this technology. If the court decides to continue with virtual mode then many lawyers will be outdated.[11]

Another concern about the virtual courts is that, in the view of speedier justice through digital mode, the quality of justice may deteriorate and many legal issues like producing witness, the identity of witness and issues like cybersecurity may arise.[12] So to looking forward to this mode, these issues can be taken into consideration.

Conclusion

In an era of digitalization, a virtual court hearing is the need of an hour, and it will save the precious time of judges and advocates, reduce the use of papers and reduce the overcrowding in the courts. But to continue this mode of hearings after COVID-19, this technology should be accessible to everyone, and the judiciary has to take certain revolutionary steps and improve this mode so that no lack can be seen in it. To adopt the new generation technology injustice system the first step must take very concrete.  

---

References:

[1] Supreme Court of India, Monthly pendency report, available at https://main.sci.gov.in/statistics, accessed on June 17, 2020

[2] Article 142, Constitution of India, 1950

[3] “Supreme Court comes up with new guidelines for hearing matters from 18 May to June 19”, The Economic Times, May 17, 2020. Available at https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-comes-up-with-new-guidelines-for-hearing-matters-from-may-18-to-june-19/articleshow/75789009.cms?from=mdr

[4] Bhandra Sinha, “Supreme Court could opt for combination of physical and virtual hearings after summer break”, ThePrint, June 14, 2020. Available at https://theprint.in/judiciary/supreme-court-could-opt-for-combination-of-physical-and-virtual-hearings-after-summer-break/441503/, accessed on June 17, 2020

[5] Dhananjay Mahapatra, “SCI emerges global leader in virtual court hearings during lockdown”, The Times of India, (June 16, 2020). Available at https://timesofindia.indiatimes.com/india/sci-emerges-global-leader-in-virtual-court-hearings-during lockdown/articleshow/76396775.cms#:~:text=NEW%20DELHI%3A%20India’s%20three%2Dtier,cases%20through%20virtual%20court%20hearings., accessed on June 17, 2020

[6] “Digital literacy drive barely touched 1.67 percent population: parliamentary committee report”, News18, (February 6, 2019). Available at https://www.news18.com/news/india/digital-literacy-drive-barely-touched-1-6-percent-of-the-population-parliamentary-committee-report-2026819.html, accessed on June 16, 2020

[7] Pramod Dubey, “Virtual courts: A Sustainable Option?”, Bar and Bench, (April 20, 2020), available at https://www.barandbench.com/columns/virtual-courts-a-sustainable-option, accessed on June 18, 2020.

[8]Naresh Shridhar Mirajkar and Ors. vs State of Maharashtra, 1967 AIR, 1 1966 SCR (3)

[9] R. Balaji, “Era of online hearings on Supreme Court table”, Telegraph India, (May 15, 2020). Available at https://www.telegraphindia.com/india/era-of-online-hearings-on-supreme-court-table/cid/1773056, accessed on June 18, 2020.

[10] Sriram Parakkat, “The doors of justice shall be kept open: A case for continuing virtual hearings even after the COVID-19 lockdown”, Bar and Bench, (April 26, 2020). Available at https://www.barandbench.com/columns/the-doors-of-justice-shall-be-kept-open, accessed on June 18, 2020.

[11] Shruti Mahajan, “Continuing virtual hearings after lockdown impractical, 90% lawyers, judges unaware of technology: BCI chairman writes to CJI”, Bar and Bench, (April 28, 2020). Available at https://www.barandbench.com/news/continuing-virtual-hearings-after-lockdown-impractical-90-lawyers-judges-unaware-of-technology-bci-chairman-writes-to-the-cji, accessed on June 18, 2020.

[12] Risha Kumari, “India: COVID_19 urges courts in India to go online: Pros and cons of court hearings via video conference”, Mondaq, (May 21, 2020). Available at https://www.mondaq.com/india/operational-impacts-and-strategy/938322/covid-19-urges-courts-in-india-to-go-online-pros-and-cons-of-court-hearings-via-video-conference#:~:text=Other%20concerns%20of%20the%20virtual,court%20and%20cybersecurity%20issues%2C%20etc., accessed on June 18, 2020.