Ever since the outbreak of COVID-19, and being considered as a ‘health emergency’ by the World Health Organisation, various nation-wide lockdowns have been enforced in India. These lockdowns have affected various sectors of the country including the legal sector which has resulted in temporary shutdowns of the Supreme Court and High Courts. To combat the crisis and to serve uninterrupted and continuous justice, the Supreme Court laid down some guidelines for the usage of technological advancements in the various levels of the justice serving institutions. The Court observed that the transition towards the mode of video conferencing will help in providing justice temporarily and might become an established method when looked at from a future perspective.
The Apex Court laid down the guidelines amid the lockdown in the form of an order. A three-judge bench was involved in issuing the guidelines which consisted of CJI Bobde, Justice DY Chandrachud, and Justice L Nageshwara Rao. Article 142 of the Indian Constitution was invoked for the issuance of the guidelines. These guidelines lay down the measures which the courts are required to take to reduce the physical presence of litigants within the premises of the courts and to adhere to the guidelines of social distancing. The aforementioned order also directs the district courts to adapt to the mode of the Virtual Court system which would be prescribed by the respective High Courts and to provide facilities of video conferencing to the litigants lacking the required sources.
This article throws some light on the beneficial nature of video conferencing methods in the judicial system and the key challenges that stand in front of the way of this new trail of justice serving the system. Lastly, it also discusses the possibilities of this method being a concrete option for the future.
Issues and Challenges
The Chairman of the Bar Council of India recently sent a letter addressed to the CJI which opposed the use of virtual proceedings after the lockdown period. The reason stated was that there stands an enormous gap between the various resources that might be accessible for video conferencing and the e-filing process for the lawyers who come from a humble background mainly from rural areas or small towns. The letter highlighted the fact that many of the judges and advocates are unaware of the nuances of the technology and the ground reality is drastically different from the planned objective.
This Digital Illiteracy is a huge challenge for the implementation of the Virtual Courts. While trying to cope up with the demands of Virtual Courts, there becomes an imaginary distinction between the privileged and the underprivileged lawyers of the country.
This is one of the major challenges which need to be settled out for a better implementation of the Virtual Court method. With this obstacle, the article now digs deeper to extract and unearths the other various major challenges which will arise if the Virtual Court mode is adopted permanently.
The primary concern which stands distinctively amongst the others is the challenge of “open courts”. The principle of Open Courts is based on a presumption that the public can freely and fairly access the proceedings of the court, the freedom of speech and expression and the freedom of the press are the basic foundation of this principle. This principle essentially enables the public to attend the proceedings of the court as an observer, member of the press, or partaker.
In the case Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Ors, the Apex Court reaffirmed the significance of the Open Court principle. The court was of the opinion that the Open Court system of public trial plays a vital role in maintaining a fair, objective, and health administration of justice. It stated that “Trial held subject to the public scrutiny and gaze, naturally acts as a check against judicial caprice or vagaries and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice.”
The Principle of Open Court acts as a bridge between the public and various courts. This principle stands as a significant part of Natural Justice and is well-ingrained in Article 145(4), Section 153-B of the Civil Procedure Code, 1908, and Section 327 of the Code of Criminal Court, 1973.
This principle protects the right to freedom of speech and expression and the freedom of the press under Article 19. It is also specified that in limited and special cases prescribed by the law or if the court has the authority to regulate the proceedings of its own, only in these circumstances, the key principles of justice can be deviated but only to a certain minimum extent.
In this on-going mode of Virtual Courts where the Apex court and the High Courts are dealing with urgent matters, various advocates have raised their voices on the issue that the virtual proceedings do not adhere to the principles of Open Court, the principles play a significant role in the democracy and even in this crisis of the virus, this principle should not be compromised.
In the case of Swapnil Tripathi v Union of India, the Apex Court laid down some guidelines to live-stream the proceedings of the court. These guidelines should be put into implementation by the relevant authorities as soon as possible. The Supreme Court has also given its permission to Webcast the proceedings of a matter and these links will be generated by the Supreme Court Office and will be Password protected in nature. This method will only provide only a certain limited number of people to attend the proceedings but will adhere to the principles of Open Court to some extent.
Future Prospects and Suggestions
The aforementioned challenges like the infrastructure and non-accessibility of resources; and the desire of an Open Court system are some of the major challenges that are needed to be addressed for a better implementation of the Virtual Court system. This system though in this temporary lifespan, has proven to be beneficial and has showcased the possibility of becoming a permanent method in the coming years.
The Virtual Court System with an appropriate implementation will help in reducing the expenses of the court and the parties involved in the case will not be required to make a physical presence in the court. As it was also held in the case of The State of Maharashtra vs. Dr. Praful Desai, the word ‘presence’ can be interpreted in several ways and it does not only mean to be physically present in any court. To record evidence, a person doesn’t need to be physically present in a court. Evidence can be put on record even in certain conditions where the parties are living remote locations or if the case is confidential or if the witness believes that there stands an apprehension of danger to his or her life. This helps in reducing the travel time and makes the whole procedure cost-effective.
This system would also bring in better administration and would enhance accountability. The biggest advantage will be that this system will enormously help in reducing the backlogs of the pending cases in various courts. With the flexibility of the working hours in this method, a significant thrust will be produced which will result in an adjudication of several cases in a time-bound manner.
With the aforementioned beneficial nature of the Virtual Court mode, still, its future as a permanent method in the courts stands feebly until and unless the challenges discussed above are addressed. Here, the article now moves forward and presents some of the suggestions which can be adopted to make the system of Virtual Courts as a permanent option in the justice-serving system.
A committee should be set up by the Law Commission which would consist of various experienced technology lawyers, technology experts, Registrar of the Apex Court (IT). This committee should be headed by the present or former chairperson of the e-courts operation. The primary objective of this committee would be to understand and analyse reasonable ways to opt for a transition to the digital method of adjudication.
Cases should be categorised according to volume, nature, and estimated disposal time. The cases with a finite amount of advocacy and mechanical nature can be resolved through the method of Virtual Courts and some certain cases can also be resolved through ADR methods.
The legislature should also take necessary steps and bring up some legislation specifically dealing with the issues of accountability, reduction in delays, and data privacy.
This crisis has shown the ground reality that there is a dire need to redefine the boundaries of effective and modern lawyering. A transition to a digital model of adjudication will bring in several benefits and the possibilities remain countless. With these loads of benefits, many lawyers would see them as something which would make them lose their representation in the system but, there has to be a change in the mindset of the legal community. There has to be a uniform consensus within this community that the transition would be favourable to the legal system of the country when looked at the bigger picture. The ultimate objective behind this whole transition is to make justice accessible to those in need and reduce the burden of backlogs.
This article is written by Devansh Khandekar who is a student at NALSAR University of Law, Hyderabad.
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