Due to the COVID-19 outbreak, the whole world including India had gone into lockdown. Even the courts were shut down for a while in March when directed by the Supreme Court of India. The centre and the state governments had put down restrictions that made it difficult for the courts to function. As in the Anita Kushwaha v. Pushap Sadan1 case, it was declared by the Supreme Court, “It is the constitutional right of rural (and other) citizens to ‘Access to Justice’ under Article 14 and Article 21 of the Constitution of India”. The courts have found a way to prevent human interference and still work exceptionally. Several courts were largely shut down, and only urgent hearings were being held. A few states permitted open courts to operate with partial hearings, but this was terminated due to an increase in cases, and virtual courts were fully implemented instead.
The pandemic paved way for the judiciary to work in virtual mode to prevent the contagiousness of the virus. However, India had its first virtual court in Faridabad. The Supreme Court Vidhik Anuvaad Software was unveiled by the President of India on November 26, 2019, and it has the ability to translate legal documents from English into nine regional languages and vice versa.
The Supreme Court of India’s official multilingual mobile application will also be made available to give lawyers and litigants precise real-time access to case status, review screens, judgments, daily orders, etc. Although the judiciary has seen several technical advancements, such as the ability to record testimony through video conferencing2, the ongoing Covid-19 pandemic has had a severe impact on virtual courts.
Positive impacts of the virtual courts
In the wake of the pandemic, the virtual courts have come to the rescue to deliver justice and continue the proceedings of the cases. They have become a mode of advancement of the judicial system through technology. The virtual courts have helped to maintain social distancing and decreased the risk of exposure to the virus.
The judges, counsels, and parties of a proceeding are joined in a video conferencing website within the given time. This process reduces the chances of corruption and brings more transparency. The cost-effectiveness allows people to approach the courts, since, the parties wouldn’t have to travel every time. These courts are also known as E-courts and e- justice is considered to be a stepping stone to e-governance. e-courts make it easier to achieve a number of goals that will aid the judicial administration in the allocation of cases, reduce litigation delay and cost, contribute databases, guarantee e-filing and e-notices, and make witnesses available through video conferencing, create digitally signed court orders, and digitize ADR. Thanks to technology, the open courts in many nations are able to function and serve as a medium to safeguard citizens’ rights throughout the pandemic.
Virtual hearings are used to safeguard the safety of the witnesses too. Court workflow management has been successfully automated with the use of virtual courts. As a result, it would contribute to improving the administration of courts and cases. This also gives the litigants ability to attend the proceedings from their office or home.
The court’s ability to operate around the clock is one of the main benefits we’ll have in the future too. There is a massive backlog of court cases, and a prolonged wait for justice causes residents to lose faith in the legal system. The method will gain momentum as a result, and cases can be decided in a timely way.
Virtual Courts versus Open Court
With the ongoing trend of the virtual courts, a very important question has been raised i.e., whether the virtual courts would replace the open courts. Many bar associations across the nation, from the Supreme Court Advocates-on-Record Association to the Gujarat High Court Advocates Association, have acknowledged the challenges experienced by attorneys during hearings through virtual courts.
It was also stated by Justice D.Y. Chandrachud that virtual courts can’t completely replace open courts. The first reason is that many advocates don’t have access to the internet in many areas and India is still in the process of technological development. High-speed internet isn’t available in all the areas all across the nation.
Secondly, many advocates don’t have the basic proficiency in technological skills which can be said as a major drawback since it would be difficult for them to shift to the virtual proceedings.
Thirdly, the current state of our legal system prevents the adoption of the idea of virtual courts because even an open court system cannot handle the massive backlog of unresolved cases. Fourthly, despite the fact that virtual courts and the open court system are not mutually exclusive, people’s privacy has not been respected. The legal system is geared toward litigants. It is particularly challenging for litigants, who typically hail from rural areas, to comprehend that their case is resolved without their attorney being in court. Although some attorneys may feel at ease in virtual courts, the clients still are not prepared. Justice consumers have been completely disregarded throughout the process.
Fifth, the people of India, whose cases have been languishing for long years, lack confidence in the current system.
Sixth, affluent law firms, corporations, government agencies, and legal tycoons may be able to take advantage of virtual courts more so than regular attorneys. Therefore, even if the Supreme Court intends to permanently establish virtual courts in India, it should have started by providing technical training to the lower judiciary, specifically the district courts and taluka courts at the bottom. The people’s trust must be earned at the grassroots level. If they are content, moving on to the next level would be simple.
It is very appreciable that the Apex court is understanding and putting in efforts to improve the grass root level problems if the virtual court system comes into play. However, litigation plays a crucial role in the judicial system. Judiciary being the strongest pillar of democracy, has the obligation to safeguard the litigation process in India. Due to these few issues, it can be very difficult for virtual courts to completely replace open courts. The clients of the advocates invest their trust in them and the advocates might find it a little bit difficult to connect to their clients and find proper information in online mode. Along with this, the virtual court system has its own challenges.
Infrastructure: India does not have the complete infrastructure to completely depend on the online mode. The most problematic thing is the bandwidth. Also, the video conferencing apps have third-party interference which may lead to the breach of data i.e., data privacy lacks here.
Information Technology Infrastructure: The new evidence legislation concerning electronic evidence is still in flux and has not yet been finalized, as evidenced by the assignment of the question of the application of Section 65B of the Certification for the Admissibility of Electronic Evidence to a wider bench3. In circumstances of electronic filing and data storage, it raises the worry of tampering with paperwork and paper records.
Practical issues: If it is properly accessed by the citizen, virtual courts are an endeavor by the judiciary to convince the public that we value their time. Statistics lead us to conclude that our Indian lawyers lack the necessary experience in this field, and their law degrees don’t necessarily prepare them for it. There is no mention of access for those without internet connectivity. Even the fact that up to 50% of Indians lack Internet connection seems to be overlooked. Despite having the second-highest percentage of Internet users in the nation, that is.
Some may contend that even someone without access to the internet should go to someone who does and use it, which is unquestionably preferable for a rural resident than going to a distant court. However, the internet gap continues to be a significant barrier for the majority of individuals to access or understand virtual court hearings.
The Supreme Court ruled in Naresh Shridhar Mirajkar v. the State of Maharashtra4, that all claims presented before the courts, whether civil, criminal or other, must be heard in open court because “Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice”.
In Swapnil Tripathi v. Supreme Court of India5, the Bombay court held that only the cases with urgency would be dealt with due to the wake of the pandemic in the month of April 2020 and dissented on granting the bail which was filed under section 439, Cr.P.C6. There were 2 issues that were understood via this case. First, it was claimed that only urgent bail cases are being decided by the courts as a result of the epidemic location. Second, giving the applicant bail would put both his life and the lives of others in jeopardy because he might not be able to return home because of the lockdown. In order to avoid these scenarios, he was not granted bail. Though it is something to consider, there should be no doubt that the fundamental rights of a person seeking legal assistance have always been maintained in the legal system. If even one person’s well-being is hampered by the court’s conclusion, the judgment is open to public review.
The wake of the pandemic has paved a new path to the development of the judiciary through technology. The virtual court system is accessible and cost-effective. It also helps to curb social evil i.e., corruption in the judicial system. The travel burdens would be reduced for the people who have to approach the court. However, there are more than equal chances that these courts may not be permanently reliable as India is a developing nation, it still lacks technological advancement and there are people who are poor in understanding the working of the technology. There is a high possibility that the parties might not be having high bandwidth in their localities. Also, it is important to ensure that the virtual court systems shall be user-friendly and it can be said that, with the given situation in India, it would be impossible to rely completely on the virtual court systems as there are many challenges present with that respect.
- (2016) 8 SCC 509.
- State of Maharashtra v. Prafulla B. Desai (Dr.), (2003) 4 SCC 601.
- The Indian Evidence Act 1872, s. 65(B).
- (1966) 3 SCR 744.
- (2018) 10 SCC 628].
- The Code of Criminal Procedure 1973, s. 439.
This article is written by K. Mihira Chakravarthy, 1st year BA LLB student from Damodaram Sanjivayya National Law University (DSNLU).