Author: Komal Agrawal, III year of B.A.,LL.B. from KIIT Law School, KIIT University, Bhubaneswar
The concept of virtual court has been central to the legal world & has influenced the Indian Courts & judicial system enormously amidst the Covid-19 pandemic. In fact, in the present scenario, any aggrieved person can access justice around every corner of the country. Virtual courts can be defined as the court system where all documents & proceedings related to the ongoing case can be recorded electronically & the arguments can be heard via video conferencing. When the nationwide lockdown was ordered, it was evidently not possible for the courts to be effective & continue with the physical submissions & hearings. But in any way, justice was to be delivered because “Justice delayed is Justice denied”. The pandemic posed a huge threat to the Indian judiciary system initially. All courts were ceased from operating in addition to the heavy backlog of cases crippling Indian judiciary. Therefore, the virtual court concept was adopted, where subsequently, the Supreme Court (SC) strongly provided shield to its ‘virtual courts framework’, and observed that the institutional prerequisite was to guarantee the ‘administration of justice’, which shall not disintegrate despite the pandemic. This article focuses on the opportunities available to & challenges being faced by the virtual courts in India.
Courts - A service or a Place?
After a transition to the virtual courts, people started debating over whether the courts are a service or a place. If courts are to be taken as a service then the Indian judiciary system can deliver justice by continuing with the digital realm while if the same are to be taken as a place then proceedings through virtual realm do not seem to be a constructive idea in long run.
But the situation worsened when some of the significant legislations like Civil procedure Code (CPC), Code of Criminal Procedure (CrPC) and General Clauses Act, 1897 does not define the “Court”. But the legal acronyms of the Legislative Department defines “Court” as a place where justice is administered while Black’s legal glossary defines Court as a governmental body that consists of judges for the settlement of disputes. Though the courts have different meanings, they point towards two similar components that clarifies our question of whether courts are a service or a place; firstly courts are the government bodies consisting of more judges and secondly the purpose of establishment of courts is to deliver justice.
Henceforth, a court showcases more of a service characteristic than that of a place. The concept of virtual courts is not a new phenomenon but just that it has been more highlighted owing to the global pandemic. So, virtual courts have become a necessity to deliver justice as a service as courts do not need a place to provide justice.
According to the 103rd Report of the Rajya Sabha on Functioning of Virtual Courts/Court Proceedings via Video Conferencing, several opportunities & challenges were announced while accepting the new concept of virtual courts.The report was presented by the Department-related Parliamentary Standing Committee On Personnel, Public Grievances, Law And Justice.
It is a matter of fact that no other system of courts can ever replace physical courts because physical courts administers justice on a fundamental theory of open court laid down in the Indian Constitution. The President of the Supreme Court Bar Association was of the view that the virtual proceedings by the Supreme Court was nowhere near up to the mark & was extremely dis satisfactory.
The virtual court system created a situation of digital divide in the use of digital platform by making justice beyond the reach for the bulk of the population. It was observed that most of the advocates & legal professionals residing in rural areas lacked proper network connectivity and outworn audio-video equipment which is an essential requirement to participate in the virtual hearing of the cases.
The Committee notified that most advocates do not possess the required digital knowledge of the technology and owing to their technological incompetence, they showed a major concern that this might put them in an unadvantageous position over those advocates & professionals who have adequate digital literacy & no network connectivity issues.
Besides technological issues, there are significant issues like cyber security & data breach in India. The committee informed that the virtual courts can lead to exposing privacy & revealing the confidential information. There ain’t any law that guarantees data security as Indian Courts gets aid from apps like Cisco, Vidya which stresses a risk towards privacy of data.
There will also be very high chances of presenting false testimony of witnesses & malicious evidence to dislocate the facts of the case. The testimony of witnesses allows the court to investigate the details relevant to the case & examine the testimonies provided by witnesses along with their acts & gestures which enables the lawyers to detect the true facts. In virtual medium it is easier for the parties to mislead the courts by testifying falsely & presenting false evidences.
The chief advantage of virtual court system is that it is easily accessible, affordable with minimal or zero cost of need for travel. It is both cost saving & time saving as hearing takes place at intervals & there’s no need for lawyers to assemble in a single venue before hours. There are various cases where hearing is not necessary & such cases can be disposed off by cutting down unnecessary costs & time. So, Virtual courts can also help in dealing with the problem of backlog of cases by disposing the cases according to the specific needs. The virtual courts system is more flexible as lawyers & advocates can conveniently present arguments for more than one case a day without any need to travel. They can be present in the hearing even from their place of work. Therefore, justice can be delivered faster with resources in virtual court system.
Post Pandemic Future of Virtual Courts
After discussing various challenges & opportunities in virtual court system, it is quite evident that virtual court system is the need of the Indian judiciary to administer justice even in the wake of Covid-19. But the question is whether virtual court system is a permanent substitute of physical courts ? Justice D.Y. Chandrachud said that in the near future, virtual courts are not going to replace physical courts & that the scope of virtual courts shall be extended & should be more standardized all over the nation. Also, the legal & professional ethics are to be applied while the court proceedings. In no case, the discipline & integrity of the court should be compromised.
The Supreme Court can also opt for a mixture of both virtual court & physical court system. It could allow the courts to squeeze more benefits of the best of both system - saving costs and time, flexibility in addition to maintenance of fairness & ensuring justice and prove advantageous to both the public & Indian Judiciary.
The Indian Constitution incorporated the doctrine of Rule of Law to ensure access to justice by every citizen. Justice, shall in no circumstance, be denied to the general public. To survive in this global pandemic & allow the courts to function, a new system of virtual court hearing was developed. Undoubtedly, many scholars and legal professionals have extended their support to encourage & accept the virtual court system and to continue eventually after this pandemic ends. After discussing both challenges & opportunities it would not be unfair to say that the opportunities outcasted by virtual framework of hearing cases supersede the challenges & could be made a better service by bringing required changes.
However, this digital court hearing framework must be kept temporary & be limited to the current pandemic. The open courtrooms for administering justice cannot be substituted by the digital court hearing. The virtual courts cannot become a norm as they have to perform their functions physically after the normalization of the situation. Accepting virtual court as a norm would would manifest that the building in which we sit & deliver justice should be closed down. Though virtual court allows the litigants to seek justice at a very minimal cost but that would go against the basic principle embodied in Indian Constitution & undermine the fundamental doctrine of Rule of Law. It would also go against the provisions enlisted in Indian Penal Code (IPC) and Code of Criminal Procedure (CrPC) which promotes open courts delivering open justice. The 18th century English Philosopher Jeremy Bentham quoted, “The courts shall be open for the public to enhance public confidence in the justice delivery system”. Therefore, virtual courts are to me made limited only to the length of the ongoing crisis in view of the administration of justice, integrity & majesty of open court hearings.
https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/18/125/103_2020_9_16.pdf, Submitted to National Law School of India University, Bangalore