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WHETHER JUSTICE CAN BE DONE VIRTUALLY AND ALSO BE SEEN TO HAVE BEEN DONE?
Author: Shreevidya Sudeep Nargolkar, Currently studying in Adv. Balasaheb Apte College of Law, Mumbai
Video Conferencing (hereinafter referred to as ‘VC’), an activity popularised in the wake of the novel Coronavirus, has not been an alien concept when looked through the perceptual lens of e-Governance reforms. According to reports, on 20th October 2020, a process has been initiated by Government of India as a part of the said reforms to procure 1500 additional Video Conferencing licenses costing approximately Rupees 9 Crores. The establishment also formed a part of the Phase-II of the e-Courts Project which strived at computerizing and bringing reforms in the justice delivery system. Albeit computerization and setting up e-courts are intricately linked, there exists a hairline difference between the objects sought by the two. Perusing Entry No. 11 A of List III-
Concurrent List under VIIth-Schedule of the Constitution, it is apparent that whilst the duty for computerization and infrastructural advancements of courts is the responsibility of State Governments, the administration of justice, intrinsic to Basic Structure Doctrine, falls on the shoulders the Union along with the State Governments vide Article 39-A. To deduce whether VC can be used for hearings in District Courts, the need for such categorization arises which further streamlines the topic at hand into two parts as follows:
(1) Whether VC can be a viable means to achieve the noble ends which are sought?
(2) Whether enough means exist/can be procured for attaining desired VC-hearings?
The first question squarely deals with the concept of e-courts and its efficiency and the second pertains to the infrastructural and financial capacity to endure the journey towards digitalisation of courts.
At the outset, it must be asserted that the current hardships faced by advocates w.r.t. VC-hearings are short-lived as the physical reopening of courts has commenced in the country. The viability of VC should be scrutinized keeping in mind the changes occurring in near future. Procedural law, much like substantive law, ought to be dynamic and evolve. The procedure should be such that the Judiciary is Capable of doing Justice and such Justice must also Be Seen to Have Been Done. A radicle opinion opposing dynamic adaptations was expressed in the popular Santhini’s Case  which overruled widely applauded judgment of K.Nagam v. H.Nagam. In the former case, the Hon’ble Apex Court deemed it unwise to encourage VC dispute resolution as it was perceived to be less likely to efficient communication and existent insufficient technological advancements. Howbeit, reports make it evident that in 2020 India had over 560 million internet users.
Prima facie, the opinion of the Hon’ble Court thus, stands in contradistinction with the current state of affairs as, during the 2020-Lockdown, people globally depended upon technological communication.
In 2011, the unusual hurdle was detected by the Bombay High Court about the VC-hearings. The unstable supply of electricity  rendered the viability of District Level VC-hearings dubious. Directions to the state were issued thereafter to improve the infrastructure. The problem of insecure and unstable electricity supply, however, remained unsolved.
It would be fruitful to note that the enforcement of Deviation Settlement Mechanism Regulations in 2014 (‘DSM-Regulations’)  the negate the drawbacks of Availability-Based-Tariffs. The said DSM-Regulations proved to secure uninterrupted supply of electricity and stabilize the Central-Grid. A cherry-on-top feature of the said Regulations is that they also apply to Renewable Sources of energy., Resultantly, stable electrical supply has percolated in the rural areas. The insecurities regarding the viability of VC-hearings hold no water anymore.
The e-Courts project is built on the foundation of Open Source Technology (‘FOSS’), which without any licensing subscription charges deploys technological assistance to the Courts. Whilst being cost-effective for system software purchase, savings of Rs.340 crores are made by the Exchequer. The leeway to High Courts for customizing periphery modules following state laws is also plausible. These modules are intended for State-level utilization for state judiciary and executive wings. Having said that, the Courts still use Third-Party interface/Apps for conducting the VC-hearings which is a major drawback of VC-hearings.
The use of Third-Party VC Apps has its string of potential threats attached to it, the most patent one being their vague and ambiguous Privacy Policies. The data is often stored on third-party data clouds, the obligations, and liabilities of which stay blurred till date and also lead to complexities regarding the jurisdiction of courts. The usage of third-party VC Apps thus remains the single-most crucial drawback of VC-hearings as the in-camera VC-hearings are rendered infructuous.
The Substantive Laws have undergone a sea of change, however, the procedural laws namely have seldom been amended. A question may arise, as to whether the VC-hearings can be deemed to be following law? Jurisprudence shreds of evidence answer the same in affirmative. A brief reference to the cases whereby the hearings via VC were held legally valid shall be made hereinafter:
In 2005, the legality of VC-hearings was upheld when the Hon’ble Apex Court held, “...in the case of Dr. Praful B. Desai and Sakshi v. Union of India we think the above requirement of the (Criminal Procedure)Code could be met by directing the trial by the video-conferencing facility. In our opinion, this is one of those rare cases wherein a frequent visit from the place of detention to the court of trial in Bihar would prejudice the security of both the respondent and others involved in the case, apart from being a heavy burden on the State exchequer…”
Furthermore, the Court in Atma Ram’s case upheld its decision expressed in Mahender Chawla’s case, Dr. Praful Desai’s case, Sakshi’s case and opined that examination of witnesses through video conferencing balances the interest of the accused as well as vulnerable witnesses. The inability to judge the demeanour of the testifier is the only plausible mishap. At this juncture, it is to be noted that witnesses belonging to weaker economic backgrounds often strive to escape testifying as witnesses as it leads to multiple appearances in court and thus, missing employment days. If VC booths with CCTV cameras are set up in every district, this flaw can be resolved as well. A secret e-ballot can be utilised to ask whether an accused or witness faced coercion, force, undue influence, etc. whilst testifying.
The High Court of Gujarat had also begun live streaming cases on YouTube App under the Doctrine of Open Court.  Similarly, during the 2020 Lockdown, the court had insisted to adjudicate over Juvenile Justice matters and those of national importance over VC. It is also apparent that on acquiring permission of both parties, recording VC-hearings has been permitted. The investigation has also been conducted through VC in the infamous Arnab Goswami Case. At this juncture, it can be stated that VC-hearings can be a viable addition to the Fast-Track, POCSO, Labour Courts as well as recording matters as mandated under the Atrocities Act and matters about bail applications, declaration of title deeds, motor vehicle accidents, etc.
A division bench of Justices VM Kanade and Nutan Sardessai on perusing authoritative reports observed that the cases against women atrocities are slow-paced as accused are not being produced in court. The HC administration submitted that the majority of the courts have VC facilities and accused can be produced before the court from jail on video conference. He further submitted the establishment of VC facilities was earlier being done on priority howbeit, owing to shortage of funds, the State of Maharashtra has been unable to set up VC facilities in 248 courts within the state. The bench reverted that the state does have adequate funds which are spent unwisely. According to the Hon’ble Apex Court , every court complex must, inter alia, consist of video conferencing rooms, utility blocks and IT Infrastructure for Computerisation of Courts.
This aspect of optimum allocation and utilisation of available funds is a question which falls into the second category and shall now be addressed.
According to reports all the States face the problem of acquisition of suitable land for the construction of residential quarters and court buildings was noted. The meagre funds allocated was cited as the paramount cause for the slow-paced infrastructural development. The expert committees suggested undertaking vertical constructions and to encourage e-Courts and VC-hearings. However, every infrastructural development has its limits even while considering vertical constructions. Alternatively, virtual courts can be set up and Infrastructural costs saved so saved can be utilised for the appointment of more Judicial Officers (‘JO’). Some JO can be assigned to adjudicate solely via VC-hearings. By continuing the current working of the online courts coupled with equally efficacious physical hearings, around 21,17,179 cases a month and approximately 25,406,157 cases are capable of being disposed of within one year.
In conclusion, the VC-hearings coupled with physical hearings in District Courts are not only plausible but the need of the hour and by optimum utilisation of available human, technological and financial resources, the efficiency of justice delivery system can be magnanimously enhanced. The efficiency of VC-hearings can be raised by infrastructural development and technological awareness. VC-hearings can be eased by the division of facts, documents, and scheduling First Hearings in parts e.g.: Appearance, Miscellaneous, setting of issues. The VC-hearings will also further lead to paperless litigation. The High Courts can set our Rules with immediate effect which shall enable district courts for conducting VC trials. As regards privacy issues, recommendations can be made to NITI Aayog for framing regulations regarding VC-hearings,.
VC-hearings cannot be a substitute for physical hearings,as Section 273 of CrPC ensures all evidence recorded during the proceeding to be in the presence of the accused. Furthermore, various provisions such as the Right to Refresh Memory u/s. 159 of the Evidence Act shall be rendered redundant as the accused can cheat. This obligation is cast on the Magistrates and it would be impossible for the Magistrate to ensure the protection of rights of accused through virtual courtrooms. Similarly, rights u/s 316 of CrPC can be infringed as the accused can potentially be subjected to threats for inducing him to disclose/withhold any matter within his knowledge. Provisions u/s. 313, 437 and 438 will also be rendered infructuous if hearings solely via VC-hearings are compelled. Nonetheless, a system of installing VC-Booths with CCTV cameras, voice tapings and secret e-ballot can be deemed as a solution to all these apprehended problems.
The practices followed by the Hon’ble Supreme Court and High Courts are drastically different than the ones followed by subordinate courts. The advocate has to time and again seek instructions from his/her client which can be a cumbersome process through online medium. Moreover, the oaths and testimonies of witnesses take place in the form of Affidavits under High Courts and Apex Court, unlike the lower courts. Thus, the swearing of witnesses and ensuring the protection of their rights is a huge hurdle.
Furthermore, cases involving dissipation of confidential or sensitive information should not be heard through VC until laws governing privacy rights are developed. The presence of accused witnesses, vulnerable witnesses with their legal counsels and Magistrate is thus, an inseparable aspect of a free and fair trial. On the flip side, for instances previously mentioned, matters of certain nature and also of particular prescribed stages can be conducted through VC-hearings. Lastly, the parties to the dispute may be asked to provide their consent on each stage of the case after educating them regarding the pros and cons of the virtual proceeding. Funding of Rupees 9 Crores seems sufficient to build the technological infrastructure necessary and to defeat evils withholding the smooth functioning of virtual district courts. As the UN-Lockdownbegins, a golden aeon of judicial reforms awaits India for Justice should not only be done, but it should be seen to have been done.
https://www.nampa.org/index.php?model=categories&function=display&id=20596285 : https://economictimes.indiatimes.com/news/politics-and-nation/virtual-hearings-govt-procuring-1500-additional-video-conferencing-licences-for-courts/articleshow/78746915.cms ; https://www.tribuneindia.com/news/nation/virtual-courts-govt-procuring-1-500-additional-licences-158422
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SC | A4 Size Paper Shall Be Used In Pleadings, Petitions, Affidavits, Or Other Documents To Be Filed In Supreme Court | SCC Blog