Working together or alone has become independent of time and place and it hardly matters where we are. We cannot imagine life today without the free communication tools and without the internet. Life is going to change and is never going to be the same again post-COVID. The pandemic has affected the health and economy of people of all the sections in India. It has caused us to change our mindset and we have no choice, then to accept this change. Distancing is the new rule everywhere in the world. The country is in a crisis but this can also be turned into an opportunity.
The world has adapted the new scenario by working from home, conducting meetings through Skype and conferences by Webinar and Zoom.
The judiciary is also not untouched by the rapid development in information and communication technology. Even though the physical courts have ceased to function and have stopped advocates from coming to court, important matters effecting the life and liberty of citizens are being adjudicated by courts using video conferencing from virtual court rooms.
Earlier, the procedure before the courts was dominated by paper files, hearing persons in courts and the written exchange of documents. This is a prolonged procedure in obtaining a decision from the court. Recording statements of all the witnesses is mainly the tedious task in a court proceeding. But this has changed now and as a solution to this, Indian courts have started to incorporate the aid of internet applications at an increasing pace. Video conferencing is the most important centre of this contribution.
Months ago when anyone would click a photograph in the court or record a video, he would be thrown out of the court and would likely be thrown in jail. If a person was caught doing such acts, he/she could be charged for contempt. There was a strict ban on photography and recording in the court premises. Previously, a Supreme Court judgment came out that states that it was “open to explore the possibility of live streaming”.
The Constitution itself does not mention that the proceedings should take place in an open court. Conversely, Section 153B of the Civil Procedure Code and Section 327 of the Criminal Procedure Code prescribe that the hearings should be accessible to the common public. However, the court did not ever order live streaming or even a recording on a regular basis, or permanently.
When the pandemic hit India, Chief Justice Sharad Bobde decided that justice should not be kept in abeyance and online courts should begin functioning. The Supreme Court then exercised its absolute power under Article 142 to direct all the high courts to frame a mechanism for the use of internet technology during the pandemic. The main purpose of the concept of online courts was to enhance judicial productivity and to make the justice delivery system- affordable, accessible, predictable, cost-efficient, reliable and more transparent.
After the Bombay High Court, the Supreme Court and other high courts have heard numerous matters, via video conferencing. Originally, the law requires identification of persons, signatures, sending documents or a personal appearance, and it is a very crucial question whether persons are allowed to appear via means of a video link. Video conferencing is one of the greatest advantageous products of this age and it has allowed audio and visual communication between two or more persons at different locations. Evidence can be presented before the courts by the means of video conference. The main factor of opting for video conferencing is that it should only be used for delivering justice and should not cause any kind of inconvenience to the witnesses. The use of video conferencing is looked as justice in the form of digitalization, which is a form of virtual justice being delivered.
Virtual Court: A Closed Meeting?
Covid-19 has played havoc in the lives of people all over the world and also had a profound effect on everyone and in every sphere of life. The courts have ceased to function like before. These courts have always attracted crowds. We cannot restrict the number of crowd we have i.e. supporting court staff, litigating lawyers, clerks, munshis, judges and assistant to judges. There is large paraphernalia of personnel who are required anytime to conduct the court proceedings.
Considering the pandemic could last for quite some time, the Supreme Court ordered on all the levels to direct the lawyers to file cases or arbitrate disputes online. It is also encouraging the judges to make a proper use of online systems for lawsuits and to ensure enhanced legal services and security.
The questions of concern are – under what circumstances should there be a virtual hearing, in what kinds of cases, how should these be conducted and in what other way to use the technology effectively. How the dignity of the court will be maintained and that the cause of justice is served.
According to old school policy makers, virtual courts cannot be a substitute for actual live courts. But in certain circumstances they can step in to fill the gap. Therefore, we must use the technology in an exceptional manner.
It is true that video conferencing could be a cost saving measure in some circumstances. Video conferencing in court includes some pre trial hearings and arguments on motion. During trials, some witnesses also are permitted to testify before judges via Skype or Zoom or Webex. In family courts, the law allows domestic violence victims to appear in some circumstances by video conference to issue an initial order of protection. Appearing by video conferencing has already been happening in Indian criminal courts. Since the start of Covid-19 pandemic, the Indian court system has tried to address how to have appearances online. Now, routine calendar calls and pre-trial conferences are daily occurring by video conference. Bail hearings are also being conducted. The judgments delivered and the decisions of the courts will be available in the public domain but the attending of court sessions by interns or other subordinate lawyers in each case will not take place during the online hearing or trial in any case.
Challenges and Risks
The number of cases in courts is increasing on a daily basis. While the communication is anyway limited in open court hearing, the possibility of the same to happen in video conferencing rooms would be negligible. Along with this, the weak socio-economic demographics of prisoners and lack of familiarity with technology, video conferencing would act as a barrier, further reducing the possibility of conversation between the accused and the judge. The virtual courts may seem a necessity but there are a whole lot of glitches and shortcomings in its execution. The most primary is the e-filing process which is riddled with many complications. Cyber security is a huge concern too. The non-availability of electricity and internet connectivity in remote areas and villages is another problem that cannot be ignored.
If e-trials are permitted in India, some constitutional rights of the criminal defendant which have to be protected. The use of digital files should be hassle-free and the lawyers and judges should entail the minimum risk of infecting the user.
One constitutional protection could point to the odds of online trials- the right to a speedy trial. But mostly affected are those who are already in pre-trial detention. Any defendant cannot be held interminably in anticipation of trial. Yet many other constitutional protections mitigate against having trials online. The most important one is the right to due process of law. Due process means the legal requirement that the state must respect all legal rights that it owes to a person and provides constitutional protection.
Slow internet connection and poor technology for defendants in jail could limit the defendant’s ability to observe the proceedings. Another adverse impact will be on defendant’s right of counsel.
If a defendant and his/her lawyer are not together, how can a defendant effectively communicate with the representative? The defendant has the right to confront the witnesses and evidence. Unlimited time for arguments will no longer be available to the litigants. In result, it can increase productivity and avoid over crowding in courts and an endless wait for litigants and lawyers.
It can be contemplated that cross-examining through on online platforms will have its own ramifications using uncertain thoughts on the veracity, sanctity and statement of the witness. The real challenge is for the high courts and district courts as digitisation could be a challenge for them. However, it is somewhat easier for the appellate courts to acclimatize to digital.
With video conferencing during court trials, since the view of the accused is partial, therefore it will be problematic to ensure if he is under any duress or intimidation or if he is injured or else constrained from participating freely in the online court proceedings. An inability of the lawyers to cross examine properly increases the risk of error since cross-examination is the greatest tool which is used to determine the truth.
Delayed streaming may also interrupt in detecting facial expressions and reactions. Physical presence serves important gestures and facial expressions during cross-examination, which eventually leads to breakthrough the truth. It is also vital to communicate the degree of reprimand and denunciation the crime deserves, to the community at large, which ultimately adds to the deterrence of punishment and abstain people from committing the crime. Many people do not have any form of digital literacy or even a simple access to internet.
Another concern is that the accused has no opportunity for immediate or legal consultation with his representative during video conferencing. Any consultation would not be possible if the lawyer is on video conferencing and not physically with the accused.
The trial will completely depend on the smooth functioning of the video conferencing equipment and internet connectivity. All these need to function properly at every end. This can facilitate free communication between all the parties. Any technical fault while the video trials are going on would impact the quality of the hearing and may possibly jeopardise the trial. Moreover, the quality of images and the manner of recording also has impacts on the belief on truthfulness or falsehood of the statements of the accused. The clarity has to be good as if all the members necessary for the trial were in court.
In order to ensure accountability, a daily checklist for quality check of instruments should be maintained. The Indian courts appear to be increasingly inclined to allow the judicious and efficient use of communication technology. Modernization of infrastructure and the advancement in technology can help better harness the expedient facility in courts during this pandemic.
Can Open Court Hearings be Replaced?
Some policy makers, advocates, judges, enthusiasts and influencers fancy that court hearings should be conducted via video conferencing even after the situation normalizes. The rationale behind it is the availability of new technology through which there will be an access to justice for people everywhere in the country.
Whereas there are many others who are firm of the opinion that video conferencing cannot actually substitute open court hearings, because the fundamental principle of justice is that courts must be open to the public as specified under Article 145(4) of the Indian Constitution. It is believed that the principle of open justice represents a facet of autonomous answerability, and the dynamic expression of the principle of freedom of expression. In short, it innately supports the rule of law.
Similarly, Jeremy Bentham observed that publicity is the very spirit of justice. Therefore, the concept of open courts is important to maintain the public confidence in administration of justice. The public should be able to enter all the courts to see that justice is being done. It is a universal principle that all cases that are brought before the courts- civil or criminal must be heard in an open court. It is also believed that public trial in open courts is fundamental for a fair and strong administration of justice. Public buoyancy in the administration of justice is of great significance. Open court hearings are believed to be sacrosanct and therefore all trials are better held ostiis apertis, that is, within open doors. This is an express guarantee of civil liberty according to Hallam and the checks of judicial justice can be found only in open courts. This leaves less room for fallibility. Accessing justice is always incomplete without the litigant being able to see, hear and understand the course of proceedings first hand. It is so because a court of justice is a public forum. Open courts foster public confidence and ensure that the judges are not biased. It is true that technology will stay with us but its use should not undermine the basic canons of natural justice and rule of law. Virtual court can only be a bonus mechanism if and when physical distance of the person seeking justice is obstructed.
Some legal scholars and policy makers are also of the opinion that future hearings should be a combination of physical courtroom proceedings and virtual courts. The courts should be functioning paperless now and a step-by-step guide will be available on the portal to explain all the legal procedures. The pandemic has thrown various challenges at us and we must use technology as a force multiplier. The legal world must move ahead with the remaining world, we cannot stand still and do nothing. Online courts are inevitable after the pandemic ends. Access to justice via online court will provide the new digital equality to all sections of society on the same platform. It is true that the internet is a privilege for few but this problem needs to be resolved steadily. For this, the government must educate and endow the public. Indigence and illiteracy are the antithesis of an egalitarian society. We need to cultivate a new judicial culture for the people at large. Digital courts can scrutinize the monopolisation of the amenities of Indian judiciary. This will ensure efficient services provided to the needy at a drastically reduced cost.
It will be an injustice to the judicial system if we do not adapt with the need of the hour. The judiciary could fall behind times when every sector is trying to transition them to a contactless platform.
But while considering proceedings on video conferencing, there should be exercised great caution and justice must be served same as in open court. Technology should be applied by the judiciary for its implementation to reduce in limbo cases, faster disposal and the proficient management of cases. These scientific innovations in the administration of justice must be enacted in a progressive, prearranged and phased method, along with all the measures to ensure that there is a holistic achievement of the theory of open court hearings. Virtual courts proceedings should not meddle with the administration of justice or the decorum of the open court hearing or restrain the rights of the advocates or witnesses. The court proceedings should be subjected to public scrutiny and only on moral grounds, public order or matters of national security in a democratic society, to the extent necessary the public and press should not be a part of the trial. To ensure transparency, live streaming of the court proceeding should be broadcasted world over.
Trials will be shorter and effectively managed with all parts of the system clear on what is expected of them. There will be no-adjournment culture anymore. The cases will go ahead on the day they are planned. There will be a faster and less erratic system.
As technology use is stepped up, training sessions should be conducted to familiarise the judges and lawyers with the online courts framework for its success. Seminars and talk shows should be conducted to spread the awareness of e-courts to ease the facilitation of the courts. The government must ensure that there is adequate internet facility available in every district in the country, since major litigation takes place in lower courts. The establishment of India’s online courts have become one of the several revolutionary developments in legal sector. The digitisation of the court system is imperative to serve as the foundation and catalyst for improving its efficiency and also to keep pace with public expectations of justice. There will be less risk of misfiling and the documents will always be retrievable. It will also reduce paper, printing and storage costs. Online digital files are easily searchable, retrieved and shared.
Our judicial system needs to have the “can-do” spirit in respect of infrastructure development. Justice can be dispensed exclusively without the interface of the court as a physical entity.