~ HARSH RANJAN & RITISH KR. UPADHYAY
INTRODUCTION
The year was 2020, with the outbreak of Covid-19 the wheels of justice came to a halt, millions of people seeking justice discovered the doors to courtrooms barred.
The founding fathers of the Constitution could never have predicted that one day the most important pillar of democracy will stop functioning physically.
But the courts have great responsibility; it can’t sit warming the chair of justice, so considering the unprecedented global outbreak of this virus and the rising number of cases in the nation, our justice system has taken a few astonishing initiatives to cope with the delay in justice delivery and to avert the spread of the virus within the walls of the country and the courtrooms.
Whole legal system in the wink of an eye switched to virtual mode, from filing of suits to court trials.
Virtual hearing is not a very new concept, when judges moved between principal seats and benches owing to a roster change, high courts across the nation adopted virtual hearings. However, such hearings are held in the court, with advocates debating their claims using the facilities provided in the courtroom.
WORKING OF VARIOUS COURTS ACROSS INDIA AND THEIR CHALLENGES
Due to the pandemic, courts have been closed unless there is an "urgent matter." But the irony is, the term “Urgent” is nowhere defined under the laws of the nation. There are over three crore cases pending in various stages in all the courts across the nation. Final arguments in criminal appeals or the delivery of a reserved judgement in those appeals can hardly be considered "urgent." What does this imply for someone who is incarcerated? He or she will stay in prison indefinitely because the case isn't "urgent"? Aren't their fundamental rights being violated (Article 21)[1]?
The Apex court exercised its plenipotentiary power under article 142[2]to direct all the High courts to frame a mechanism for use of technology during the pandemic. All the district and sub-divisional courts around the country are working as directed by their respective High courts with full efficiency. Even today, while the higher courts and their staff might have become digitally capable, advocates and their clients are yet to acquire the same proficiency. Also, most district and mofussil courts around the country have bare knowledge, infrastructure and equipment to swerve in virtual mode. To work virtually a good internet connection is very much essential, and courts are not well equipped with it and if so, then not necessarily advocates and parties will be. Even slow connections on any of the ends can delay the whole justice system.
ADVANTAGES OF THE VIRTUAL MODE
Virtual courts provide a tremendous number of benefits, opportunity for lawyers to argue from anywhere. Lawyers and parties spread across different states, and even countries, can file cases and argue their case from the comfort of their home. This provides the double benefits of cost saving and time saving. Also, it is easier for litigants to schedule an exact time for a hearing. Digital hearing provides unshielded witnesses to provide testimony from a secure environment. In addition, Virtual hearings are more commodious and less agonizing for children, women and victims of abuse and the differently-able who cannot easily attend physical hearings in courtrooms. Virtual court systems lead to greater productivity. Justice Chandrachud said, “The work of 20 judges is now being handled by one judge”.
Virtual hearing can also bring transparency in the working, recently the Gujarat High Court began virtual hearings and as well as live broadcast of all proceedings before the court's Chief Justice. As a result, anyone around the globe may watch the proceedings live on streaming apps such as YouTube. It could be incredibly advantageous to a client to be able to witness what is exactly happening in his case, how and what his learned lawyer is arguing under the roof of court. Clients can determine whether or not their designated advocate is adequately representing them.
DISADVANTAGES OF THE VIRTUAL MODE
Despite all the above-mentioned benefits there are some disadvantages too of the virtual justice system.
Virtual courtroom may be more strenuous for a judge to control than a real courtroom. Judges are unable to see what is going on behind the screen. In recent times advocates have been found eating, smoking and in improper dress code during court hours which is totally against the decorum.
While most court proceedings are accessible to the public, trials without a jury normally include only the judge, the parties, and the advocates but when you use a service like Zoom or google meet, the children, relatives, and anybody with credentials may watch. This is especially crucial when sequestering witnesses. In a physical court, the judge can order witnesses to remain outside the courtroom until it is time for them to testify. When you hold court remotely, it is very much difficult to enforce the regulations.
In addition, with data security and the threat of hacking being a major concern amid increasing dependency on technology and internet, the Parliamentary Standing Committee on Law and Justicein its report noted that “third-party software programmes and applications are prone to hacking and manipulation[3]”. Hence, there are fears that virtual courts would jeopardise data privacy as well as the secrecy of dialogues, debates, negotiation and judicial proceedings.
JUDICIAL PRECEDENTS IN THE CONTEXT OF VIRTUAL COURTS
There are various instances where the Hon'ble courts acknowledged the need and importance of virtual courts.
A bench of two-judges dealing with a transfer petition seeking transfer of a case started under Section 13 of the Hindu Marriage Act, 1955, when both parties were not located within the jurisdiction of the same court, the bench in Krishna Veni Nagam v. Harish Nagam[4] referred the parties to participate in the marital dispute proceedings using video conferencing. While granting the aforementioned transfer petition, the Hon'ble Supreme Court noted the problems experienced by parties living outside of the local jurisdiction "it is appropriate to use videoconferencing technology where both the parties have equal difficulty due to lack of place convenient to both the parties. Proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person, wherever one or both the parties make a request for use of videoconferencing,"
Also, in Naresh Shridhar Mirajkar & Ors vs. State of Maharashtra & Anr[5] it was held that "Public hearing of cases before courts is as fundamental to our democracy and system of justice as to any other country". Though traditional technological interventions, such as the virtual court, are necessary in the current situation, the idea of the open court should not be compromised.
PROVISION IN THE INDIAN CONSTITUTION
There is no precise or specific provision for the functioning and administering of virtual courts in the constitution of India because it was never felt essential, India was never ready for such type of lockdown and physical distancing, hence it was totally unexpected. But the hon'ble Supreme court in the need of hour using its special power under article 142 and 145 of the constitution framed rules for virtual operations in Indian courts. It was held by the constitution[6] bench of the supreme court that “access to justice is a fundamental right guaranteed to citizens by article 14 and article 21 of the Indian constitution[7]”. So, the court can’t itself violate it in the ongoing pandemic.
CONCLUSION
Virtual courts are the way to a new digital future. We should also keep this in mind that they are necessity not luxury. It may have its drawbacks as nothing is impeccable, but it is nevertheless a requirement that Indian courts must implement not only for pandemics but as an ordinary practice of justice delivery system too. Everyone is well aware that the virtual court system is a revolution caused due to the Covid-19 pandemic and not pre planned advancement, as a result, the courts are looking at digital court as an alternative rather than an absolute.
REFRENCES
1. Are Virtual Courts Here To Stay? Legal Service India - Law, Lawyers and Legal Resources. (n.d.). http://www.legalserviceindia.com/legal/article-2847-are-virtual-courts-here-to-stay.html#:~:text=Virtual%20Courts%20provide%20a%20tremendous,the%20comfort%20of%20their%20home.
2. Jr, byP. V. R., Roy, byA., Wadhwa, byR., Jaising, byI., Leaflet, byT., bySavera, & Singh, byS. (2020, October 23). Challenges in Setting up Virtual and Online Courts in India. TheLeaflet. https://www.theleaflet.in/challenges-in-setting-up-virtual-and-online-courts-in-india/.
3. Parliamentary panel for indigenous applications for virtual courts. The Statesman. (2020, September 11). https://www.thestatesman.com/india/parliamentary-panel-for-indigenous-applications-for-virtual-courts-1502923274.html.
[1] Article 21 of the Indian Constitution, 1950 [2] Article 142 of the Indian Constitution, 1950 [3] Report 103rd of the Parliamentary Standing Committee on Law and Justice. [4] Krishna Veni Nagam v. Harish Nagam 2017 (3) SCALE 471. [5] Mirajkar & Ors vs. State of Maharashtra & Anr 1967 AIR 1 1966 SCR (3) 744 [6] Article 142 and 145 of the Indian constitution,1950 [7] Article 14 and Article 21 of the Indian constitution,1950