Emergence and Future of Virtual Courts

In a famous sitcom, a leading character states that Change is the only thing that remains constant, and one could not agree more with that. In the present times when a pandemic is wreaking havoc across the globe, one thing that has changed is how the world works. In these testing times, people have evolved the manner to work, concepts like work from home and virtual meetings gained prominence and have now become a part of a new normal. As the world increases dependence on technology and makes it too integral a part of life, the courts need to adopt the same to render justice.

On 24th March the Central Government imposed the lockdown. The government did the same by invoking Section 2 of the Epidemic Disease Act, 1897 and Section 6(2)(i) & Section 10(2)(i) of the Disaster Management Act, 2005. When lockdown was imposed it appeared that the entire nation came to a standstill. However, the liberty of individuals cannot be left in the hands of the executive without any check and balance. Therefore, to dispense justice the honorable Supreme Court started hearing matters via video conferencing.

Now it has been roughly five months from the time video conferencing was first used in place of open courts to argue various matters and the debate on virtual courts versus open courts is still a hotly debated subject. In this article, the author tries to analyze the pros and cons of both the open court system, which was prevalent before the pandemic and the virtual court system that has emerged as a result of the pandemic.

It is imperative to understand the term ‘open court’ as the critics of virtual court cite this as an important argument. ‘Open Court’ means the court in which the public has the right to be admitted. The Indian Constitution also deals with the pronouncement of open court in several instances; for example, Article 145(4) of the Constitution states that the Supreme Court shall deliver judgment in open court. Similarly, Section 327 of CrPC and Section 153B of CPC mandates open court hearing in all criminal and civil cases. Now after analyzing the various provisions of different statutes and understanding the definition of open court one can say that the concept of open court symbolizes that the public has free and fair access to the proceedings of the court. This access to courts creates a sense of value sharing on a broader level between judiciary and people of the country.

The origin of this term can be traced back to Magna Carta of 1215 in which clause 40 states that “To no one will we sell, to no one will we refuse or delay, right or justice...”

Comparative analysis of Virtual and Open Courts

Accessibility and Viability of Courts

In a developing country like India, a person earning more than 32 rupees in Rural India and 47 rupees in urban areas of India is considered above the poverty line. It is hard to imagine that a major chunk of people living at a meager wage will know about the technology and ability to bear the cost of attending the court virtually. The ground reality of various district courts in India is that a major chunk of members of the bar is not well equipped with modern technology. However, they might have a requisite argumentative and persuasive skill set, this situation where despite legal arguments, precedents and evidence in favor of losing a case because of being non-tech-savvy will overall hamper the ability of the judicial system to render justice.

Open Courts, on the contrary, are accessible to one and all as the poor do not need to suffer due to various technological shortcoming in which the person has no control such as Data Speed, Connectivity issue etc. The internet penetration rate as per statistics [i] stands around fifty per cent in 2020 which means half of the population of this country does not have internet access which automatically deprives them of justice in virtual courts which is not the case with open courts which are open for all.

In the landmark case of Naresh Shridhar Mirajkar v. the State of Maharashtra [ii], The honourable Supreme Court has held in favour of the open court. It stated that “Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice”.

Law of Evidence and Open Court

In an open court during cross-examination of witnesses, the conduct of the witness is also closely looked at. The courts also analyze the tone of voice of the witness, the facial expression of the witness, various gestures. In virtual courts, only the face of the witness is visible, which makes the job of the lawyer while cross-examining more difficult. A lawyer and even the honorable lordship might not ascertain at times whether a witness is speaking the truth or is blatantly lying in court of law. Whereas, in open court when a witness is physically present in the court a judge and a lawyer can have a closer look at him to analyze his demeanor to comprehend whether a witness is speaking the truth or not during testimony or cross-examination.

The Suggestions

The author believes that open courts builds a special bond between the public and the judiciary which strengthens the institution but currently in Virtual Courts hearing session the public is not able to attend the court proceeding which seriously hampers this relationship between the public and the judiciary. The judiciary can take active steps to allow the public to attend the court proceedings by streaming the same live on various platforms. This step on the part of the judiciary will resolve the issue that in virtual court, the public is not able to attend as compared to open courts.

Secondly, with respect to lack of infrastructure and data penetration in the country author believes that in future the virtual courts will not be and cannot be deemed to be new normal in a country like India because of various reason like lack of infrastructure, viability issues, poverty, digital illiteracy but the current system of Virtual Courts has facilitated the lawyers and clients to represent themselves in various cases by diluting the issues of border. The Virtual Courts have made the courts more accessible to people who live too far away, and due to several reasons could not attend the court proceedings in person in the past. The virtual court system has made the judicial system more accessible to Non-Residential Indians or Lawyers practicing in different jurisdictions or Migrant People. Also, The SC issued guidelines in relation to virtual hearing of courts titled ‘Guidelines for court functioning through video conferencing during COVID-19 pandemic’. The order clearly stated that evidence include electronic evidence which means that all statutory provisions in different statutes. The author therefore, thinks that since it is not all gloomy concerning virtual courts, the courts should consider continuing this on case to case basis or its discretion in matters where if Virtual Courts are not allowed the disbursement of justice will be hampered seriously. It will deprive an innocent person of his/her rights.

Long term approach concerning Virtual Courts should be that the government takes active steps to provide digital literacy to members of the bar and bench. Also, the government should build the infrastructure required in conduction of such court proceedings across the country. The government can use its PSUs to bring down the connectivity problem faced by people in remote locations, and also the PSU can be used to provide a common minimum data speed across the nation.

Conclusion

In conclusion one can say that though virtual courts were a result of necessity at a time of pandemic to render justice they cannot completely replace the open court proceeding at once though it can be a part of a long process. Virtual Courts cannot be sustainable unless several issues with respect to infrastructure, feasibility and data connectivity are resolved. Though once a complete digitalization of the judicial system is done, it can be beneficial in reducing pending court cases in the courts as AIs can be successfully employed to a great extent. The author believes that the momentum created by the thrust to digitalize the court proceeding due to these testing times will be carried forward by the government in a systematic manner.

Endnotes

[i]Sandhya Keelery, Internet usage in India - statistics & facts, Jul 7, 2020 available at: https://www.statista.com/topics/2157/internet-usage-in-india/#:~:text=Despite%20the%20large%20base%20of,access%20to%20internet%20that%20year.&text=A%20majority%20of%20India's%20digital,internet%20via%20their%20mobile%20phones

[ii] Naresh Shridhar Mirajkar v. the State of Maharashtra, 1966 SCR (3) 744