Deveshi Madan and Shubhangi Agarwal
‘India turned Covid-19 crisis into opportunity’ was the claim made by the Hon’ble Prime Minister of India while addressing the nation. From becoming a manufacturer of PPE kits to privatizing coal, the Coronavirus pandemic opened the doors of several unexplored opportunities. A similar opportunity has arisen for the justice system as well. The nationwide lockdown forced the courts across all levels to shut their doors for the public. Considering the implications of a bar on public access to justice, the Hon’ble Supreme Court of India passed certain directions to conduct court proceedings across the country through video conferencing. Since it ensures that the justice delivery system is not disrupted and the judicial system remains accessible, this is a welcome move taken during the outbreak of Covid-19 pandemic. However, there is a need to evaluate the legality, accessibility and feasibility of e-courts when compared to open courts.
Virtual Courts hearings will not replace or be a substitute to physical court.– Hon’ble Justice DY Chandrachud
JEOPARDIZATION OF THE IDEA OF OPEN COURTS
Virtual court hearing is a law made by the court and not the Parliament. Currently, virtual courts are more prevalent than conventional courts. However, the longevity of this mode needs to be tested. As opined by Hon’ble Justice DY Chandrachud “Virtual Courts hearings will not replace or be a substitute to physical court.” This signifies that virtual courts are temporary in nature. However, during this temporary phase of virtual hearings, the provision for open court proceedings is being jeopardized considering various provisions wherein Article 145(4) of the Constitution of India mandates that no judgement shall be delivered by the Supreme Court of India save in open court. Section 327 of the Code of Criminal Procedures mandates that criminal courts need to be open courts to which public have access besides exception of rape cases and others. Likewise, Section 153B of Code of Civil Procedure provides that the location of trial shall be deemed to be an ‘open court’ to which the public has access to, besides the exception that is prerogative of the presiding judge which is not fulfilled through virtual court hearings.
The Apex Court in the case of Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744, had upheld the concept of open courts as being imperative to the process of justice. It opined that all cases brought before the courts, whether civil, criminal, or others, must be heard in open court.
Thus, to ensure provisions of open court are not disrupted in the current scenario, the case of Swapnil Tripathi v. Supreme Court of India (2018) 10 SCC 639 needs to find mention wherein the Supreme Court held that proceedings should be broadcasted live as it is a part of the right to access justice under Article 21 of the Constitution of India. Taking examples of countries like Brazil, England, Canada and Germany where proceedings of the Supreme Court are broadcasted live, India needs to be proactive and implement the same given the present circumstances.
ISSUES AND CHALLENGES
The viability of virtual court hearing has time and again come under the scanner. The following are some of the problems that riddle the virtual mode of conducting hearings:
Lack of Infrastructure
Conducting virtual court hearings entails a certain level of IT infrastructure. One of its main components is an internet connection. However, to date, an internet connection is a luxury that is limited to a privileged few. The disparity in the distribution and access of internet connection amongst rural and urban areas possess a major barrier in the virtual dispensation of justice. TRAI’s data recognizes this disparity and states that urban India has a high rate of subscriptions as compared to rural India that stands only at 27.57of subscriptions per 100 people in 2019. The government has taken a step in the direction of making internet sources available to all by setting up many e-Seva Kendras, which can provide information to every litigant on the status of their case and related queries therein.
Thus, in order to ensure wider access to justice as envisaged under Article 39A of the Constitution of India, it is imperative that all social groups have equal access to the services provided by the State.
Lack of Training
As already stated, that virtual courts would entail a certain level of IT infrastructure, such technological advancement would lead to a paradigm shift from the traditional mode of conducting proceedings. This would necessitate exhaustive training of all judicial officers, advocates, and other court staff including those in charge of filing and presenting files before the appropriate court. Considering the fact, not every person can learn by themselves and adapt to the new normal within a limited time period given the complex nature of IT infrastructure, it is imperative that proper training be provided to everyone which is presently deficient with sudden implementation of virtual courts in the current scenario.
Technological glitches are one of the major issues among all. In a letter addressed to the Chief Justice of India S.A. Bobde, SCAORA (Supreme Court Advocate-On-Record Association) stated that its members have faced severe difficulties during video conference hearings due to technical problems. “The common feedback seems to be that the lawyers are unable to present their cases effectively in the virtual medium and the same is acting as a major deterrent for lawyers to consent for such virtual hearings,” the letter read. The letter further pointed out that advocates are also not well-equipped with the knowledge of the use of computers. It is also pertinent to note that not all lawyers are equipped with the necessary infrastructure to conduct online hearings. This has led to a loss of livelihood for many lawyers who were widely dependent on open courts as also raised in a plea filed in the Supreme Court.
Impact on the criminal justice system
There exists a significant difference between in-court testimony and video conferencing. The in-court testimony provides the court with an opportunity to evaluate the testimony of the witness along with their demeanour that involves expressive functions during cross-examination in particular. However, evidence or testimony recorded using video conferencing can make it extremely difficult to record or detect facial expressions, postures and gestures which plays a significant role for a proper cross-examination. Therefore, this can thus hinder the process of discovering the truth by the justice delivery system.
After looking at various issues and challenges faced in virtual court hearings, some suggestions have been postulated to combat the same.
- A steering committee must be formed consisting of industry experts and innovators who can assess the feasibility of shifting to a digital medium and make the requisite suggestions in order to make our justice system more robust and adept for a crisis like the one at hand.
- Live streaming and recording of the virtual court proceedings be implemented to ensure that the principle of open court hearings is not jeopardized and does not interfere with the administration of justice or the dignity and majesty of the open court hearing.
- The government must plan on developing infrastructure where a specific number of labs, with trained staff and computers, could be set up in proportion with the population of a particular district.
- In order to make our legal system more tech-friendly, it is essential that law students are imparted with practical technological skills required in the legal profession. A similar program must be implemented by the National Judicial Academy for the future judges. The Bar Council should thus formulate guidelines necessary to mould the curriculum in this regard. In furtherance to this, the Bar Council of India and State Bar Councils should conduct regular training programs for all advocates enrolled with them, to make them more adept with technology.
However, it is pertinent to consider the economic disparity existent in the composition of students in law schools and recruited judges in judicial academies. Thus, the concerned authorities must ensure equal access to basic infrastructure and hardware for all students and trainees.
The current situation has forced everyone to rethink the way our justice system functions. Despite its many flaws, the virtual system of conducting hearings is looking for a much longer stay. However, considering the confidence of the litigants and advocates alike (as demonstrated above in the open court system), virtual courts are not likely to be a permanent feature. Nevertheless, with the pandemic reaching its peak, there is no clear timeline for the courts to get back to normalcy. Considering such a situation, it is imperative for the government to draw a streamlined program for a smooth shift to the virtual mode of hearing. The government has already taken steps in this regard with features like e-filing, e-payment and introduction of technologies like National Service and Tracking of Electronic Processes and Supreme Court Vidhik Anuvaad Software. However, with factors like poverty, illiteracy, backlog of cases, lack of education about the programs, lack of training amongst lawyers and court staff alike, India judicial system seems to be away from a trouble-free journey in accepting the virtual mode of hearing.
Out of the two co-authors, Devishi works as an associate at Karanjawala & Co. Shubhangi is a Final Year student at Symbiosis Law School, Pune.
Image credits: http://www.indialegallive.com
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