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Litigation and Virtual Courts: Prospects and Challenges

Introduction

COVID- 19 or Coronavirus has affected India’s productivity rate because of social distancing and lockdown rules. The functioning of the Indian Judiciary came to a halt when the government declared a nationwide lockdown on 24th March 2020.  The Judiciary was trying to figure out new means to commence the hearing and other judicial functions because it was uncertain for how long the administration of justice can be delayed. The courts had many pending cases thus it was impossible to wait for the decline of corona cases. In the wake of this pandemic, the Supreme Court of India passed a direction to all the courts in the country to colossally use video conferencing for judicial proceedings. The direction was exercised by the Supreme Court under Article 142 of the Indian Constitution. This section gives plenary power to the court to pass decrees or make orders in the interest of justice. The court has been hearing urgent cases through video-conferencing. The bench hearing these cases sit in the courtrooms, while lawyers make their submissions, through video links from their homes or offices. The court had named this mechanism ‘the virtual court system’.[1]

Analysis on Prospects and Challenges of Virtual court

Virtual court system was a step taken to promote social distancing as per the government rules. It has many prospects and challenges. Some of the prospects that one can observe are:

  • Government officials, advocates and other staff from many districts had to make multiple visits concerning their case hearing, filing their response or affidavits, judgments etc; Virtual court has made it easier for them and filing can be done through E-mail or Whatsapp.
  • Virtual courts are time-saving and energy efficient, as everything is done online.
  • Advocates will be more prepared than before which helps to resolve the conflicts sooner.
  • Video conferencing proves to have more witness credibility as there will be more prolonged eye to eye contact which helps lessen distraction and increase the focus while giving any statements to the court.
  • One of the important prospects is, the decreased probability of a person getting infected by COVID-19 as social distancing is maintained.
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Even though there are advantages to virtual court systems there are challenges that come with it. Some of the challenges that are observed are:

  • Presenting a case is an advocacy skill. When a person is cross-examined in the court, it impacts a person’s response. Also, an advocate stands a better chance to convince the judge by observing the mood and the interest of the judges which is not possible in a virtual hearing session.
  • Virtual court system is a costly affair. Many of the lawyers do not have advanced technology to adopt virtual hearing. There is lack of internet availability around the country as well as the internet data that one might have in their phone won’t be enough to attend hearings. Advocates find it costly as they would have to find proper handsets which will have the necessary features to attend a virtual hearing session. They also have to spend money on Wi-Fi and internet services.
  • People are not familiar with virtual court thus creates frustration and chaos. There should be training workshops for smooth functioning of these sessions.
  • Disturbances are created during virtual courts as there might be connectivity problems, sounds and noises while presenting the case, interruption by other people during the hearing and unintentional mistakes by the advocates.
  • Trial court advocates claim that judging demeanor of the witnesses while cross examination becomes difficult. Some believe virtual court provides the judge with a clear line for clarifying the witness’s statement, but the judge cannot see the witness’s actions, such as the witness’s hands which are signs of nervousness.
  • It is a tedious task for court staff and employees as they have to take print out of the case bundle, scrutinize them, inform the defects to the advocates, wait for the rectified soft copy, then take a print out again. This causes huge waste of time and resources.
  • When advocates ask for payments from their clients they delay it or don’t respond to the calls or messages; due to this livelihood of the advocates have been immensely affected.
  • It is difficult to make clients, witnesses and other third parties understand how virtual courts work.
  • Integrity of testimony in virtual court is in question as no one knows if they are given notes or coached by the advocates to get a favorable judgement.
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Conclusion

As it is rightly said by Terry Goodkind “There is nothing that exists that has only one side. Even a piece of paper, thin as it is, has two sides.” Virtual courts have both challenges and prospects but challenges are considerably more. These challenges can be rectified with proper coordination and cooperation of all the units in the judicial system. Judges can pass ex-parte or injunctive orders regarding how to conduct virtual court sessions and restrictions on certain things that cause hindrance in the functioning of the court. Courts should try to maintain integrity to administer justice to the public. Virtual court systems are a good alternative but for a temporary period of time.


[1] Supreme Court to continue virtual court system, The Hindu (June 14, 2020), https://www.thehindu.com/news/national/sc-to-continue-virtual-court-system/article31828053.ece#:~:text=The%20court%20has%20been%20hearing,mechanism%20the%20virtual%20court%20system.


Cite this article (The Bluebook 20th ed.)-

Surya Sunilkumar, Litigation and Virtual Courts: Prospects and Challenges, Ex Gratia Law Journal, (September 19, 2020), https://exgratialawjournal.in/blawg/covid-and-law/litigation-and-virtual-courts-prospects-and-challenges-by-surya-sunilkumar/.

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Author

Surya Sunilkumar
Student - Ramaiah Institute of Legal Studies