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The Future of Justice: Litigation and Virtual Courts

INTRODUCTION

For time immemorial, courts in India have toiled to deliver justice. This has been ongoing from even before we got our independence. COVID-19 or Coronavirus which is an infectious disease caused by a newly discovered virus found its way into our subcontinent during the initial months of 2020. This disease caused the death of thousands of people all over the world and to contain it, the government began to take strict actions promoting social distancing and imposed a nationwide lockdown. The lockdown was imposed all over the country restricting any outdoor activity. This pandemic damaged the whole economic structure of our country and led to several other problems such as unemployment, food crisis, poverty, and much more. The pandemic also had a huge impact on the judiciary of our country; it shook the justice delivery system like never before. The regulations regarding ‘social distancing’ along with the lockdown instructions led courts and tribunals to shut their access to the common public. With the enactment of the initial 21-day Coronavirus lockdown, starting with the Apex Court, many High Courts and subordinate courts suspended work for weeks or notified minimal sitting. But this didn’t change or affect the crime rate in our country. Cases began to stack up and the pressure on the judiciary began to increase.

The chief justice of England & Wales expounded that:[1]

We have an obligation to continue with the work of the courts as a vital public service, just as others in the public sector and in the private sector are doing…”

Recognizing that a complete shut-down of the justice-delivery system is infelicitous; judicial administrators turned to technology and resorted to e-delivery of justice to meet the challenges posed by the pandemic. Various judicial and quasi-judicial bodies, led by the Apex Court, started to conduct hearings online. The first-ever paperless hearing of the Supreme Court was witnessed on June 1. It was a rare sight as three judges sat in front of their laptops in a cabin instead of a courtroom.

Although these measures are estimable, they are not ample. This is because of the following reasons:

  • The virtual system of functioning has not been adopted by all judicial and quasi-judicial institutions across the country, hence limiting its reach and
  • Institutions which have adopted this system have only been employing it for select matters i.e. to hear and dispose of urgent/extremely urgent matters.

The judiciary must take measures not only to remain operational but to also achieve maximum  possible functionality. The network of virtual courts can be of great help in accomplishing this challenge.

VIRTUAL COURTS

The ‘virtual court’ is a concept aimed at eliminating the presence of litigants or lawyers in the court and adjudication of the cases online.[2] E-courts are a kind of  subset to virtual courts, it can be said that the blogs, mobile apps and various other tools used to computerize the legal system are a part of the ‘E-Justice’ System.

India is moving towards the attainment of a framework where visiting a court in person will not be necessary. Well, it’s a possibility that we might not need such courts at all. “Digital courts” if properly implemented would provide the people of this country with time-bound and efficient delivery of justice. Virtual courts have entered our system long before the pandemic came into place. The first virtual court of Delhi had opened at the Tis Hazari Court on the 26th of July 2019. After that, the Punjab and Haryana High Court launched Faridabad’s virtual court on the 17th of August 2019, and this court mainly dealt with Haryana’s traffic challan cases. This project was initiated under the Indian Supreme Court e-committee guidelines.

E-courts help speed up the disposition of cases, particularly in the cases where the accused had to visit the court just to plead guilty. This method also helps minimize court footfall.

It is clear that the process of implementing virtual courts was already under development and it wouldn’t be wrong to say that further development and technological up-gradation of the same wouldn’t have been possible without the pandemic. The Supreme Court also issued directions for the conduct of court proceedings nation-wide via video conferencing[3]. The Supreme Court’s limited guidelines on the same are as follows:

  • All High Courts shall ensure the functioning of the judicial system through the use of VC technologies and to this end, shall decide the modalities for use of VC technologies after considering relevant factors (such as peculiarities of the judicial system in every state as well as the dynamically developing public health situation).
  • District Courts in every state shall adopt VC technologies prescribed by the appropriate High Court.
  • Courts shall make VC facilities available for those litigants who do not have access to these facilities, including by appointment of advocates as “amicus curiae” and making VC facilities available to such advocates (if necessary).
  • Till the High Courts may frame rules in this regard, and VC technologies shall primarily be used for hearing arguments, both, at the trial as well as appellate stages.
  • However, evidence shall not be recorded using VC facilities except with the parties’ mutual consent.
  • The directions were to remain in force till further orders were passed by the Supreme Court.

On 7th April 2020, the High Court of Telangana passed directions to commence hearings via video-conferencing in the state during the period of lockdown[4]. Further on, other High Courts and tribunals have also adapted to these directions.

CHALLENGES IN ESTABLISHING VIRTUAL COURTS

Establishing virtual courts would lead to full computerization of the judicial system and it would enable people to avail the benefits of facilities like video conferencing, e-filing, etc. A virtual court will allow the use of e-signatures or digital signatures, and by having a proper database of pending cases, orders, etc., a more litigious user interface will be established in our country’s judicial system.

Now, to accomplish all of this, it’s rational to evaluate what the probability of having these virtual courts in the future is. In the present circumstances, it may seem a necessity; however, it goes without saying that currently there are a whole lot of glitches and defects in its execution.

  • The current e-filling process is fraught with numerous complications: E-Courts will prove to be cost-exhaustive because developing e-courts nation-wide would open the path to the need to deploy modern age technologies.
  • Hacking and Cyber Security: Cyber-security is a huge concern too. Several conferences have been disrupted because of compromised protection of the hearings. The govt. has taken apposite action to resolve this issue and has formulated the Cyber Security Strategy, but as of now it’s just on paper and its practical implementation remains yet to be discovered.
  • Infrastructure: There is a high possibility of challenges arising due to insufficient infrastructure, electricity and stable internet connection in most Talukas/villages.
  • Maintenance of virtual court records: The paralegal personnel are not adequately qualified and trained to manage paperwork, handle e-documents or record evidence.

ADVANTAGES & DISADVANTAGES

A full-fledged network of virtual courts with proper implementation will result in elimination of court expenses on infrastructure, staff, security, etc. The parties involved in the cases will not have to come to court in-person and this in turn will reduce travel time and make the procedure more cost-efficient.

The institutions’ digitization and computerization would also bring accountability and better administration into the functioning of the judiciary. As we can easily see, the video conference system launched to minimize the spread of COVID-19 in the courts has managed to divert the traffic in the courtroom into the remote controlled, simulated virtual courts.

One of the biggest advantages is the flexibility of work hours. There is a huge backlog of pending cases and this delay leads to people losing their faith in the system. With the upcoming of virtual courts, the procedure will be given a boost, and adjudication of cases will be done in a time-bound manner.

Everything has its benefits and detriments, and so is the case in India for ‘virtual hearings.’ Although it may seem like the easiest and the fastest way to build and strengthen India’s legal system without any drawbacks, sadly this is not the case.

There will be significant regulatory concerns in regards to the applicability and authenticity of the identity of witnesses, evidence produced etc. Even the confidentiality of court proceedings will be at stake as the whole process eventually requires the use of computers and many other technologies and resources that can pose certain risks to data security and privacy.

An India-specific problem is of setting up. There are over 25 high courts and more than 600 district courts with over thousands of sanctioned judges. The cost of setting up of the required essentials to cumulate all the needed resources throughout the country needs a kind of investment that India can’t afford at the moment.

Apart from this, utmost care must be taken to ensure that speedy justice doesn’t deteriorate the quality of judgments as quality of justice served is greater compared to amount of cases adjudged.

CONCLUSION

Upon comprehensively evaluating everything, we can be confident of the fact that yes, every crisis brings a new opportunity. An opportunity to develop and improve ourselves, an opportunity to make ourselves immune to the challenges and barriers that may fall in our path in the near future.

However, the only way an ideal virtual justice system can be achieved is by tackling these hindrances and eliminating it all at once. All loopholes should be removed and the technology should be upgraded. To address the above mentioned challenges, the first and foremost step is to develop a policy to encourage the establishment of e-courts. Drawing-up a well-structured policy can help in laying a concrete roadmap to direct the e-court system in India.

The govt. should put in sincere efforts on the training of personnel to maintain all the documents and e-data. Training sessions should also be initiated to familiarize the staff and judges with the framework and procedures. This would give a head start to the successful running of e-courts in the country.

Technology is here to stay and if everything goes smoothly and all barriers are crossed, the virtual court might just be the safest and most convenient form of adjudication[5].


[1] Coronavirus (COVID-19): Message from the Lord Chief Justice to judges in the Civil and Family Courts, JUDICIARY.UK (Aug 26, 2020 4:00 PM)
https://www.judiciary.uk/announcements/coronavirus-covid-19-message-from-the-lord-chief-justice-to-judges-in-the-civil-and-family-courts/.

[2] Virtual Court, VCOURTS.GOV.IN (Aug 20, 2020) http://vcourts.gov.in/virtualcourt/#:~:text=About%20Virtual%20Court&text=Virtual%20Court%20is%20a%20concept,adjudication%20of%20the%20case%20online.

[3] IN RE: GUIDELINES FOR COURT FUNCTIONING THROUGH VIDEO CONFERENCING DURING COVID-19 PANDEMIC, Writ (C) No. 5 of 2020, Apr. 6, 2020.

[4] Government of Hyderabad, In Re: Guidelines for Court Functioning through video conferencing during COVID-19 pandemic, ROC NO.394/SO/2020/SCI ORDER, (Issued on Apr. 7, 2020).

[5] RICHARD E SUSSKIND, ONLINE COURTS AND THE FURURE OF JUSTICE (1st ed. 2019).


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

Ashutosh Anand, The Future of Justice: Litigation and Virtual Courts, Ex Gratia Law Journal, (December 1, 2020), https://exgratialawjournal.in/journal/volume-1/vol1-issue3-dec2020/the-future-of-justice-litigation-and-virtual-courts-by-ashutosh-anand/.

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Author

Ashutosh Anand
Student - NMIMS School Of Law Mumbai