“Technology made large populations possible; large populations now make technology indispensable.”– Joseph Wood Krutch
COVID-19 has flooded people’s lives with new worries, lately, becoming a deciding factor in making decisions be it personally or professionally. The World Health Organization declared it to be a “public health emergency” on January 30, 2020. It immediately became an international concern to which countries worldwide reacted in frenzy. Soon after, India declared a nationwide lockdown starting March 23, 2020. Due to this, the emergency that has ensued while the world wrestles with the Coronavirus is unimaginable.
Public and private services are facing a lockdown but in these times, there is a big need that the legal system does not suffer. Being the core public institution, the court of law needs to come up with a solution quickly as justice delayed is justice denied.
Technology is an important and big factor in our lives, now more than ever with work from home, online classes, etc. it is being used as an attempt to have somewhat of a normal routine and ensuring that the lives of people do not get affected. So, the next step has become the introduction and implementation of technology in current legal practices while making sure that the focus remains on problem-solving and justice is still accessible to all. Around the world, technology is being incorporated in the legal world as a solution. For instance, the United Kingdom is bringing in an emergency legislation –The Coronavirus Bill (2020) to further allow the public and the litigants to participate in court proceedings through audio and videoconferencing.
In India, the Supreme Court has made efforts to lead the judiciary in making justice more accessible via video conferencing. This article aims to trace the roadmap of video conferencing as contemplated by the Indian Judiciary over the years and whether it will play a defining role in overcoming the current hardships.
The Hon’ble Supreme Court recently sat down and discussed the matter of digitalising the courts during the COVID-19 lockdown. The potential ways to carry out virtual courts and making it available to litigants who lack the required resources was deliberated upon by a bench consisting CJI Bobde and Justices DY Chandrachud and L Nageswara Rao. The order was issued in Re: Guidelines for Court Functioning Through Video Conferencing During COVID-19 Pandemic regarding adapting the social distancing guidelines and the measures to be taken within court premises to ensure that the physical presence of all attendees like advocates, clients and interns is reduced. Article 142 of the Constitution of India was invoked to pass these guidelines under extraordinary jurisdiction.
The matter of allowing the delivery of justice through videoconferencing was earlier brought up in 2014. A Division Bench of the Supreme Court, in Krishna Veni Nagam v. Harish Nagam, allowed a transfer petition in a matter under Section 13 of the Hindu Marriage Act, 1955. The court allowed the proceedings to be carried out through video conferencing and deliberated upon its usage when both the parties were not available within the jurisdiction of the same court. The court was of the opinion that it makes sense to make use of the available technology at the request of one or both of the parties when they both find it inconvenient to decide on one place of jurisdiction to appear in.
Although this case was overruled by the Supreme Court in Santhini v. Vijaya Venketesh by a majority of 2:1, Justice DY Chandrachud wrote a dissenting judgment in favour of modern technology and video conferencing while Chief Justice Dipak Misra along with Justice AM Khanwilkar were against it as they believed that the objective of the Family Courts Act, 1984 was to enable face to face reconciliation between the parties in the process of settlement. This could not be achieved through virtual communication.
In the dissenting judgment, Justice Chandrachud highlighted how video conferencing was not out of the purview of the Family Courts Act (the Act) and could potentially make the communication of parties more convenient resulting in a successful settlement. The Act allows the court to decide the structure of the process as under Section 9 and 10(3). The High Courts can frame rules under Section 9(1) and the Family Court may, subject to those rules, “follow such procedure as it deems fit”. It cannot be ignored that in today’s day and age, parties may be unable to be physically present and can only do so at such expense, delay, or hardship which defeats the main purpose. Videoconferencing should be seen as a facilitative tool. Moreover, adopting such modern technology will reduce cost, time, carbon footprint, and the like.
In Santhini’s case, the Hon’ble Apex court largely dissuaded the idea of adopting modern technological means to conduct court proceedings, specifically at the stage of reconciliation. But in M/S Meters and Instruments vs Kanchan Mehta, the court stated that “Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There is a need to categorize cases which can be concluded “online” without the physical presence of the parties where seriously disputed questions are not required to be adjudicated like traffic challans and cases of Section 138 of NI Act“.
Benefits of digitalising courts
- Petty offences like delayed payment of local taxes or compoundable offences where physical attendance is not necessary can be taken up in virtual courts for their quick disposal.
- The eCourts Project has already started taking up traffic offences through a virtual court since August 2018. It has been a huge success in Delhi, Maharashtra, Haryana, and Tamil Nadu. It is simply a programme through which a person finds out if a challan has been issued, then pleads guilty or not guilty. Choosing not guilty lets you pay the minimum fine and choosing not guilty send your case directly to the traffic trial court. It takes only one judge for an entire state to manage virtual courts. It drastically decreases the footfall to the actual courtrooms.
- Justice Chandrachud pointed out that this will help prevent the parties from intentionally delaying the proceedings.
- It will reduce the number of transfer petitions as audio and video conferencing increases accessibility through technological means and the court can reach any remote area.
- For the parties, this will be highly cost-effective and time efficient as they would not have to take time off from work or spend ridiculous amounts to reach the court from different faraway areas.
- The witnesses would be more willing to give their statements and appear before the court multiple times as through videoconferencing they would not have to worry about getting embroiled in court matters. It would also ensure their security in case a witness is in danger.
Issues of Digitalising Courts
- Judges have expressed that they are unfamiliar with the technology and have difficulty adjusting to it, especially, facing a camera while they are hearing a case.
- There have been certain technical difficulties such as the bandwidth not being stable so the video frame freezes or the audio cuts off.
- Another criticism is that a hearing via video conferencing does not actually allow it to be a public hearing as the absence of public in the courts takes away the social audit element.
- It is difficult for consultation to occur during an online hearing. The advocates cannot consult with the clients and the judges cannot consult amongst themselves without overhearing each other.
- Third-party applications and proprietary software are being used like Vidyo, Whatsapp, WebEx, Google, and Zoom. These are unreliable considering that the courts are dealing with a public function like adjudication and delivery of justice where privacy of the clients and the matter is paramount.
- Advocates on Record (AoR) have been facing difficulties in coordination. There has been confusion regarding the status of their applications for urgent hearing and they have had to call the helpline multiple times.
- Further, they are concerned that the limit on documents allowed to be uploaded on the Supreme Court Website is not sufficient. There is a limit of 5MB to upload a petition and 2MB to upload any additional documents.
- There is only a single link sent out to each party to attend the proceedings online. This creates a situation where it can either be the AoR or the Senior Advocate who can attend it. The junior advocates are left in dismay as they cannot take part in the proceedings of the court.
Our Judicial system plays a significant role in checking the morality of our nation. It upholds the rights of the citizens, mediates conflicts, and even protects the democracy on many occasions. Despite its huge role, there is a disparity between the ideal way it should work and its reality.
Amongst other core functions of the Judiciary, accessibility ranks higher than others. The work of the judiciary cannot be appreciated if the delivery of justice cannot be accessed by people. COVID-19 crisis has forced the judiciary to deliberate upon this issue and to come up with a solution as soon as possible. It’s not the first time that the courts have tried to digitalise their platform to increase accessibility and convenience. Even after the lockdown has started to open up, the justice delivery system is going through a transformation leaning towards technological ways to modernise it such as video conferencing.
This has the potential to become the new normal considering crisis like the COVID-19 pandemic has become a possibility now. Digitalising the courts will not only increase the convenience but also help in eliminating costs of running a paper-based system. Courts from several other countries like the UK have already been conducting hearings through audio and video conferencing for the past 15 to 20 years. India has not stayed behind; the pros and cons of the technology being used are being deliberated upon to come up with the guidelines to meet future challenges.
Looking forward, there can be certain points that can be kept in mind to ensure that digitalising of courts is successful –
- There can be practical training provided to the future lawyers while they undergo their LL.B. course and a practical exam along with the All India Bar Examination in place to avoid any technical illiteracy that could hinder the complete experience of using modern technology so as to not lose the essence of a court of law. For the lawyers already practising, the AoR exam can have a practical exam as well which can be made compulsory for all lawyers to clear the exam.
- The National Informatics Centre needs to create a safe next-generation platform that could have features like video conferencing and e-filing. This is to replace the use of any unreliable third party software that could potentially harm the privacy of a critical public function.
- A specific set of laws and procedural rules need to be passed to govern these virtual courts so that the justice delivery system works smoothly despite any future emergencies.
- This is the best time to come up with a hybrid model of the existing system and modern technological upgrades. The world of legal technology is rapidly evolving enabling us to use new and upcoming technologies like Artificial Intelligence and process automation to carry out digitisation of data and analytics.
- The aim should be to increase the reach of the courts across geographically isolated regions rather than uprooting the system of physical courts entirely.
 Suo Moto Writ Petition (Civil) No. 5/2020
 TRANSFER PETITION (CIVIL) NO. 1912 OF 2014
 TRANSFER PETITION (CIVIL) NO.1278 OF 2016
 CRIMINAL APPEAL NO. 1731 OF 2017 ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO.5451 OF 2017