This article has been written by Simran Bherwani, A first year student at National Law University, Jodhpur
Introduction
Except in the most complicated of cases, justice must prevail, as Winston Churchill once said. As COVID-19 broke out, the whole world had to adjust to a new digital way of life. In the midst of a global pandemic, immediate access to justice is critical. As a result, the Honourable Supreme Court formed virtual courts to meet the needs of the nation's people. This change has left a significant impact on the reform of the structure of Indian courts.[1] In light of this reformation, it is imperative to understand the consequences of the same.
Virtual Hearing System in Courts
The Supreme Court issued an order invoking Article 142 of the Constitution of India to establish virtual courts.[2] A collection of rules was written and submitted to all of the High Courts, Circuit Courts, and lower courts.[3] An e-committee chaired by Justice DY Chandrachud had put in a lot of effort regarding virtual courts. While looking into the issue of virtual courts, the Parliamentary Standing Committee of the Department of Personnel, Public Grievances, and Law and Justice submitted a report that looked into the definition of court.[4] While neither the Code of Civil Procedure nor the Code of Criminal Procedure contain an exact definition of the court, the Legislative Department of the Ministry of Law and Justice states that a court is "a place where justice is enforced."[5] This results in the conclusion that rather than being a service, the court is a place.[6] The key concept here is the distinction between online courts and virtual courts. The former is one where the court is graced by the physical presence of solely, the Judge.[7] However, the latter encompasses the entire system of filing documents, payment of fees, submission of evidence, hearing of arguments, testimonial of witnesses and verdict of the judge, taking place electronically via video-conferencing.[8]
Challenges of Virtual Hearings
The main concern regarding virtual hearings was that it leads to a violation of the principles of administration of judgements. It is endorsed by clauses such as Article 145 of the Indian Constitution, which deals with court rules.[9] The Supreme Court's decisions must be issued in open court, according to Article 145 (4).[10] It also notes that no report under Article 143 can be made unless it is in accordance with an open court opinion.[11] Similarly, Section 327 of the Code of Criminal Procedure also mandates hearing in an open court.[12] This has also been stated in Section 153-B of the Code of Civil Procedure.[13] The word "open court" refers to a court where the general public has a right of admission.[14] It was held in the case of Naresh Shridhar Mirajkar v. State of Maharashtra that any case brought before the court, regardless of its nature, must be heard in an open court.[15]
As a result, the principle of open courts is needed to preserve public trust in the administration of justice. Every court should be open to the public so that they can see that justice is being done and that judges are doing their best to uphold the law. This raises the question of whether virtual courts satisfy the aforementioned conditions. Digital trials are often limited to urgent hearings in High Courts and the Supreme Court. There was also a very subjective, limited procedure for determining what was an urgent matter. Furthermore, the majority of lower courts did not follow this rule. Hence, instead of leading to speedy disposal of cases, it has led to an increase in pendency of courts. According to the National Judicial Data Grid (NJDG), the Supreme Court has over sixty thousand cases pending, while the High Courts have 45 lakhs twelve thousand eight hundred cases pending. The number of pending cases at the district and subordinate court levels is shockingly high: two crore, or 80 percent more than a year.[16]In the case of Swapnil Tripathi v. Supreme Court of India, the Supreme Court of India held in 2018 that access to justice is never complete unless the litigant is able to see, hear, and comprehend the proceedings first-hand.[17] When rules for live streaming court proceedings are created, the principle of open court hearings must be followed, according to the Court. However, while delivering judgments on 13 April 2020, a Supreme Court bench led by Justice DY Chandrachud, stated that while the technology used by the Supreme Court has advanced in some ways, live streaming and viewing of hearings and hearings will not be available to and accessible by all for the time being.[18] Furthermore, the current technology, according to various stakeholders, does not support virtual court proceedings. Most of the lawyers also do not possess access to basic electronic devices such as a laptop, which is an indispensable part of virtual courts. Moreover, digital court hearings are vulnerable to system crashes, particularly during peak hours when a large number of people log in to the video-conferencing system, and a single hiccup may derail the entire proceeding. There are concerns that using third-party software systems, which are vulnerable to hacking and manipulation, would jeopardize data privacy as well as the confidentiality of virtual court communications and proceedings.
Conclusion
Eminent jurists belonging to the legal profession have asserted that this system of virtual hearings is not a feasible one and cannot permanently replace courts. With the offset of the pandemic, courts will begin functioning again. Until then, in order to ensure administration of justice, it is necessary to develop the system of system of virtual hearings. Starting with the updating of infrastructure, electronic equipment and data connection needs to be provided to all. This will ensure access and availability to justice from people belonging to all strata of human society. Suggestions from the international arbitration models of India can also be taken into consideration. Lastly, every court or judicial authority in India must be urged to adapt to the system right away.
[1] PTI, SC defends 'virtual courts system' during COVID-19 pandemic, says it ensured justice, The New Indian Express, 2nd May 2020 [2] Judgement Order, 6th April 2020, https://main.sci.gov.in/supremecourt/2020/10853/10853_2020_0_1_21588_Judgement_06-Apr-2020.pdf [3] Id [4] PRSIndia, Functioning of Virtual Courts, https://www.prsindia.org/report-summaries/functioning-virtual-courts [5] Id [6] TaxGuru, Report on Court Proceedings Through Video Conferencing, https://taxguru.in/income-tax/report-court-proceedings-video-conferencing.html [7] Yukta, Legal Service India, Virtual Courts – The New Norm?, legalserviceindia.com/legal/article-3211-virtual-courts-the-new-norm-.html [8] Yash Agarwal, The Leaflet, Challenges In Setting Up Virtual And Online Courts In India, https://www.theleaflet.in/challenges-in-setting-up-virtual-and-online-courts-in-india/# [9] Constitution of India, Art. 145 [10] Constitution of India, Art. 145, Cl. 4. [11] Id [12] Code of Criminal Procedure, S. 327 [13] Code of Civil Procedure, S. 153B [14] Black’s Law Dictionary [15] Naresh Shridhar Mirajkar v. State of Maharashtra, 1967 AIR, 1 1966 SCR (3) 744 [16] National Judicial Data Grid, https://njdg.ecourts.gov.in/njdgnew/?p=main/pend_dashboard [17] Swapnil Tripathi v. Supreme Court of India (2018) 10 SCC 628 [18] Vanita Bhargava, The Daily Guardian, Virtual Courts In The Time Of COVID-19: Are We Future Ready, https://thedailyguardian.com/virtual-courts-in-the-times-of-covid-19-are-we-future-ready/
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