This Article is written by Mr Kartikeya Kothari of MNLU, Mumbai.
“When written in Chinese the word ‘crisis’ is composed of two components. One represents danger, and the other represents ‘opportunity’” – John F. Kennedy
The COVID-19 pandemic has taken a toll on all aspects of humanity. To ensure no delay in justice delivery system in India, and to preserve the fundamental rights of our sacred constitution, official launching of virtual court was made in 2019 in Faridabad with immediate effect to functionalities. Before that, online mode did not dominate much, and traditional courts prevailed. A significant change to virtual courts happened during the current Covid-19 pandemic. Now due to technological advancement, capturing testimony by video conferencing has been easily and efficiently conducted. Approval for video conferencing was given by the Supreme court on April 6 ,2020 under Article 142 and its domain was extended to high courts of all the states. In the case of State of Maharashtra v. Praful B Desai, the Supreme Court expanded the scope of video conferencing and virtual courts duly adopted the latest technical trends.
In India, the process of digitizing the judiciary took its first step in 1990 by NIC(National Informatics Centre) through a special application COURTIS, a court information's system. This enabled computerization of information related to cases and ‘JUDIS’, which provided the complete text files of cases. Selective courts were entitled to this system. It formed the backbone of judiciary during the pandemic so justice was not delayed in critical cases.
As we sail through an era of digitalization, we find a huge potential for digitization and use of artificial intelligence tools to be implemented for an online system of court procedures. This will have obvious advantages of cutting costs on infrastructure and licenses, staff, security, etc. As the whole process is scheduled and digitized, the necessity of attending courtroom by the concerned parties can be obviated. Digitization and computerization would bring accountability of the judicial system.
During the Covid-19 pandemic, virtual court procedures have been successful in mitigating the spread of infection in courts, using remote video technology. We have been witnessing huge piles of files wrapped in a red cloth. In a paper conserving mindset, this restrictive mode is welcome. The Supreme Court has promoted this requirement whilst making changes in the filing procedures, and the e-databases are an easy option to access and update files by click of a button rather than tedious and time-consuming paperwork by the court staff. Data sharing amongst the courts also facilitates the process of trials.
Furthermore, if all judges, litigants, their advocates, court staff, media, law students and the public have means to access the online court proceedings, this would give a wider access to the procedural understanding of justice as embodied under Article 39A of the Constitution, due to reach of internet in general. Currently, 61% of Indians have access to the internet. But since these are unevenly distributed, the claim of access to judicial proceedings becomes diluted. Although India is the second largest user of internet in the world (TRAI data), rural India that stands only at 27.57 of subscriptions per 100 people in 2019.
An online audio-video and in-court testimony are as different as a theory and practical methodology. The latter offers a greater opportunity for evaluation of disposition of the witness, behavior, and expressions by the court as compared to the former.
Cross-examination is absolutely essential to discover the truth. Physical presence paves the way for it. Verbal cues are distorted during video conferencing. Also, the non-verbal cues such as facial expressions, posture, etc. may also get distorted as fear factor and presence of people pressurizing him to divulge the truth aren’t physically present. For example, delayed streaming or weak internet connection may hinder detecting facial reactions and they may not be interpreted accurately. There is also a difficulty in decoding body language as these may be out of view in a live stream. Another problem that arises in recording testimonies and collecting evidence is that the litigant or the witness testifies from an environment either their home with their well-wishers or from office. Such scenarios lack the necessary tension, binding of truth ,the pressure of presence of judicial and police officials and thus lacks sincerity. Section 159 of the Indian Evidence Act, 1872 permits a witness to refresh his memory by writing down facts during the time of examination with the permission of the Court. In such a situation where a witness, during his cross-examination is given this privilege of answering questions during his cross-examination with written material placed before him will completely defeat the entire purpose of cross examination.
A continuous surge in internet accessibility with social distancing due to pandemic, it becomes necessary that Courts adopt a technology-driven, hassle-free mechanism to continue its justice delivery system.
The modern judiciary may function through the adoption of virtual courts for conducting proceedings in the post covid era. But, the quick adoption of virtual courts by the Apex Court and few High Courts might be questioned on various basis, and video conferencing raises multiple complex concerns. Technological advancements will bring legal issues with it, the most important being cyber-security. The government has made guidelines and formulated the cyber security strategy, but looking at its multifarious diversification and security breach issues, we are yet to certify its authenticity.
Coming to a personalized practical approach, a large number of litigants and advocates may not have access to internet connectivity and required infrastructure and gadget knowledge in virtual hearings .A serious concern of this shortcoming is a large population group is devoid of the privilege of the modern justice delivery system.
How far the lower courts would benefit, is another question as the first call for all cases initially are taken up by lower courts. The ramifications and the technology may not be shared evenly.
Poor infrastructure and quality of internet access, poor audio and video facilities, power cuts, failure to create links for proceedings at the agreed time, failure of multiple parties to participate, notably affect interpreters and witnesses, creating chaos and confusion as a whole. Not all lawyers have the knowledge of information technology. Hence training and outreach programs must be conducted and internet service by professional government agencies must be provided.
CONCLUSION AND THE WAY FORWARD
Virtual courts are a concrete example of globalization and digitalization, and establish Indian technological standards at par with the other judicial systems in the world. The compulsion of introducing virtual courts after the Covid 19 crisis brings a new opportunity of upgradation. India's future of 'internet courts' is close and days are not far when we will see a well-established ‘virtual court’ working system in India. Numerous loopholes or obstacles in the implementation of a digitalized system will have to be overcome. This may appear easy, but digitization comes with its own pros and cons. Indian judicial system is a complicated and staged one ,with intricacies subjected to many moral,social and philosophical reasoning. Attending to the need of the hour,Indian judiciary must be revamped with latest gadgetry to sustain its value as modernized institution in global sense. This must be accomplished on an urgent basis to build up confidence for future generations.
References
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