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Virtual Courts - The New Norm?

Justice must prevail in the toughest times as vocalized by Churchill The then Prime minister of Great Britain exclaimed during the Germans bombing London when he was briefed on the casualties and economic collapse. He asked, Are the courts functioning? When told that the judges were dispensing justice as normal, Churchill replied, Thank God. If the courts are working, nothing can go wrong.

Internet can be used at all junctures of proceedings from filing till order. Court rooms are changing as technological advancements have over taken which is dependent on computers and information technology. Suddenly, virtual hearings can't take over conventional court rooms. But, our goal is clear.


India in the current scenario functions with three kinds of Courts:
  1. Conventional Courts - Located in a court complex where physical presence is imperative of judges, litigants and lawyers.

  2. Online court-where only the judicial officer (The Judge) is physically present in the court

  3. Virtual Courts - where neither the judge nor the lawyer is present. The judgement is dependent on Artificial Intelligence where the order is passed according to the inputs made by the litigant.
Ministry of Electronics and Information Technology have defined Virtual Courts as A facility that has been provided for Litigants to file the plaint electronically through e-Filing and also pay the Court Fees or Fine online.Litigant can view the status of the case also online through various channels created for service delivery.[1]

Virtual Court is a concept aimed at omitting the presence of litigant or lawyer in the court and adjudication of the case online.

Virtual courts are not up to minute courts Tihar Jail already initiated the system in the past known as Tihar Pilot Project under which the procedure postulates prisoners being produced in courts not physically but through video conferencing. It is called a Pilot Project as Pilot denoted routine remand cases of prisoners. Several Courts have adopted the Project with certain variations.

Open Court System
The open court principle is enshrined in the Constitution of India under Article 145(4) ; Section 327 of Criminal Procedure Court,1973 and section 153 B Code of Civil Procedure and Article 19 preserves the Freedom of speech and expression with Freedom of Press the principle protects a broad scope of activities such as Public Attending trials and Open for media house personals etc.

Only under special and limited cases as prescribed by law does the court have the power of deviating from Open Court forum. The Apex Court of The Country has reaffirmed the principle in the following judgements with passage of time

In Naresh Shridhar Vs State of Maharashtra[2] it was held that Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice.

In the case Krishna Veni Nagam Vs Harish Nagam[3]- the case dealt with Section 13 of the Hindu Marriage Act, 1955, where both parties were not located within the jurisdiction of the same court, referred the parties to participate in the matrimonial dispute cases through video conferencing.

The difficulties faced was conceded by the Hon'ble Supreme Court that it is appropriate to use videoconferencing technology where both the parties have equal difficulty due to lack of place convenient to both the parties. Proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person, wherever one or both the parties make a request for use of videoconferencing,


The Veni Nigam's case was overruled by the Apex court in Santhini v. Vijaya Venketesh[4] by a 2:1 majority. The then Chief Justice of India, Dipak Mishra and Justice AK Khanwilkar resolved - in transfer petition, video conferencing cannot be directed. Whereas, Justice DY Chandrachud wrote the judgement in favour of the use of modern technology and video conferencing. His school of thought has been mentioned below:
  1. The Family Courts Act, 1984 was enacted at a point in time when modern technology which enabled persons separated by spatial distances to communicate with each other face to face was not fully developed. There is no reason for the court which sets precedent for the nation to exclude the application of technology to facilitate the judicial process.
  2. Imposing an unwavering requirement of personal and physical presence (and exclusion of facilitative technological tools such as video conferencing) will result in a denial of justice.

The Open Court System can be traced back to the year 1215 enshrined in the clause 40 of the Magna Carta To no one will we sell, to no one will we refuse or delay, right or justice.It is this clause that postulated for the very first time the idea for subsequent eloquent constitutional principles.

Application
The world wide pandemic outbreak has dragged the legal fraternity further into 21 century. The Supreme Court passed a Suo Moto writ under which Guidelines for court functioning through video- conferencing during the pandemic was mentioned[5].Both the high court and supreme court have adopted a robust mechanism for filling, hearing of cases on all levels. The Apex court has also formulated that the high courts of respective states will draw up rules for video conferencing in district courts.

The same has been incorporated by the seven district courts in national capital. Moreover, the facility for e- filing has been made available at district courts. The physical movement of files and documents is paramount at the district level rather than high courts and that adds on to the challenge. The litigants are being presented by advocates through video conferencing but under exceptional cases where the judge feels the requirement of having a physical hearing such as in the case of bail.

Internationally countries like England, Singapore and Canada have shown us the way as in the England passed Access to justice act ,1999;Singapore has set up technological courts and Canada the Ontario rules for civil procedure allows testimonial disposition through video conferencing and many such initiatives have been taken throughout the world

Backdrops:
Accessibility to justice -Article 39 -A directs the state to ensure proper functioning of legal system. But, it becomes difficult to ensure the same through virtual hearing as India is not a country with such infrastructure advancements and illimitable digital literacy. Only half the population of the country has access to the internet. The rural population has 290 million data network users in comparison to 337 million urban internet users. Therefore, large percentage of population can not have access to justice through virtual hearing.

False witness and evidence - Cross examination plays a vital role in unfolding the truth with the help of facial expressions, body language etc which cannot be detected over the internet and the probability of having false testification increase. This is added by complications of internet glitches.

Identity theft- The chances of disguised identity can increase. According to the due process of court a litigant had to give proofs for their identity as well as that of clients. without human supervision and a global rise in identity threat might increase. another aspect is non actors being able to accumulate key information.

Plus Pointers- Distance- Topography in India has always played a crucial role. Usually it is noticed that their is yawning gap between the distance of Delhi where the supreme court is situated to High Courts.As a result , a lot litigants don't file an appeal this orifice can be filled.

Cost Effective:
Resource and infrastructure consumption can decrease drastically for both the litigant and lawyer.with video conferencing being the new norm the rise in fee for particular geographical reasons, Paper consumptions, time -consumption etc be can decreased.

Conclusion
These tumultuous time have not only put the judiciary under the test of the times but also have given an opportunity to make most of the pandemic by improvising the shortcomings in the legal system. We have an opportunity to innovate in terms of technology and procedure And introspect our existing practices in court that could be better utilized. Indian courts could examines soft law instruments to evolve their own practices and guidelines.

Internet can help us in many ways such as decreasing the work load, scrutinizing the cases, filing procedure, Management systems etc The inculcation of technology in our court rooms will be a gradual one but one that courts should think of incorporating it.

End-Notes:
  1. vcourts.gov.in/virtualcourt
  2. AIR 1 1966 SCR (3) 744
  3. Transfer petition (CIVIL) NO. 1912 OF 2014
  4. Transfer Petition (Civil)NO.1278 OF 2016.
  5. Suo Moto Writ Petition (Civil) No. 5/2020.

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