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Virtual Courts: Challenges and Opportunities

Change is the measure of time[1]. We believe in the ‘potential of technology enabled delivery system'. And we also know the ‘art of pursuance' which has always proved handy in the profession of litigation and continue to assist in judicial endeavors including the making of an exuberant case for a ‘robust' technology enabled future for Judiciary.

In the present scenario, the pandemic has compelled the government to suspend work, movement, businesses, services, liberty and more. The Constitution itself, however , cannot be suspended. Any measures enforced under statutory frameworks must conform to the Constitution. Nevertheless, practically, with the near-complete shutdown of India's justice system , such operation of the Constitution lies in the limbo. Several situations today warrant the intervention of the Judiciary.

For instance, the enforcement of the constitutional rights of life, health and food requires urgent resolution. Any constitutional challenge, however, requires unfettered access to lawyers and courts. The non-inclusion of both in the state's list of permitted activities effectively denies such access. Thus this pandemic and the consequent lockdown have forced the legal profession into overnight digitization.

Peculiarly, the judiciary too has retreated into the background. While the higher courts are hearing ‘urgent' matters, the lower courts are entertaining only ‘remand' cases. In doing so, they have ceded important constitutional and legal space to the executive. Video-based online proceedings have been proposed as an alternative. But their success rest on the assumption that everyone has equal access to properly functioning equipment as well as fast Internet. The idea also assumes that all courts are Internet-enabled and all functionaries are tech-savy.

For the first time in the history of the profession, the Apex Court of India and other subordinate courts are hearing matters virtually, due to social distancing norms. In fact, the Supreme Court of India is pushing for an e-filing system, which will radically change the filing processes for lawyers. With e-filing become a reality, they will be able to file matters at their convenience from any location.

While this is the present scene in courts, even law firms have efficiently adopted remote working models to carry out business regularly with virtual meetings, briefings, arbitration, and hearings during this lockdown. For starters, this virtual revolution will make legal professionals more receptive towards embracing technology to increase efficiency. A great example is the inauguration of two virtual courts for traffic challans captured through cameras, during the third lockdown.

The three fundamental principles namely:

  1. access to justice to common masses;
  2. technology intrinsic element of rule of law; and
  3. making ‘Justicing' an indispensable ‘service' to the people rather than taking it as mere sovereign function, to be considered in making endeavor to establish interface between technology and justice delivery system.
As technology is an adjunct of rule of law but our vision of creating an interface between judiciary and technology, must be looked upon considering the reality to technical access in India and as per the certain data which highlighted that between 2017- 2020 internet penetration has expanded many fold across the length and breadth of the country but as per TRAI data the internet density of India stands at 52 percent, 66 percent population in India resides in rural areas of which only 27 percent has access to internet, and only 25 percent Indian have access to smart phones.

Now as the pandemic has turned the world on its head. No aspect of life has escaped unscathed. And this includes the functioning of courts and tribunals. The Judiciary has limited its work to hearing urgent matters via video conferencing. A lot has been written about how this is an opportunity to improve IT infrastructure of courts so that they can move to video conference hearing as the norm. However, any such move without first revamping procedural law would be futile. And in the present scenario, the outbreak of Covid-19 and the nationwide lockdown has forced the Supreme Court to resort to virtual court hearings. Cases are being heard in full-swing of the Supreme Court. Use of Information Technology is the way forward.

Pendency of cases can be dealt with Virtual Courts

The pend-ency of cases in various courts in India is staggering. The Economic Survey of 2019-2020 dedicates a chapter to pend-ency of tax cases and revenue cases. The survey mistakenly argues for more court infrastructure and judges to solve the problem. On the contrary, the existing infrastructure is grossly under- utilized. There are tribunals such as the Income Tax Tribunal that functions only half-day most of the time.

To make matters worse, most courts are closed for Christmas and summer vacations. Judges are not accountable for efficiency and performance. Thousands of Indians cannot go to courts as legal costs are high and legal procedures are complicated. It is a fact that most tax matters do not necessitate personal hearings. Tax cases reach tribunals and higher courts after lower authorities record all the facts. The High Courts and the Supreme Court deal with issues or interpretation of the law. The bane of the court system is that lawyers on both sides need to be physically present in court. Cases are often adjourned due to various reasons. It is in this context that we make the case for a virtual judiciary.

As per data available on National Judicial Data Grid (NJDG), more than sixty thousand cases are pending in the Supreme Court, forty-five lakhs twelve thousand eight hundred cases are pending in various High Courts. At the district and subordinate court levels, the number of pending cases stand at a shocking two crore – 80% more than 1 year.[2]

And to dispose these cases, the strength of the Judges are 34 in Supreme Court, 1079 sanctioned judges in various High Courts, in which 390 posts are lying vacant. And 22,667 Judges are present in District/ Subordinate Courts, wherever 6000 posts are lying vacant.

This problem of vacancy of Judges is the permanent feature because of the delay in the process of appointment of Judges. Judge population ratio in our country in spite of the best efforts has not been increased to the desired level as it is in the other advanced countries. But the efforts to reduce the pend-ency of cases in the courts have not shown the result.

Infrastructure has been improved, right from the Supreme Court to the Lower Courts. Informix training and orientation program me for the judges to acquit themselves with the latest developments of the new laws which are coming up. Use of Information Technology, right from the mid- 90s does not bring the desired result as expected and most importantly the stress is more on Alternative dispute resolution and reduction then on the proper litigation in the courts. In spite of all these steps taken at various levels, we are not been able to reduce the pend-ency.

This Covid-19 situation came as a blessing and disguise in the sense that use of Information and Communication Technology (ICT) in the courts earlier was basically computerization of the courts, listing the cases as from the computer, posting the judgments on the internet, filing of the petition was also done on the internet. So far as the hearing was concerned, that was not taking place as most of the advocates were reluctant for hearing through virtual courts. The kind of confidence which should be generated among the litigants for the functioning of the virtual courts is concerned because of the glitches in the technology is the another factor because of which it was not taken place.

We should be thankful for this new opportunity where the Judiciary has grasp and the Supreme Court after the Covid-19 passed an order while using its plenary powers under Article 142 of the Indian Constitution to direct all High Courts and District Courts to frame a mechanism for use of technology during the pandemic.

Thus, even in the Covid-19 situation, where physical/social distancing became very important, so that the courts are not crowded and spreading of the disease can be end. Now, the Apex Court is moving towards technological advancement for its functioning and is conducting hearings through video conferencing since March 25, 2020 to maintain social distancing.

As Covid-19 descended without warning as pandemics do, but the Supreme Court responded actively by limiting the presence of various stake holders, sanitizing court complexes, temperature checking at court premises etc. Once the lockdown was announced, it was apparent that courts must continue because criminal justice system cannot come to a halt no matter what and therefore, working of the court was a paramount requisite.

However, economic lockdown during a pandemic may lead to lessening of commercial suits but eventually of increasing criminal cases, delays in interrogation, examination of witnesses and above all liberty of accused who are detained as under-trials for an extended period, was foreseeable and therefore Supreme Court extended limitation period for such cases.


It is pertinent to note that public health emergency initiated due to the Coronavirus pandemic requires active presence of a welfare state but irrespective of the policy decisions of the state, it is a courts duty , civil, criminal, and constitutional to protect the rights of citizens, to ensure governmental accountability and prevalence of rule of law.

Further, the two substantial changes took place in Courts; video conferencing and e-filing, which could have been possible because of:
  1. availability of robust infrastructure already in place;
  2. consultation with stakeholders;
  3. training; and
  4. platform development and testing.

However, the suggestion of the Bar is awaited because the essence of our success in our mission to incorporate technology will lie in the confidence of all stakeholders in the envisioned process. A regulatory regime for virtual hearings over VC which was vital to the process was created.

As Supreme Court has passed an order u/a-142 of the Constitution[1] and a Committee of five Judges of the IT Committees of High Courts was made which prepared a framework of e-filing which is now placed in public regime for their suggestions and implementations. An update on the five projects which namely, laying down an SOP for digitization, SOP for e-filing across the country, rules for live streaming, inter-operable criminal justice system – the ICJS platform and the interlinking of Law Libraries across the country.

Timeline of Virtual Courts

After having laid the foundation of the actions taken by the Judiciary to make Justice a perennial service, the proposition that use of technology enables us to identify the pyramid which is to be attacked first to cure ailments of Justice delivery system. The work on virtual courts started back in around 2007 in two phases, the first of which started from Feb 2007 to Mar 2015 with a sanctioned out of lay of 935 Crore.

This phase was installation of infrastructure in various courts, creating a case Information Software which gave information of the bulk of pending cases in Court across India while phase 2 was launched in August 2015 and it covers four years or until the phase is completed.

As part of e-court project, various initiatives were taken up, model rules on video conferencing were framed and circulated in High Courts for acceptance. One of the stark features of these rules is that it provides for availability of all recourse to CV to public masses. The second feature is the customization of the operating system software, which has used open use source software which has resulted in creating significant saving on public exchequer.

Highlighting a very major leap in making virtual courts a reality, as Virtual courts are working in Delhi since July 2019 and it has been dealing with petty traffic cases related to traffic chalans. As a result of these virtual courts, 20 judicial officers who used to work in these courts have been replaced only one judge who is enable to work efficiently.

E-courts project

The e-courts project was conceptualized on the basis of the National Policy and Action Plan for implementation of Information and Communication Technology (ICT) in Indian Judiciary – 2005 submitted by e-committee, Supreme Court of India with a vision to transform the Indian Judiciary by ICT enablement of Courts.

The e-courts Mission Mode Project, is a pan- India Project, monitored and funded by the Department of Justice, Ministry of Law and Justice, for the District Courts across the country.

The Lacunae must be remedied- in comparison to other Nations

In contrast to India's response, the U.K. first notified legal practitioners as key workers and then notified how different categories of courts shall function. In the U.S, the Department of Homeland Security categories ‘workers supporting the operations of the Judicial System' as essential.

In India, the Judiciary and the executive should have instituted means to serve the cause of justice. A comprehensive response should have outlined the minimum judicial infrastructural requirements; the nature, type and manner of priority cases; enforcement of physical distancing guidelines; and list of key personnel permitted to ply and from courts, prisons, police stations, residencies, etc. These lacunae must be remedied. Justice must not become a casualty to the pandemic.

Opportunities in Virtual Justice delivery system

Practices like conducting arbitrations virtually might become the new normal. Advanced technology tools, increased flexibility, minimal use of resources and time will make virtual arbitration an attractive option for parties and arbitrators. Under the guidance of Justice DY Chandrachud, Chairman of the Supreme Court e-committee, the Supreme Court is committed to the idea of switching filing to an e-format to increase efficiency. In the future, courts might consider alternating between virtual and open court hearings to strike a balance between efficiency and not comprising on access to justice.

This Virtual Court came as a big boon to all of us which will definitely help us in reducing pendency of cases by use of Artificial Intelligence as well as by saving the time of travelling of the litigants, sitting in the comfort of their houses they can argue the cases not only in one court, but may be in two or three courts on the same day with use of IT. It is the blessing and disguise for all the lawyers, the two primary reasons behind it are:
  1. accessibility to all courts throughout the country, so that lawyers can appear anywhere, all that accessibility to justice had come.
  2. digitalized system is good for all the three pillars. As the Interest of the litigant is supreme.
The present Covid-19 crisis throws new challenges to the Indian Judiciary. We cannot jest ourselves into believing that the Covid-19 impact will remain only till the national lockdown is imposed. We cannot also be nave enough to presume that there would not be another pandemic in the future.

Is it not an opportune moment for the Indian judiciary to come out of the clutches of archaic paper and records system and introduce systematic transformation in the justice processes in the interest of the litigant. For how long can the courts remain closed and remain mute spectators to the growing injustice? Would providing a tiny window of undefined ‘extremely urgent matters' help us get over this terrible tide.

Presently, different courts have been using different applications on a trial and error basis. The Supreme Court is using Vidyo, the Kerala High Court is using Zoom (though the Central government has advised that it is not a safe platform), the Karnataka High Court seems to have developed its own in-house video conferencing facilit, Delhi High Court is using WebEx, etc. The need of the hour is not only use of technology, but its uniform application across the judiciary.

There are three thumb rules which can be employed at this stage for e-courts:

  1. In e-courts, the focus should be on ‘Courts' and not ‘e'. It is necessary that the technological reforms should treat the Judiciary as a holistic entity. Fragmented success over the use of technology in different courts is unlikely to yield the desired results of the litigants.
     
  2. There is a difference between computerization and e-courts. We have pass the stage of computerization in Indian courts. e-Courts however, must look at the needs of the litigants and introduce systems that can precisely meet those needs. It is the difference between being computer-centric and litigant-centric. The time has come for opting the latter so that purpose for the which journey was embarked can be achieved.
     
  3. Focus ought to be on transforming the process through standardizing. It is highly desirable that ICT – based applications with uniform look and feel and most important, functionality, are adopted for the entire judiciary.

In simple words, advantages are as follows:
  1. Social distancing and safety.
  2. No transportation, higher productivity.
  3. Ability to attend or appear in many different forums in a single day.
  4. Less time wasted waiting for matters to be called.
  5. Proceedings are on video, therefore documented- increased scrutiny.
  6. Younger lawyers are getting more time from Judges.

Challenges in Virtual Court System

Litigants are unable to get justice through the process of virtual courts due to unsatisfactory Wifi and other technical problems, we cannot expect an effective hearing in this process.

Bar Council of India

In the present circumstances, the virtual courts may seem a necessity, however, it goes without saying that at present there are a whole lot of glitches and shortcomings in its execution.
  1. The e-filing process is riddled with endless complications.
     
  2. e-Courts will also prove to be cost-intensive as setting up state of the art e-courts will require the deployment of new age technology.
     
  3. Hacking and Cyber security:
    On the top of technology, cyber-security will be a huge concern too. The government has initiated remedial steps to address this problem and formulated the cyber security strategy but it is more on the side of prescribed guidelines alone. The practical and actual implementation of the same remains to be seen.
     
  4. Infrastructure:
    Challenges can erupt due to insufficient infrastructure and non-availability of electricity and internet connectivity in most of the Talukas/Villages. Electricity connections is a must and computers to ensure justice reaches every section
     
  5. Maintaining e-record:
    The paralegal staff is not well equipped and trained to effectively handle document or record evidence, and to make them readily accessible to the litigant, to the council as well as to the court.
     
  6. Last but not the least, online court hearings are not the same as standing in front of the mic with your opponent standing by your side, and the judge sitting before you, looking intently for what you have to say. The core remains the same, but the paraphernalia has changed and many lawyers are struggling to adjust.

Conclusion and Way Forward
The Supreme Court did not stop for even a single day since the pandemic made its presence felt in mid-March and the nation came to a standstill during the months of lockdown. Recently the court completes 100 days of the Virtual Court (VC) system, agreeing that things may not be perfect but they are evolving. A statement issued by the court recently has said that 1,021 Benches were constituted since the inception of the virtual court system between March 23 and August 20.

The virtual courts have 15,596 cases on board and have disposed of 4,300 cases approximately. Over 50,00 advocates represented their cases during this period.

The statement even records the number of footballs – advocates, litigants and media persons – to the video conferencing hall at a whooping 65,000.

Covid-19 infection arrived with the suddenness of an ambush and the ferocity of a fire as it spread across the human communities across the globe. It distinguished itself with deviant behavior, unpredictable symptoms, total camouflage…, - Apex Court's Statement

The Supreme Court said that the core functionality of open court hearings was crippled by the onset and the sudden lockdown. The virtual court system was born out of the necessity of an alternative. The statement said that the SC Registry functioned with 30% staff strength. Though there were no fatalities, 125 staffers and their families were infected.

No doubt, the VC system needs improvement and its constantly been evolving. Despite all these challenges and hurdles, hearing of more than 15000 matters indicates the success of hearing through video conferencing in Supreme Court of India.

As technology is here to stay, therefore, finding mechanisms to make it better will be the step in the right direction.

End-Notes:
  1. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.
  2. National Judicial Data Grid (NJDG)
  3. Recollections of my non- existence by Rebecca Solnit's.
Written By: Yashvi Singh

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