Meaning of Court and Virtual Court

A court is a place where trials and other legal cases are decided by an abjudicating body consisting of judges and other legal officers including parties to the case at one place. Whereas virtual Court is a concept where litigants or lawyers don't need to physically appear in court and adjudication of matter takes place via online mechanism by a judicial officer. Unlike traditional court proceedings in virtual court, there is no need for counsel or litigant to have a physical appearance in the court.

Definition:
In India neither the Civil and Criminal Procedure code nor the General Clauses Act, 1897. Incorporate the definition of the term Court. However, as per the legal glossary of the Legislative Department, Ministry of Law and Justice, Court' is a place where justice is administered. [i]

Section 3 of the Evidence Act, defines 'Court' as follows:

Court includes all Judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence. [1]The Supreme Court has observed that the definition of court U/s 3 is not exhaustive. A forum though named has Arbitral Tribunal, which was empowered to have powers of civil courts such as examining witnesses on oath, summon records, award costs, etc was held to be court.[ii]

Under Indian Penal Code[iii], Court of Justice is defined as a judge, who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of judges is acting judicially.

Further, no statue in India explicitly defines rules and regulations in respect of Virtual Court Proceedings, but due to the outbreak of the novel coronavirus COVID- 19 and the declaration of lockdown in India from midnight of 25th March 2020, people have been forced to stay at home and practice social distancing. In the wake of the situation, the Supreme Court bench on 6th April 2020 by invoking an extraordinary jurisdiction power as under Article 142 as of the Indian Constitution, issued the guidelines 'In Re: Guidelines for Court Functioning Through Video Conferencing During COVID-19 Pandemic[iv]' for reducing the number of people in the court by restricting entry and maintaining social distancing.

Is Virtual Court a new concept?

When we think about virtual hearing we tend to believe that it is a new development in the present legal system of the world and we think that none of the jurists has thought that days would come where the traditional court restricted its doors to the public and dispense justice by means technology.

But one of the earliest references to Virtual Courts can be found in the works of Professor Frederick I Lederer who is currently the Director, Centre for Legal and Court Technology, United States.

He wrote in 1997:
'The Courtroom is a place of adjudication, but it is also an information hub. Outside information is assembled, sorted and brought into the Courtroom for presentation. Once presented, various theories of interpretation are argued to the fact-finder who then analyses the data according to prescribed rules (determined by the judge through research, analysis and interpretation) and determines a verdict and result. The Courtroom is thus the centre of a complex system of information exchange and management. Ultimately because lawyers and judges deal continuously with data, high technology Courtrooms exist and Virtual Courtrooms are possible. [v]

Professor Frederick as far back as in 1997, had impressive foresight. He had predicted how digital technologies will transform the legal system. This COVID-19 pandemic situation trembles the whole world and forced courts to opt for initiative ways to execute their duties and dispense justice. Now virtual courts have become the primary way for dispensation of justice and court insist on the virtual filing of cases and challans rather than physical filling

Virtual Courts at International perspective

On 11th September. 2020 the Department-Related Parliamentary Standing Committee On Personnel, Public Grievances, Law And Justice submitted its 103rd report ON Functioning Of Virtual Courts/ Court Proceedings Through Video Conferencing (Interim report) to Hon'ble Chairman of Rajya Sabha.

In this report, they have stated that virtual Court is no new phenomenon Many countries have adjudicated cases ranging from low-value civil disputes to complicated criminal cases
Virtually without advocates, litigants and witnesses having to set foot physically in the Courtroom.

In this report, they have given many examples of a country having a virtual courtroom system.

In the United States, many State Courts have either installed web-based equipment or have Virtual Courtrooms. Mc Glothin Courtroom, set up by The Centre for Legal and Court Technology at the College of William and Mary Law School in Virginia is the world's most technologically advanced trial and the appellate courtroom. The Supreme Court of Nevada has web-based electronic filing (e-filing) system available for 24/7 for the filing of criminal and civil cases. [vi]

The Singapore Supreme Court has successfully set up a Virtual Courtroom known as "The Technology Court", which has a Local Area Network (LAN) with an Internet connection and which allows the use of imaging, multimedia and video conferencing. It also has a Litigation Support System for Presentation (LSSP), a Computer-Based Recording Transcription System (CBRT), a sophisticated audiovisual system (AVS) which allows various types of audio and video information to be presented with ease and a video conferencing to allow foreign witnesses to give evidence in any proceedings.

Turkey has a national e-judiciary system called UYAP. In 2012 UYAP won the UYAP, the UN's Public Service Award, UYAP has provided faster, more transparent and more cost-efficient judicial services than ever before. UYAP links together all judicial institutions in Turkey and it provides the possibility for the whole judicial process to be carried out through an electronic document flow. The system currently has 1.9 million users, and it has resulted in annual savings of approximately 100 million USD, as well as significant environmental benefits such as a paperless working environment.

In Canada, the court uses videoconferencing technology to testify witnesses in civil matters over a decade. Rule 1.08(1) of the Rules of Civil Procedure permits trial evidence by telephone or video conference. [vii]

In Italy, they also have a mechanism called On-line Civil Trial which covers all civil cases throughout the country The system allows electronic processing of cases which results in saving of time and money. The system has high ended security features such as two-factor verification, digital signature and certified emails.

The functioning of virtual courts in India

Before the pandemic situation, Virtual courts or video conferencing is done only in the trial of warrant cases to prevent the movement of prisoners between court and jail.[viii]
In such unsettling times, the supreme court has paved the way for making justice available by evoking powers under Art. 142 to Constitution to allow urgent hearings of the matter via online video conferencing means by issuing guidelines passed on 6th April 2020 covering all the High Courts in the Country. The District Courts were to adopt the mode of video conferencing prescribed by the concerned High Court

Judicial Precedents in respect of Video Conferencing

In Swapnil Tripathi v Supreme Court of India, [ix] it was held by three-judge Bench of the Supreme Court of India. that proceedings of cases having constitutional and national importance before the SupremeCourt should be broadcast to the public. The Court said that this right should not be absolute. It provided a set of Model Guidelines which should govern the courts' discretion on when such broadcast should be used.

In the year 2014, the division bench of justices AK Goel and UU Lalit was considering a transfer petition filed by wife seeking the transfer of divorce case filed by her husband because she cannot undertake a long journey and contest the proceedings at Jabalpur by neglecting her minor child. She also alleged that there is an apprehension of threat to her security while attending the proceedings in Jabalpur. While allowing the transfer petition the bench observations on the use of technology like video conferencing to hear the matter when both parties are not located within the jurisdiction of a court.[x]

However, in October 2017, the 3 judge bench in Santini v. Vijaya Venketesh had overruled directions issued in the case of Krishna Veni Nagam v. Harish Nagam (judgment dated 10th March 2017). The 3-judge Bench had delivered its verdict by a majority of 2:1.[xi]

Pros and Cons of Virtual legal System in India

The 103rd report (interim report ) by Department-Related Parliamentary Standing Committee On Personnel, Public Grievances, Law And Justice on functioning of virtual courts [2]under the chairmanship of Bhupendra Yadav, explains the benefit and short-comings of virtual courts.

Advantages

1. The virtual legal system will help to adjudicate the matter promptly because justice delayed is justice denied and in India, more than 30 million cases are pending.
   
2. Cases like Summon Trial, Summary trial, and traffic challan and other petty offences case should be decided by virtual courts it will reduce the pendency of cases which has been clogging the wheels of Justice for decades.
   
   
3. Access to Justice is a Fundamental Right. Virtual Court system can increase access to justice by addressing locational and economic handicaps, especially it will be beneficial for people living in remote areas because you don't need to travel again and again for your case if you are living outside the limits of courts in which your matter is lis- pendens and bear other miscellaneous expenses in virtual courts
   
   
4. Videoconferencing facilitates a lawyer to argue in any Court in any part of India. Cases can be heard from several Courts in a single day. A lawyer can argue in one Court in the morning and be present for a case in another Court later in the day. This is not possible with physical Court hearings. Thus, both advocates and litigants have a wider choice and this will result in a substantial reduction of costs associated with litigation in appellate Courts which may otherwise require instructing a local lawyer.
   
   
5. Virtual Courts also enable vulnerable witnesses to provide testimony from a safer environment. Also, Virtual hearings are more convenient and less traumatic for children, women and victims of abuse and the differently-abled who cannot easily attend physical hearings in Courtrooms.

Drawbacks of Virtual Court

1. In India still, there are many remote areas which don't have a high-speed data connection facility which will affect the workings of the district and subordinate courts.
   
2. The problem of the digital divide, in urban areas you may have big Law firms and very well to do advocates who have sound knowledge of technology. But it is not same in case of rural areas, they will face this virtual system as the digital divide.
   
   
3. Uninterrupted power supply, it is a myth for many rural areas in India to have an uninterrupted power supply of electricity 'While conducting the proceedings, if the power supply gets disturbed from either of side whole proceedings get vitiated.
   
   
4. An open courtroom being an essential part of the democracy in India strives to protect the Right to access to justice and information as protected under Article 19 and 21 of the Indian Constitution and that virtual hearings do not align with the concept of open Court enshrined in the Constitution of India under Article 145(4); Section 327 of the Code of Criminal Procedure, 1973; and Section 153B of the Code of Civil Procedure, 1908 The Chairperson of e-committee of Supreme Court Justice Dr DY Chandrachud We had no choice in the pandemic, but to resort to hearing via video conferencing. They will not be able to replace physical court hearings.[xii]

Conclusion
Necessity is the mother of inventions and due to this pandemic situation now the whole country has opted for new ways to carry their functions. The Supreme Court of India issued guidelines on how the courts will work across the country in this pandemic situation will dispense justice to its people.

There are some outcomings of this Virtual Court System but if we all work together we can overcome this and we have witnessed many countries already have this virtual court system and they are proven beneficial to its people in terms of economy as well as for the environment.

I am of the view that we should carry this system regarding e-filling, paying E-Court fee and challan, and during the final argument of the case.

the right of access to justice should also be expanded to the public by live-streaming the proceedings in some cases. And cases like matrimonial, domestic violence or rape cases. Matters of national security, defence and other important issues should be excluded.

The following system can be used to resolve commercial disputes, particularly those related to arbitration and e-commerce. Thus, the notification of the SC to take up virtual court proceedings is a step towards success and improvement in the judiciary

End-Notes:

1. Rajya Sabha, Parliament of india rajya sabha, 103rd (Interim Reprt) Public Grievances, Law and Justice (2020
2. Indian Evidence Act, 1872, sec 3, Universal's Lexis Nexis (2016)th edition
3. Indian Penal Code, 1860 Sec. 20, Universal's Lexis Nexis 2016th edition
4. https://main.sci.gov.in/supremecourt/2020/10853/10853_2020_0_1_21588_Judgement_06-Apr-2020.pdf (last visited Sep 14, 2020).
5. Rajya Sabha, 103rd Report , supra note 1
6. E- Filling Instructions - https://nvcourts.gov/Supreme/How_Do_I/Training/E-Filing_Instructions/ (last visited 14th Sept. 2020)
7. E- Filling Instructions - https://nvcourts.gov/Supreme/How_Do_I/Training/E-Filing_Instructions/ (last visited 14th Sept. 2020)
8. Code of Criminal Procedure, 1973 sec. 275 , Universal's Lexis Nexis, 2016th edition
9. (2018) 10 SCC 628
10. Krishna veni nagam v. harish nagarm T.P. (c) No. 1912, 2014 SC
11. Family Courts Must Encourage The Use Of Technology To Facilitate Speedy and Effective Solutions: Justice Chandrachud Explains His Reasons For the Dissent [Read Judgment], , https://www.livelaw.in/family-courts-must-encourage-use-technology-facilitate-speedy-effective-solutions-chandrachud-j-explains-reasons-dissent-read-judgment/ (last visited Sep 14, 2020)
12. Virtual Courts Cannot Fully Replace Open Court Hearings; Technology Can Make Justice System More Efficient & Accessible : Justice Chandrachud, , https://www.livelaw.in/top-stories/virtual-courts-cannot-fully-replace-open-court-hearings-technology-can-make-justice-system-more-efficient-accessible-justice-chandrachud-157260?infinitescroll=1 (last visited Sep 14, 2020

Written By: Harsh Agrawal, 9th Sem. BALLB Kalinga University