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Signing Up For Virtual Courts But Real Justice-A Need For Delicate Balance In India

The Novel Corona virus (COVID-19) pandemic had a significant impact on the operation of nearly every institution. Judiciary is one of them[1]. COVID-19 crippled the traditional court system thus making the Supreme Court realize a need to be upheld JUSTICE in the rarest of rare times. As a result of which the hon'ble Supreme Court (SC) exercising its power under Article 142[2] of the Constitution of India, allowed the proceedings of the court[3] to be carried through video conferencing[4] and e-filing.

This is not the first time that the courts are using technology for Justice Delivery. However, past few months saw a giant leap and brought together the virtual court system which had been in existence for a while but was used in exceptional circumstances only.

Evolution And Status Quo

The e-court project was launched on the basis of “National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary-2005”[5] which was submitted by the e-committee of SC of India. The project brought about a change in the traditional court system and led the way to advancement through digitalization[6].

After successful introduction of e-payment facilities the first e-court was established in Delhi[7]. The court functioned through video conferencing and soon led to such courts in Punjab and Haryana as well.

The courts have also extensively modified the law and included the technology as and when required. A wider scope has been given in Section 230 to 234 of CrPC[8] as well as section 30 of CPC[9] so as to include appearing of witness through video conferencing if the circumstances do not allow physical presence.

By virtue of the amendment in the Evidence Act and insertion of sections 65A and 65B[10], a special provision for evidence relating to electronic record and admissibility of electronic records (including video conferencing) have been introduced.

This position had been consolidated in 2003, in the landmark judgment of State of Maharashtra v Dr Praful B Desai [2003][11]. The grounds for examination through video conferencing have ordinarily been the party/witness residing abroad[12], bad health[13] or was suffering from post-traumatic disorder[14]or testimony and cross examination of foreign expert witness[15]. The facility has also been used by the subordinate courts, where the judicial officer needs to record evidence of under-trial prisoners for security reasons and the courts have opined that it is a cost-effective method and avoids delay of justice.

However, the process is carried out in consideration of very strict precautions as to both the identity of witness and accuracy of equipment used.[16] The presence of one deputed officer, signing of the written transcript of deposition, ensuring a non-coerced statement with recording at both ends certifying the identity and administering oath and several other rules have been laid[17] now and then. It is also noted that expenses and arrangements have to be borne by the person availing the facility.

Such wide presence of the virtual system of Justice clearly indicates that it is not new to us and in the past we have had a successfully engagement with technology to deliver Justice. However, using the virtual system in exceptional cases is one and employing it as a primary system is whole another task.

The COVID-19 pandemic highlighted a loophole whereof in the absence of any alternative, virtual court system was practiced. This attracted the attention of the nation and ignited the long-standing debate on pros and cons of virtual court system.

The primary duty of the courts is to ensure that it is fair and follows the due procedure of law in imparting Justice.[18] The procedural laws speaking through several provisions[19] eliminate any possibility of taking a risk of mal-practices as regard to the procedure. In that light, substituting a new system is a tedious task yet not impossible. On a closer observation it can be seen that the traditional system has some shortcomings that can be dealt using technology and the technology has some shortcomings that need resolution before diving into it.[20]

Challenges To Real Justice

Signing for Virtual Courts might land us in a situation where justice itself is not real if adequate planning and backups are not considered beforehand.
Ensuring good bandwidth connectivity[21] to the whole country is the most basic yet very crucial challenge. The legislature must frame policies and allocate funds to incentivize the public sector to reach the core of the nations.

The level of technology that is required to ensure hack-proof platforms is very high[22]. It requires both skills as well as monetary investment to develop such platforms[23]. The allocation of 700 crores[24] by the centre was a huge step in this regard however, the system could not work effectively as the funds never saw the light of the day.

The uncertainty as to confidentiality and evils of technology such as face changer and witness credibility are major questions on the way. There is a need to develop specific laws in this regard by formation of a high powered committee.[25]

The efficacy and importance of open trials for upholding the legitimacy and effectiveness of the courts for enhancing public confidence are paramount to justice dispensation in India.[26] Thus, provision must be included for live streaming of the court proceedings.

Analyzing the system being practiced in other countries[27], it is safe to conclude that we do have the requisite technology present today. All we now need is a strong will and a spirit to adapt to the new age solutions.

Prospects Of Virtual Court Systems

If we go by the data India has a pendency of 3.7 million cases for over 10 years[28] which can be attributed to the simple fact that the aggrieved are tired of visiting courts and have stopped appearing or worse that aggrieved keeps on appearing but the accused claims unreasonable absence. This has not only created a huge pendency but has also raised question mark on justice itself. This can be resorted through virtual courts as the parties can join in through their own systems and will have a speedy access to justice.

The corruption in courts is not a concealed fact.[29] The very trend of the case file requiring money from every employee that it passes through de-motivates the poor from going to courts. The poor cannot afford to cover the costs of corruption and thus keeps hanging between the system and justice. This can be easily be corrected through virtual courts. As the transparency level is very high and no additional corruption charges needs to be paid.

The cases of witnesses or the aggrieved being murdered on their way to the court and the prisoners escape while being taken for the hearing are very common. These instances run against the very essence of justice itself ,as the state fails to protect the individuals against the crime and then even fails to secure their lives. The Rape case in Unnao[30] and the rape case against Asaram[31] are the prime examples here. The virtual courts can however ensure that the victim approaches the court within a safe boundary. The recorded testimony of witness can help in more witnesses coming forward and also protect their lives as the perpetrator will lose interest in the witness after he/she has testified.

The apprehension created on the victims by the accused or their lawyers in the courtroom at several instances[32] overturns the truth and this can be effectively prevented through virtual courts.

Suggestions To Maintain Balance
The huge amount of expenses that the rural people incur while travelling to the cities to get access to justice not only de-motivates them from approaching to the court but it also speaks against the constitution[33]. If we use technology to establish a virtual setup alongside the Panchayat office, the justice will be easily accessible and will in its true sense reach the citizens.
Classification of cases can be done[34] to see the level of care that the system needs to take.

For instance, civil cases can easily be covered through Virtual courts as they involve private interests of the party. The transcript of the court proceedings can then be signed by the parties to confirm legitimacy.

In context of criminal cases, the court needs to ensure a free and safe environment for the victim and witnesses to testify.[35] Virtual courts will find it a little difficult to ensure this but not impossible. It can be dealt using a separate judicial police which can ensure a free statement and the safety of such individuals.

The monetary expenditure might be a point of concern at the moment. But as the courts come into action, we will also save a lot of money on traditional courts as reported by the Delhi court after it employed such a court.

The installation of systems at jails and at accessible points in the cities and towns will be cost efficient as well as a safe option to carry out the trial.[36] The electronically generated documents will make the courts go paperless which will save 11 billion papers a year amounting to 1.3 million trees & 109 billion liters of water[37].

Adequate technical knowledge can be provided to the young students and lawyers at the very onset of their career. And efforts can also be made by the Bar to provide the requisite knowledge to the advocates through training programs. So that growth does not come at the costs of leaving people behind.

Need For Reformation
It is not necessary to bring about the transformation in haste; however it would be inadequate if the transformation is carried out at the pace which existed in pre-corona times[38]. The transition has to be smooth by maintaining the balance between the good and the challenges.

If we look at the legal systems of UK or USA, we can notice that they have started using AI driven courts[39] where questions of law are addressed by technology. This has made accessibility to justice easy and has opened the doors to entirely AI driven courts based on codification and interpretations. However, India is still struggling with reaching the corners of the nation.[40] This situation has to be leveled through advancement and development. Ignorance will no longer help and it is high time to take some serious steps in the direction.

We cannot outdo the work-load of such a huge population with the existing traditional systems.[41] And in not doing so we are inviting a society which does not fear law even though it exists. Justice served after decade[42] does not make much sense and casts a wrong impression as if law is going to wait for a long time before acting.

We are standing at a point, where virtual court system is applied only in cases of special circumstances[43]. We do have the requisite legal as well as technical competence to reform the system as suggested by the legal position discussed earlier. Therefore, what needs to be do is the improvisation of the pre-existing system. Certain organizations like Daksh have done detailed analysis to construct a road map on the subject matter which can be of immense help as long as the country is ready to empower this shift.[44]

It is an accepted fact that law lags behind technology[45] in terms of development in legal provision. But it must run at par with the technology where it can help law get stronger and ahead of the criminals.

Thus, it is safe to conclude that COVID-19 has provided Indian Judiciary with an unfortunate opportunity by opening the gates for modernization. It must be welcomed by the courts but at the same time the courts needs to be cautious so that odds are balanced and free as well as speedy justice is served.

End-Notes:
  1. Ravindra S Garia, Covid 19 Pandemic and the judiciary, (May 14, 2020), Available at: https://theleaflet.in/covid-19-pandemic-and-the-judiciary/#
  2. Constitution of India,1950( provides discretionary power to the Supreme Court as it states that the court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.)
  3. Re: guidelines for court functioning through video conferencing during covid-19 pandemic, 6/04/2020, Suo motu writ (civil) no.5/2020
  4. Accord, Sites includes links of Zoom and other platform, https://vcourts.gov.in/virtualcourt/index.php
  5. National Policy and Action Plan for Implementation of Information and Communication Technology(ICT) in the Indian Judiciary-2005, E-committee Supreme Court of India ,(01/08/2005), Available at: https://districts.ecourts.gov.in/sites/default/files/action-plan-ecourt.pdf
  6. See also, Phase Plan, Available at: https://services.ecourts.gov.in/ecourtindia_v6/static/about-us.php
  7. https://delhidistrictcourts.nic.in/
  8. Code of Criminal Procedure,1973
  9. Section 30, Order XVI and Order XVIII of the Code of Civil Procedure (CPC) 1908.
  10. In effect since 17 October 2000
  11. Refer, State of Maharashtra v Dr Praful B Desai, 2003 4 SCC 601
  12. Refer, Praful B Desai, Liverpool and London Steamship Protection and Indemnity Association Ltd v MV ‘Sea Success I' & anr [2005]
  13. Refer, Alcatel India Ltd v Koshika Telecom Ltd & ors 2004 (3) Arb. L.R. 107 (Delhi)
  14. Refer, Sakshi v Union of India [(2004) 5 SCC 518]; Sheeba Abidi v State & anr [2004]
  15. Refer, Dr Kumar Saha v Dr Sukumar Mukherjee [2011]
  16. Refer, Twentieth Century Fox Film Corporation v NRI Film Production Associates (P) Ltd [AIR 2003 KANT 148] and Amitabh Bagchi v Ena Bagchi. AIR 2005 Cal 11
  17. Refer, Supranote 11, para 24.
  18. Accord, AH Hawaldar, Evolution of due process in India, (October 2014), Manupatra
  19. Code of Civil Procedure,1908 and Code of Criminal Procedure,1973
  20. See, Analysis through 4 papers by Daksh Foundation, Available at: https://dakshindia.org/next-generation-justice-platform/
  21. Rank 109 in international index of Internet Speed and Internet penetration rate is 50%, Available at: https://www.statista.com/statistics/792074/india-internet-penetration-rate/
  22. CDN nodes can be used ,See , White paper series on Next Generation Justice Platform paper 4,pg 41, by Daksh , September 2019
  23. See, White paper series on Next Generation Justice Platform paper 3 by Daksh , September 2019 The cost calculation for purposes of development by DakshIndia Foundation ,https://dakshindia.org/wp-content/uploads/2020/02/Paper-2_Transition-and-Implementation.pdf
  24. Justice Madan Lokur, on record, stated that the XIV Finance Commission had allocated a sum of Rs. 700 Crores to develop a common software for the purpose of case and court management.
  25. See, White paper series on Next Generation Justice Platform paper 3 by Daksh , September 2019
  26. Swapnil Tripathi vs Supreme Court of India Writ Petition(Civil) No. 1232 of 2017
  27. See, White paper series on Next Generation Justice Platform paper 1 by Daksh ,Pg 17 to 23, September 2019
  28. Data in accordance with NJDG( National Judicial Data Grid), Some critics say that the judiciary in India is over burdened and the days are not too far that it may collapse on account of its overweight unless some remedial steps are taken. Justice BB Malhotra Judge Allahabad High Court, in an article “Court Management” published [J.T.R.I. JOURNAL – First Year, Issue – 3 - Year – July – September, 1995]
  29. Nayana RenuKumar, The Indian Judiciary on trial: Tackling corruption in India's Courts, The Global Anticorruption Blog, 12/02/2016
  30. Accord, https://www.deccanherald.com/national/north-and-central/unnao-rape-all-you-need-to-know-about-the-incident-750523.html
  31. Accord, Jayshree Bajoria, Asaram Case Highlights Need for Witness and Victim Protection in India Published in:CNN News18, April 27,2018
  32. Accord, The minors and women must be protected against sharp words ,see, https://www.unodc.org/documents/justice-and-prison-reform/Justice_in_matters...pdf
  33. On average, each litigant spent Rs 519 per day to attend court. Even more unfortunate is the fact that litigants with an annual family income of less than rs 1 lakh per annum spent 10 per cent of their earnings in attending court hearings, other than legal fees, in a year. Survey by Daksh Foundation on Expensive road to justice, Available at: https://www.indiatoday.in/magazine/cover-story/story/20160509-judicial-system-judiciary-cji-law-cases-the-long-expensive-road-to-justice-828810-2016-04-27
  34. In China and other countries, ODR mechanisms are being used to adjudicate on domain name disputes. The courts are utilising Artificial Intelligence and blockchain for resolving disputes.
  35. Due process of law and section 164 of Code of Criminal Procedure, 1973
  36. From 2003 till 2005 that is within a span of two years the High Court of Karnataka was able to save amount to a tune of Rupees ninety three lakhs eighty three thousand five hundred and forty one. Since then, it is under various stages of completion and functioning at the rest of the jails in the State through jail video conferencing.
  37. https://www.thequint.com/news/india/indian-judiciary-uses-eleven-billion-papers-in-a-year-a-million-tress-and-hundred-and-nine-billion-litres-of-water#:~:text=Indian%20Courts%20Use%20A%20LOT,109%20BILLION%20litres%20of%20water.
  38. Supra Note 36
  39. Supra Note 27, Pg- 20 -23
  40. Sourya Banerjee, The problem of access to Justice in India, May 30,2018, Available at: http://onefuturecollective.org/the-problem-of-access-to-justice-in-india/
  41. Supra Note 33
  42. Justice Delayed is Justice Denied, Example- Uphaar Cinema case and Jessica Lal's case
  43. Supra note 11
  44. https://dakshindia.org/next-generation-justice-platform/
  45. Fenwick, Mark D.; Kaal, Wulf A. Ph.D.; and Vermeulen, Erik P.M. "Regulation Tomorrow: What Happens When Technology Is Faster than the Law?," American University Business Law Review, Vol. 6, No. 3 (). Available at: http://digitalcommons.wcl.american.edu/aublr/vol6/iss3/1
Written By: Vranda Agarwal - Second year BALLB (Hons.) student at NLIU, Bhopal
Email: [email protected]

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