Authored by Aryan Pratap, New Law College, BVDU, Pune
About less than a year ago, when the first 'virtual court' was established in India in the city of Faridabad, on August 17, 2019, no one, and I dare say, no one in the entire legal fraternity, not to say the entire world, would have imagined that in less than a year, virtual courts would be used in such broad fashion and that virtual courts would be the only hope for justice for a lot of people around the world. But this I’m saying in the wake of the global novel coronavirus 2019, or the COVID-19 pandemic and the nationwide lockdown. If a few months ago, someone said to me that my father, also a lawyer, would be getting ready in the morning to sit in his home office to appear in court hearings, I would have rebuffed the idea so quickly, and stated with utter confidence that courts are so not ready to be digitised. But it is happening nonetheless. And the higher courts in the judiciary are proving that they are efficient enough to be conducting trials and hear matters over the internet, with the use of video conferencing. But it is also only the higher courts and only a privileged class of lawyers that are really reaping the benefits of this quiet, slow but necessary transition, be it only temporary for the time being.
A virtual court is a courtroom that does not exist in the tangible world but only digitally on the internet. Through video conferencing, judges and lawyers, court staff and litigants are all connected over the internet. Countries like the U.K. and the U.S.A. are making wide use of virtual courts to solve disputes and settle legal matters. China has ‘internet courts’ or ‘smart courts’ which make use of non-human, AI (Artificial Intelligence)-powered judges whose jurisdiction covers digital matters such as copyright, internet trade or online sales issues.
The reasons to adapt to this system of virtual courts are manifold in these times of crisis. The quintessential reason for the fast implementation of virtual courts was to stop the spread of COVID-19 by encouraging social distancing. Another reason was the speedy settling of disputes without the need for litigants, lawyers, witnesses to actually appear in court. They can appear in hearings from the comfort of their homes, even in quarantine.
Challenges Faced by Virtual Courts in India
Adhering to the Open Court principle
The principle of open courts has its foundation in the freedom of speech and expression. According to this concept, first mentioned in the 1215 charter Magna Carta Libertatum, the people should have fair, free and open access to the proceedings of the court. Not only the people but also the fourth estate should have free access to proceedings so that people’s faith in the justice system was maintained. The public eye and the fair reporting of the proceedings would also act as checks for fair and objective proceedings. But virtual courts have had little scope for the open court principle up till now. Therefore, live streaming of proceedings of virtual courts is most essential to uphold this principle.
Availability of internet
Perhaps the biggest concern of the legal fraternity should be the availability of the internet to the general public for the safe and efficient implementation of virtual courts. Even when the cost of availing of internet facilities is at a low (compared to earlier times), the general public is deprived of it. According to a 2017 report of The Hindu, approximately 71% of Indians did not have access to the internet, and I doubt the ratio may have increased significantly by now. The subscriptions of the Internet are concentrated in metropolitan cities, and only the privileged class considers it a utility, rather than an unaffordable luxury. Digital literacy is needed among the masses as much as the availability of the internet in rural India.
Digital infrastructure, cyber-security & privacy issues
Not all the High Courts even have adequate infrastructure to transition to online courts, let alone the many district courts and tribunals in the country. It would take a large amount of investment to develop the infrastructure to sustain the existence and maintenance of online justice systems.
Other issues include the privacy of the parties to the cases. As we know, data on the internet is susceptible to theft. And cyber-security is a big concern for the courts before deciding to fully transition to online platforms. Private information of all parties must be safeguarded by the courts against theft and breach of privacy.
Other concerns regarding virtual courts are regarding the physical presence of the accused or the respondent in the courts. The demeanour and body language of a responding party, defendant, accused and witness may give valuable information and insight into the dynamics of a case. The cross-examination is called the ‘the greatest legal engine ever invented for the discovery of truth’. Without the physical presence of the accused in a hearing, the cross-examination would not be as fruitful as the tension of standing in a courtroom, under oath, in front of a magistrate might not be there.
Advantages of Virtual Courts
It can be argued rightly that there are many advantages to virtual courts. These virtual courts are a quintessential feature of the justice system in the time of a pandemic. They conduct speedy trials and deliver justice at a faster rate. And while social distancing continues, virtual courts will continue to dispense justice at a speedy rate even without the requirement of the physical presence of the lawyers, judges, litigants and other staff.
The virtual courts undoubtedly save time, money and energy for the litigants and lawyers. The Supreme Court in a press note at the beginning of May 2020 said that in a span of 22 days since the start of hearing cases through video conferencing, it had heard 538 cases as well as 297 connected matters. In the same time period, 116 Supreme Court benches had met to dispense justice. On May 18 2020, the Supreme Court observed that a single virtual court bench is able to take upon as many as 40 cases in one working day as opposed to 20 in open court.
The virtual courts cogently have manifold and significant advantages. They save time, money and energy for litigants as well as lawyers. They deliver speedy justice. But it has to be noted that currently, these virtual courts sustain at the cost of open courts. There is room for much improvement in the digitisation of the legal system of the country. The bar and bench, the entire court staff in the country, as well the public in general must become digitally literate. The electronic infrastructure, as well as the internet facilities, must be improved, not only of courts but the nation. Data of litigants must be kept secure. The open court principle must be upheld also by allowing the public to live stream hearings. Then only, justice can be delivered to anyone in need. The virtual courts provide speedy justice, as opposed to the traditional judicial system of the country, which has been called slow. Well, ‘justice delayed is justice denied’. But we must also check at what cost these virtual courts are delivering speedy justice. No factor or no iota of information should be missed or mishandled. It might become easy for litigants to tamper with evidence if it is a digital format. And just as a great lawyer remarked the ‘justice delayed is justice denied’ maxim, yet another great lawyer countered that even ‘justice hurried is justice buried’.
From the first common law court established in India as the Supreme Court of Judicature at Fort William, Calcutta in 1774, we have come a long way looking at our smartphone screens for justice in 2020. It is a necessary evolution, and we must evolve. For if ever there is another crisis such as this in the future, we need justice to prevail, and we need courts to deliver us this justice.