COVID-19 urges Courts in India to go online: pros and cons of Court hearings via video conference

BACKGROUND

The outbreak of the novel COVID-19 has been identified as a “public health emergency” of international concern by the World Health Organization on January 30, 2020.[1] As a consequence, a complete nationwide lockdown was declared.[2] The crisis which is going to flood while the world grapples with the coronavirus is unimaginable. Even in such troubling times, the Supreme Court paved the way for uninterrupted access to justice through court hearings via video conferencing. This article focuses on the pros and cons of a virtual court hearing after the Corona crisis and whether this will act as a catalyst to enable the digitization of the Indian judicial system.

The Hon’ble apex court addressed the issue of delivery of justice in the form of order during the COVID-19 lockdown. A bench consisting CJI Bobde and Justices DY Chandrachud and L Nageswara Rao issued a direction in In Re: Guidelines for Court Functioning Through Video Conferencing During COVID-19 Pandemic[3] regarding measures to be taken by courts to reduce the physical presence of all litigants within court premises by adapting the social distancing guidelines. These guidelines were issued by invoking Article 142 of the Constitution of India as an extra-ordinary jurisdiction. In the aforementioned order, the District Courts were directed to adopt virtual court hearing through modes prescribed by the concerned High court and to provide video conferencing facilities for litigants who lack resources.

Judicial precedents in relation to virtual courts:

A two-judge Bench in Krishna Veni Nagam v. Harish Nagam[4] while dealing with transfer petition seeking transfer of a case instituted under Section 13 of the Hindu Marriage Act, 1955, when 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. While allowing the abovementioned transfer petition, the difficulties faced by the litigants living beyond the local jurisdiction was acknowledged by the Hon’ble Apex 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,”

Later on, the Veni Nigam’s case was overruled by the Supreme Court of India in Santhini v. Vijaya Venketesh[5] by a 2:1 majority. Chief Justice of India, Dipak Mishra and Justice AK Khanwilkar held that “in transfer petition, video conferencing cannot be directed”. However, Justice DY Chandrachud wrote the judgement in favour of the use of modern technology and video conferencing. Justice Chandrachud in the dissenting opinion highlighted the pros of video conferencing which are laid down 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.”

In M/S Meters and Instruments vs Kanchan Mehta[6], it was pointed by the Hon’ble Apex court that “Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There is need to categorize cases which can be concluded “online” without the physical presence of the parties where seriously disputed questions are not required to be adjudicated like traffic challans and cases of Section 138 of NI Act”

Pros and cons of video conferencing

Recently, the Chairman of Bar Council of India had addressed a letter to the CJI[7] opposing the virtual hearing post lockdown period stating the yawning gap between resources available for video-conferencing and e-filing with lawyers of humble background from rural cities as compared to that of the elite class of big cities. He urged to introduce a virtual court system in a phased manner. However, the council has appreciated the idea of conducting “virtual hearing” particularly the Apex Court and High Courts for extraordinary urgent matters, but the aforementioned letter highlights the fact that “90% of the advocates and judges are unaware of the technology and its nuances. The people sitting on elevated chairs are so distant from ground realities that’s why they are advocating such thought process”.

Many Lawyers have raised concerns regarding the virtual court proceeding not being open for public viewing as the facility is accessible only by the judges and the counsels representing the party. In Naresh Shridhar Mirajkar & Ors vs. State of Maharashtra & Anr[8] it was held that “Public hearing of cases before courts is as fundamental to our democracy and system of justice as to any other country”. Though conventional technology interventions like the virtual court are the need of the hour in current circumstances but the principle of the open court should not be compromised.

The Supreme Court recently issued a press note [9]addressing criticism against the continuation of virtual court hearing post-lockdown stating that the aim of both the system of adjudication through the open court system and the court system being conducted via video conferencing is delivery of justice. The press notes further state that “Open Court hearings cannot be claimed as a matter of absolute right and process of adjudication itself does not demand an Open Court“. However, in the present era when we are reliant on technology for every aspect of our lives, Virtual Court Rooms cannot be are “antithetical” to the open court system in any manner.

Currently, video conferencing is being used for extremely urgent matters whereas the e-filing facility is available for all matters. Apart from the current COVID-19 induced situation where there was a dire need for the judicial fraternity to remain accessible, the judiciary should approach the virtual court mission post- COVID-19 crisis as well. Unfortunately, even before this crisis, many people did face difficulty accessing justice through courts due to a variety of reasons including a lack of financial means, physical disabilities, and other unavoidable circumstances. There are several benefits of hearing via video conferencing including no requirement of physical presence wherein parties do travel miles to be present in person before courts and at the same time, it will be cost and time effective for the parties’ perspective as well as the judiciary. Most importantly this will reduce carbon footprint. Video conferencing should be made optional in all courts across the country for all kinds of matters. Digitalisation will reduce the humongous number of pendency of cases before courts and will be an effective remedy for delayed justice.

The Hon’ble Supreme Court of India in State of Maharashtra vs. Dr. Praful Desai [10] stated in light of section 273 of CrPC, the term ‘presence’ cannot be interpreted to only mean the actual presence of a person in any court. Hence, evidence can be recorded without the requirement of being physically present in court in a situation where parties are located remotely, or cases where confidentiality is to be maintained, where there is an apprehension of danger to the life of any witness or instances where witnesses do not give their statements due to fear of getting entangled in court matters

A look at the current video conferencing system and e-filing reveals that the Apex Court should employ advanced software to prevent technical glitches as many AoR (Advocate on Record) have experienced technical issues like being clueless about the status of their application for urgent hearing, technical difficulty in filing matters. Additionally, many AoR pointed out the file size limit of 5MB for petition and 2MB for additional documents on Apex Court’s website. They further complained that limited links are issued for hearings and the same remained inactive even after several attempts. Other concerns of the virtual courts’ system are that speedier justice may result in deterioration of quality of justice and legal issues about the authenticity of the identity of witnesses, evidence produced before the court and cybersecurity issues, etc.

Conclusion

Accessibility is a core function of the delivery of justice. The quality of adjudication in the courtroom shall not be of utility if justice cannot be accessed by people in the first place. Hence, the current crisis would be a great opportunity for the digitalisation of Indian Courts. It can also help reduce a huge backlog of cases before the courts.

In the present-day scenario, there can be many difficulties faced in the practical implication of virtual courts. Many people and litigants may face difficulty in navigating a digitalized justice system which could be curbed by some practical training. Furthermore, it is a dire need that the National Informatics Centre create a platform that includes features of video conferencing and e-filing to replace the use of any third-party proprietary software for the discharge of critical public functions like adjudication. In a way, creating a next-generation justice platform will be full of challenges but it is important to note that this the first step towards digitalization of the court system in a series of many.

References

[1] Novel Coronavirus (2019-nCoV) Situation Report -10, World Health Organization (WHO), January 30, 2020

[2] Order dated March 24, 2020 vide No. 403/20202-DM-I(A) passed by the Ministry of Home Affairs, Government of India.

[3] Suo Moto Writ Petition (Civil) No. 5/2020.

[4] Transfer petition (CIVIL) NO. 1912 OF 2014

[5] TRANSFER PETITION (CIVIL) NO.1278 OF 2016.

[6] CRIMINAL APPEAL NO. 1731 OF 2017 ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO.5451 OF 2017

[7] Letter BCI: D: 1372/2020 (Council) dated 28.04.2020.

[8] 1967 AIR, 1 1966 SCR (3) 744.

[9] Supreme Court of India, Note on open court hearings, 2 May 2020, retrieved from https://images.assettype.com/barandbench/2020-05/06c7b93c-c27a-4702-9b16-5a47841aa88f/Note_on_Open_Court_Hearing.pdf

[10] AIR 2003 (4) SCC 601

AUTHOR:
Risha Kumari, Associate, King Stubb & Kasiva
Risha is a part of the firm’s Litigation team and has been representing clients in various courts and forums National Consumer Dispute Redressal Commission, State Consumer Dispute Redressal Commission, National Company Law Tribunal, National Company Law Appellate Tribunal, High Courts. Risha focuses primarily on Insurance, Insolvency & Bankruptcy Code, 2016, Labour Laws, Consumer litigation, Civil litigation, Criminal litigation and Regulatory issues. She advises a broad spectrum of clients doing business in Insurance, Finance, Banking, Manufacturing, Dealer, Airlines Sector.