Virtual Justice: Is it here to Stay?
"It has become appallingly obvious that our technology has exceeded our humanity". – Albert Einstein
Access to justice provided by a functioning judicial system is critical to maintaining the rule of law, especially during a pandemic. The current COVID-19 epidemic has given rise to more number of problems in all aspects of life. Therefore, we must seek solutions and overcome such obstacles. One such issue that has emerged is that the courts of law are closed, which has led to piling up even more number of cases. The Justice system is a part of our lives, and we cannot neglect it. The solution to the given problem is that the courts have adopted the online meeting platform to seek justice. Virtual Court was a reality that was supposed to be eventually integrated into our legal system over a while and after proper deliberation. Overnight, COVID-19 had forced the hands of the legal system, to start virtual court hearings.
Our legal system is unable to cope with the massive backlog of pending matters. The infrastructure of the courts has developed a little in the past decade, except for a few metropolitan cities, judges in other regions are entirely unprepared and ill-equipped in terms of staff and resources. How can the virtual courts eradicate the problems of the open court system? It is only possible after imparting proper training to judges and the staff of the Court at all levels. This a process that should be done over a while and by using appropriate resources; however, in this pandemic, it seems impossible, and there is no option other than coping with the situation.
Even though the assembly of judges and advocates in the courts has been put to a halt, essential matters in the eyes of the courts are being adjudicated using video conferencing from virtual courtrooms. A fair section of the advocates in remote regions are not privileged and fortunate enough to have all the facilities and amenities to carry on their virtual practice easily.
There are several technical glitches in the virtual courtroom system that most advocates are not in a position to adapt. There is a digital divide, particularly amongst those who lack IT knowledge and facilities or do not have easy internet access and those who can afford to have not only stable internet but also a laptop or a computer to continue their practice virtually. Professional bodies such as the Bar Council and Bar Associations need to cater to this segment of lawyers who face such inadequacies by providing training facilities.
PROBLEMS OF ONLINE PROCEEDINGS
The online Court has some drawbacks such as inviting frivolous lawsuits and the threat of identity theft by the parties or even by a third party. The solution to these systematic drawbacks is to segregate high profile cases that have more chances of tampering of any kind during the case that would harm in delivering justice; such cases can be heard in the usual open Court. Most cases of civil law that have been dragged on for years together consume most of the court's time and resources and can be shifted to this online platform. This segregation on a broader scale will reserve a stockpile of the Court's time and resources.
On the other hand, criminal cases can be tried in the usual open court manner. Recording witness testimony on an online platform should not be done on an online platform as there is a possibility of victimization of witnesses. The difference between audio-video and in-court testimony is significant -the latter offers a more comprehensive chance for the Court to examine the witness by way of his testimony along with their behavior. Evidence recorded using video conferencing may distort non-verbal cues such as facial expressions, postures, and gestures, particularly during cross-examination, which may lead to the discovery of truth.
Another issue that arises is that the witness testifies from an atmosphere they find most comfortable, which is either their home or office. There are chances that in such proceedings the parties may testify falsely. Such scenarios lack the necessary setting that comes with appearances in the Courtroom. There might be some difficulty in maintaining the conduct and decorum of the Courtroom on an online platform in the same way as it is held in the open courtrooms.
AN OPPORTUNITY TO CHANGE
Nevertheless, when new changes are introduced, we must adapt and improvise in these difficult times. The advantages inherent to the Online Court includes: saving time and money, making the Court accessible to the disadvantaged, and reducing the caseload of each Courtroom. The future generations are dependent on the extensive use of technology. Arbitration proceedings can be conducted online, which not only speed up the process but also save time and money for the parties. Advanced technology, the flexibility of the proceedings, minimal use of resources, and time will make arbitration an attractive option for parties seeking speedy justice.
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. Justice Chandrachud was of the view that Judiciary must grab this opportunity for change. He said the Supreme Court's e-committee was working at developing technology that would make justice delivery more inclusive, not just for litigants but lawyers too. The online documentation process is said to be more authenticate and can be easily verified, which can be of great use in this medium of delivering justice. Courts might consider preferring both virtual and open court hearings in the future too, to strike a balance between efficiency and access to justice is the key, however the efforts for which the courts have been reluctant and sluggish in the past.
Ultimately, the proposed online legal system constitutes the first step toward accommodating the court system to the innovative reality of the Internet Age, in a manner which is both systematic and controlled. The aim is to streamline existing legal proceedings and to make all legal services accessible, with the overarching idea of "justice for all" as the guiding principle. It is a good sign that the Supreme Court rightly recognizes that efforts should continue to strengthen the roots of the virtual court system. Still, the focus should be on the litigants' satisfaction rather than the advocates' appearances. The litigant is the lifeline of this entire legal system, and the Judiciary is the strongest pillar of democracy, but it persists because of litigants' faith in it.
Article 145(4) of the Constitution of India provides that no judgment shall be delivered by the Supreme Court other than in open Court. Section 327 of the Criminal Procedure Code and Section 153-B of the Civil Procedure Code also mandates open court hearings in all criminal and civil cases. However, Section 153B of the Civil Procedure Code and Section 327 of the Criminal Procedure Code do state that hearings should generally be accessible to the public.
The Open Court principle carries the assumption that the public has free and fair access to court proceedings. With its foundation in freedom of speech and expression and freedom of the press, the principle protects a broad scope of activities enabling the public to attend court hearings as a spectator, reporter, or partaker.
At present, the litigant has no chance to see the court proceeding and they do not know what happened, how it happened, and when it happened because no link is sent to him/her. Still, if this online platform to seek justice is to continue, it should be made apparent that the litigants too can access their proceedings online. The technology must be accessible to everyone to have a more effective justice system.
Every crisis brings an opportunity. This unprecedented time could be an opportunity to develop and upgrade our legal system. Even though there are many flaws in both the virtual court system and the existing open court system, but as the famous proverb goes- where there is a will, there is a way. We can always find solutions to our problems if we want the virtual justice system to be a reality.
Virtual Court was supposed to be our future reality, but thanks to this pandemic the future is here now. These virtual courts can be seen as the future of the Justice System as technology is far more reaching in today's world, and it can undoubtedly be said that it is very much sustainable as considering the future. The pros of this model far outweigh the cons.
1. IND CONST. Art 145 Cl.4.
2. Code Civ. Proc. Section § 153 Cl. B.
3. Code Crim. Proc § 327.
4. Dubey, P., 2020, Virtual Courts: A Sustainable Option?, Bar and Bench - Indian Legal news, <https://www.barandbench.com/columns/virtual-courts-a-sustainable-option>
ABOUT THE AUTHOR
This blog has been authored by Shweta More & Yukta Matlapurkar, who are 4th Year B.L.S., LL.B. students at Adv. Balasaheb Apte College of Law, Mumbai.
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