by Shreya Govil
The COVID-19 pandemic has opened the gateway to an alternate form of justice delivery through virtual courts. This paper explores the feasibility of virtual courts in India, and briefly describes the past and present of virtual courts in India. It deliberates on both the merits and demerits of virtual courts in India and explores some suggestions to make virtual courts more secure and accessible to the community.
On 15th March 2020, the Chief Justice of India Mr S.A. Bobde implemented video conferencing facilities in the courts to avoid any type of gathering and to promote social distancing. The COVID-19 pandemic has made many sectors across the board shift to different online platforms including the legal sector. An E-Committee of the Supreme Court also announced that e-filling was made available 24/7. The Supreme Court has also launched video conferencing facilities at the Trial and Appellate stage to avoid mass gatherings.
Currently, in India, there is a backlog of 30 million pending cases. So, one can say that the existing functioning procedure of the courts is not as successful as it should be. Mr C.P. Gurnani, CEO of Tech Mahindra stated that the courts in India can reduce their case backlog by 3 years if they use Information and Communication Technology. So, virtual courts can play an essential role in reducing the gargantuan case backlog which burdens the Indian judiciary. However, will virtual courts be feasible in India? This article will delve into this question and seek to provide a deeper understanding of the same.
This paper is divided into 5 sections- the first section will focus on virtual courts their past and present, the second section will focus on the advantages of virtual courts, the third section will focus on the issues related to virtual courts, the fourth section will focus on the suggestion for the future of virtual courts, and the last section will be the conclusion.
Virtual Courts Past and Present-
Virtual courts are courts that with the help of a variety of software & tools create a remote working system that eliminates the need for human presence in courts. In some parts of the country virtual courts have been working for quite some time. For example- The Tis Hazari Court which is Delhi’s first virtual court follows a simple and convenient procedure. The virtual court is presided over by the metropolitan magistrate. Once a summon is generated, the accused is notified via email or SMS. This goes on to show that even before the pandemic various parts of the judiciary were online.
Some key cases led to the establishment of virtual courts in India. The Salem Advocate Bar Association, Tamil Nadu v. Union of India was one such case. This case “allowed for the use of electronic media during the evidence stage” in civil cases under the Civil Procedure Court, 1908. Other than civil suits, video conferencing & virtual courts are a part of criminal suits.
For criminal suits, the State of Maharashtra v. Dr Praful B. Desai was the case that settled the ambiguity whether audiovisual equipment can be used during a criminal trial. Sec 273 of the Criminal Procedure Code,1973, (Cr. P.C) mandates the “presence of the accused during the trial”. But the court, in this case, ruled that ‘presence’ does not necessarily mean ‘physical presence and also allowed the use of video conferencing in a criminal trial.
The process to set up virtual courts in India began long before the COVID-19 pandemic hit. This project was called The E-Court Project, it was established based on the “National Policy & Action Plan for Implementation of Information & Communication Technology in the Indian judiciary 2005.”
Phase 1 was started in 2007 where various courts across the country were provided with computer and internet connections. And websites of various courts were created which provided all the necessary information easily. Phase 2 focused on providing video conferencing facilities at courts and jails. It also launched mobile apps to provide legal services. Other facilities like e-filing and online payment of court fees were also made available.
Even though virtual courts have co-existed along with traditional courts, what the COVID-19 pandemic has done is it has forced most courts to become virtual courts. This has exposed the effectiveness and feasibility of virtual courts at a much larger level than before. This has brought out the advantages and disadvantages of virtual courts.
Makes Justice More Accessible-
Justice delayed is justice denied, but virtual courts will play a major role in reducing the case backlog in India thus making justice more accessible.
It is very cost-effective for the parties coming to court as they don’t have to spend money on traveling and physically coming to the court thus saving them a lot of money as there is no traveling cost.
Virtual courts will play a crucial role in the enforcement of the Fundamental Rights because in India writ petitions can only be filed in the High courts and the Supreme court. Writs are the remedy available to a person which protect the fundamental rights of a person. So, people who were earlier not able to approach the High Courts and the Supreme Court can now approach them from remote locations and protect their rights by filing writ petitions.
There is a problem of case backlog, delay in judgment, and judges not having access to the right documents due to the need to navigate through large amounts of papers and files as everything is physically filled and stored. Virtual courts will solve this problem through e-filing which makes storing and retrieving documents much easier.
Virtual courts will connect all the courts in the country and also give litigants faster access to proceedings. It provides judges access to legal and judicial databases. While empowering judges to get updated information of cases regardless of their location. Information and Communication Technology will help judicial administration in streamlining its daily activities. All this will save valuable time for the judges and the court and make their work more efficient.
Increases Transparency and Accountability-
Digitization of procedures like filing, service, listing, and hearing curbs corruption at the registry and clerical levels, increasing transparency. Facilities like e-filing and e-proceeding increase public confidence as well.
Virtual courts increase public awareness of judicial processes as legal sources are accessible not only to judges and lawyers but also to the general public. This boosts the transparency of information.
Lack of Adequate Information and Communication Technology Infrastructure:
A huge problem in India is the disparity of internet access among people. India’s socioeconomic condition is marked by social imbalance, low literacy, discrimination, and inadequate understanding of Information and Communication Technology. Only 1.2% of the Indian population can use online services and only 0.45% of the Indian population owns a personal computer. Most places in India do not have access to electricity and the internet. Such disparities make it difficult for everyone to get access to justice. This also raises the question of whether virtual courts will be accepted by the community or not. To make Virtual Courts a success it becomes important that adequate infrastructure is set up so everyone has access to Information and Communication Technology.
Currently, the paralegal staff is neither trained nor equipped to either handle documents or record evidence. The courts will need to be trained Information and Communication Technology support should be set up and new technology has to be accommodated. Given India’s socio-economic condition the transition from paper-based courts would require the expenditure of the available resources.
Privacy, Safety and Security issues of Virtual Courts:
Virtual courts have some privacy issues as litigants are required to reveal personal details online to register cases. There is unprecedented public access to data, which raises apprehension over the confidentiality of parties and at-risk victims. Virtual courts make it easier for malicious hackers to compile, retrieve, and manipulate data. This increases the threat of data mining identity theft and harassment. This harassment can create problems in the justice delivery system. An example of this is the 2002 Best Bakery Case where 37 witnesses turned hostile due to intimidation. In virtual courts, individuals do not have enough resources to control or see how their personal information is used.
There are advantages and disadvantages to virtual courts. But if virtual courts are to be made a successful project in India, then some important steps need to be taken to ensure that.
Virtual courts need to be made user-friendly, simple, and easily accessible. To increase accessibility and reduce the disparity of access to Information and Communication Technology, special cybercafes could be set up across the country and even in the remotest locations. This would ensure that people who do not have access to the internet or computers can still approach virtual courts.
The current infrastructure of the court needs to be upgraded. The judges and the rest of the court staff need to be accustomed to the framework of the virtual courts. This will make the transition from paper-based courts to virtual courts very smooth.
A strict balance between the right to open courts and the values of privacy & security is needed. To sustain privacy practices there should be training programs and self-regulation in courts. The court staff should be trained in a manner such that privacy is maintained while storing all the e-data. To monitor compliance with the law & issues of privacy guidelines a body with authority should be set up. This body would ensure that privacy practices are sustained and a robust security system is set up.
The process to make some courts virtual started in 2007 but the pandemic has made this process expeditious while also allowing one to actually explore the feasibility of virtual courts. During these times virtual courts became the only platform available for people to access justice. Throughout the paper, various pros and cons of virtual courts were explored but if the suggestions mentioned are followed through, the cons of virtual courts can be tackled. During the Post Pandemic times, virtual courts can play a crucial role in reducing the huge case backlog, they can allow people from remote locations to approach the High Courts and the Supreme Court as the physical distance is no longer a constraint thus increasing the avenues available to people seeking justice. This will also allow disabled people to approach courts as they can appear in courts from their homes or places that are friendly to the needs of disabled people unlike most courts in India. But all this is possible only if the disparity of ICT access is reduced and the privacy & security of data is maintained because only then people would be able to accept this form of justice delivery.
Shreya Govil is a student of the B.A. LL.B 2020-2025 batch of Jindal Global Law School. Their areas of interest are constitutional law, gender studies and Human rights law.