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VIRTUAL COURTS: A NEW NORMAL FOR INDIAN LEGAL SYSTEM?

Virtual Courts - Priyanshi Jain (1)

In March 2020, with the outbreak of novel coronavirus, commonly known as COVID-19, the entire world was subjected to lockdown, and people were compelled to stay within their homes. Every single institution with the exception of hospitals was shut down. Courtrooms were no exceptions to it. Courtrooms were physically closed down too to avoid the spread of COVID-19.

The judicial or legal system of a country plays the most pivotal role in running the entire country. Judiciary not only ensures fair-play and justice but also safeguards the integrity of a country. If the serving of justice is put to a halt, it can lead to serious chaos and disregard for the law. People would think that the consequences of their wrongful act would result in delayed justice and since it has always been saying “justice delayed is justice denied”, it would not only lead to the accused getting away with his unlawful act but also overlooking the plaintiff’s rights.

To save the country from a gradual shift to lawlessness, the Indian legal system decided to opt for what has been quite famous nowadays “the new normal”. Courtrooms decided to work from home. They decided to hear the urgent cases virtually through videoconferencing.

There are almost 27 million cases already pending in India. The decision of hearing cases virtually is commendable since the physical closure of court would only pile up the pending cases. This way the legal proceedings will not discontinue and social distancing will be maintained. 

WHAT ARE VIRTUAL COURTS?

The virtual court is exactly what the name suggests. It is the online conducting hearing and trials followed by online adjudication. Judges hear the arguments presented by respective lawyers and the queries raised by courts are also answered online. Online adjudication and hearing are better than the closure of the courts altogether.

Now the question arises is if the court going to continue this way post Covid-19 too?

If we take a closer look at the past, we can find that the concept of e-courts is not entirely new. On the basis of the “National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary-2005”, the e-courts project was launched aiming at digital and technological advancement of courts. Apart from this, many judges have conducted hearing through e-court through videoconferencing in certain cases in the pre COVID-19 era. Examples would include some cases that fall under the Unlawful Activities Prevention Act or other cases in which authorities had the reason to believe that it would lead to disturbance of public order and peace if certain prisoners that are under trial are brought out of the prison, in such cases the hearings were mostly held online. Section 167 (2) (b) of Code of Criminal Procedure (Cr.P.C), 1973, which was introduced by the Code of Criminal Procedure (Amendment) Act, 2008, provides certain provisions for electronic video-linkage as an alternative method for production of an accused in court.

But back then it was a choice rather than a necessity as it is today. Now, with the emergence of the vaccine, it’s high time that we decided if the digital conducting of the court should continue post COVID-19 or not? Before we arrive at any hasty decision, we need to consider the pros and cons of virtual courts.

When we look at the bright side of e-courts, it can be undeniably contended that e-courts are cost and time efficient. In most cases, parties live in areas geographically distant to the courtroom in which they need to appear for the hearing. Cases are not solved in a single trial. They are multiple hearing and many times they are extended over years. Travelling to the courtroom and back to the place where one lives is not only costly but also time consuming. In some professions, time is the most useful resource. Let us take doctors for example; doctors living in rural areas or even in urban areas can save a lot of travelling time through online hearing and invest that time in their patients. Aged people, for whom it is not easy to travel again and again are a great advantage due to virtual hearing.

The virtual court can be really practical and convenient during civil cases, family cases, etc where there is a need to only listen to the arguments and there are no oral evidence by witnesses and only injunction applications are to be made.

Also, during the early stage of a case, where lawyers only need to provide arguments and there is no cross-examination, virtual courts can be appropriate and energy saving.

Another aspect towards the benefits of e-courts is that it ensures the safety of the witness. Vital witnesses in cases of heinous crimes are always at risk for they hold great importance to the case. Through virtual courts, they can stay safe at their home and attend the hearing online.

During many trials, when prisoners are being taken from their cell to courtrooms for hearing, there have been various instances of prisoners conspiring with their outside sources and running away during the travelling. This can be prevented if they attend the trial online in their prison cells.

Apart from pros, there are many cons associated with virtual hearing.

Let us first take the aspect of Open Court House. In an Open Court House system, the public can freely witness the ongoing trial or hearing in the courthouse. In the virtual court system, Open Court House cannot be conducted and this affects the law students who are engaged in an internship in a particular case and junior lawyers who need to observe the court proceedings in open court.

Now let us consider the cross examination of a witness or a party to the case. Undoubtedly, the cross examination can produce the best results when it is impromptu in the regular manner of hearing, i.e. physically. In online proceedings, there is a high risk to fair trials as witnesses or parties can be prepared or they may keep some material with them to answer the questions raised without being noticed by the court.

In India, most of the population, as we all know, is located in rural areas. Neither are those areas digitally advanced nor are the people technically literate as they are required to be to file the case online and attend the online hearing. We cannot just put virtual courts into functioning without taking into account the problems that most of the population faces.

Another big concern related to e-courts is privacy issues. With the rise in virtual ways of working, online hacking has started rising too. Unauthorized online access to the personal data of people has become rampant. Many reports indicate that the countries that provide a particular videoconferencing platform have access to the meetings, conferences, seminars, etc that are held through that platform. This poses a great risk in the filing of cases online as data containing the personal documents of people are at risk of being leaked and virtual hearing of cases that hold national importance and are related to national security might be subjected to infiltration by enemy nations.

When it comes to serious criminal cases related to murder, rape, etc., it is neither careful nor advisable to conduct the hearing online since these cases require the recording of oral evidence given by the witness, and online recording can be easily hacked or be tempered with by editing and other digital tools.

COVID-19 has successfully provided the judicial system to enter into the digital world. But it can be easily asserted through the above arguments that however admirable these steps towards virtual courts are, they are not as satisfying as they should be. We can conclude that virtual courts are as useful as they are inefficacious at the same time. While we can and we should conduct the virtual hearing in some instances, there are many other instances in which this cannot be affirmed as prudent and require physical conduct of the court. In the post COVID-19 era, virtual and physical hearing can work side by side in cases that require them. As of now, with the emergence of the second wave of coronavirus in India, this disease seems far from gone; so there is no option but to conduct courts online.

Author(s) Name: Priyanshi Jain (Chanakya National Law University, Patna)

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