By Abhinav Mathur
COVID-19 outbreak brought life to a standstill not only in India but across the Globe. Almost all the sectors and Institutions are deeply impacted and the Legal system is no exception to it. The functioning of Courts has become an uphill task in India. Courts across the Country have suspended its operations apart from taking up only extremely urgent matters through the mechanism of videoconferencing.
Hon’ble Supreme Court (“Court”) on 6.4.2020 took up for hearing in the suo moto case titled “In Re Guidelines for Court Functioning through Video Conferencing During Covid-19 Pandemic” (SMW (c) No. 5/2020) and floated guidelines for the court across the Country to function via video conferencing during the COVID-19 lockdown. It was directed that measures shall be taken by this Court and by the High Courts, to reduce the need for the physical presence of all stakeholders within court premises and to secure the functioning of courts in consonance with social distancing guidelines shall be deemed to be lawful. It was directed that all the Courts are authorized to adopt measures required to ensure the robust functioning of the judicial system through the use of video conferencing technology. Further, every High Court is authorised to determine the modalities which are suitable for the temporary transition to the use of video conferencing technologies.
Now the concern which doing around the circles of the Judicial System is whether Virtual Courts will be the “new normal” for conducting the hearings/trials in the future. Time has come to pursue remote access to justice and thus video conferencing process should be embraced even after ending of COVID 19 saga.
Challenges in adopting Virtual Technology
It is apposite to note that technology was there in the past and the necessity in these unprecedented times will entail all the stakeholders to adopt it. Though the Hon‘ble Courts across the country have passed the necessary directions to conduct hearings through virtual courts during the period of lockdown but it is imperative to think scenario post the lockdown period.
Legal System/Courts can see a huge challenge in adopting the news ways for conducting court hearings. One of the fundamental and foremost challenge is to the accessibility of the Internet. It is relevant to note that not every Advocate has the convenience of having internet and other ancillary logistics (including hardware and software) to participate in the virtual hearings. Thus, with the advent of time, it would be imperative to ensure that access to justice should not be a part of a few privileged sections of the society.
Further, it is unfortunate that there are several High Courts in India which lacks a sound infrastructural system to conduct virtual hearings. Even assuming for the moment, that India would be able to ramp up the required infrastructural support, then it would not be easy to impart the training of digital literacy among the stakeholders viz. Judicial Officers, Advocates, Court staff etc, at least in a short span of time. All the aforesaid measures become even more difficult at the subordinate level of justice dispensation system.
As far as a trial of the matters is concerned before the Court, there may be a possibility that Court may not evaluate the witness efficiently through facial expressions and gestures due to the delayed streaming of the Internet. Further, the witness would have the luxury to depose from his own comforts like home/office which would be entirely a different ball game as compared to depose in the environment of the court room system.
It would be onerous to ignore the statutory provisions enshrined in the law with respect to conducting the trial. Section 153B of the Civil Procedure Code, 1908 and Section 327 of Criminal Procedure Code, 1973 mandates for the open place/open Court for conducting any trial to which public generally may have convenient access. Thus, any attempt to conduct virtual trial may even require the Legislature to amend the required Statutory provisions to bring the Digital transformation in align with Legal framework.
It is relevant to overcome the abovementioned procedural/infrastructural bottlenecks/hurdles to even aim for comprehensive use of technology in the form of virtual courts. Once the basic infrastructure/needful is done across the Courts than for the initial purposes, virtual courts can be used in respect of matters which are more summary in nature and by far non-contentious. Even in contentious matters, there are preliminary stages which most lawyers would be aware that the matter will not proceed substantially viz proceedings where urgent ad-interim / protective orders have already been obtained but a matter is listed only for ensuring the completion of pleadings or for direction purposes. To go for a permanent basis and taking up more contentious matters, it would be imperative to insist upon a brief summary/Note of arguments and relevant case law with the relevant portions highlighted in advance being circulated at least a day before the virtual court hearing.
It is apparent that there is an uphill task before the judicial system to adopt system of virtual courts and cannot be achieved completely at least in a shorter span of time. However, the use of videoconferencing by Courts across India in these testing times came as a blessing in disguise and thus we can now look forward to streamlining the whole process to make the justice dispensation system not only cost effective but also efficient which is integral to Article 21 of the Constitution. Undisputedly, virtual courts will have certain illustrative advantages such as a reduction in the cost of filing, saving of time in travelling, easier and faster access to the documents etc. In the event, our Judicial system able to implement the technology-driven mechanism in a hassle-free manner in the longer run, then it would emerge as Silver Lining in Legal Industry amidst this unprecedented situation.