Will Virtual Courts Ensure Justice During Pandemic?

WILL VIRTUAL COURTS ENSURE JUSTICE DURING PANDEMIC?

The Coronavirus crisis has affected broad swaths of global life. In the darkness of this outbreak long term, social distancing has become the real antidote. As this antidote puts halt to many physical activities, it has successfully uncovered the concept of “work from home”. Witnessing the wide impact caused by this virus, it is obvious that the justice system is also affected. But to ensure minimal effect on access to justice, Indian courts have opted mechanism of online proceedings through video conferencing.

This article aims to analyze the effect of virtual courts and then moves to answer the question of whether the virtual courts ensure justice amid pandemic.

POWER UNDER CONSTITUTION

To ensure the robust functioning of the judicial system through video conferencing, the Supreme Court exercised its plenary power and invoked Article 142 of the Indian Constitution[1]. These measures have been taken by courts to reduce the physical presence of stakeholders within court premises and to ensure that court premises do not contribute to the spread of the virus. The apex court issued several directions and guidelines consistent with the peculiarities of the judicial system in every state.[2]The Apex court in continuation of their directions empowered state officials of the National Informatics Center (NIC) to communicate with respective High courts and formulate a plan for the virtual functioning of courts. All these directions were issued for dispensation of justice and to preserve constitutional commitment of access to justice.

VIRTUAL COURTS: ADVANTAGES

Speedy disposal of cases: Due to the pendency of cases in India, citizens were losing faith in the judiciary. The mechanism adopted in this disguise could allow the courts to work 24/7 and hence it will help in reducing the backlog of cases. It will ensure the adjudication of cases within time by avoiding some obvious errors. Hence justice will neither be delayed nor denied.

Help in Reducing Costs: Due to high litigation costs and travel expenses, parties tend to avoid legal proceedings. Regarding this issue, a virtual court may turn to be a boon in cutting back the court expenses such as on staff, security, infrastructure, etc. In virtual proceedings, parties are not required to come to court which reduces the travel time and making the procedure cost-efficient.

Transparency: Computerization of work such as e-filing system, transferring PDFs online would bring transparency and accountability in working.

DISADVANTAGES

Lack of IT infrastructure and remote access: In India, most of the courts do not have requisite machines and types of equipment to conduct the video conferencing process. The ground reality is that most of the advocates are not even aware of the technology required. Practical issues like poor quality of internet connection, outdated audio and video equipment, power cuts, etc. pose a great problem in conducting video conferencing.

High investment and security issue: To follow the procedure of video conferencing, there will be a requirement of installing devices in all the courts and quasi-judicial institutions, which will amount to a huge investment. After these installations, the use of several software and devices will have access to data stored which is very confidential and this might create the problem of security and privacy of data as well.

The authenticity of witnesses and evidence: Expression and postures during cross-examination of witnesses in physical courts play a vital role in the discovery of truth but recording evidence through video conferencing will restrict these. It can increase the chance of not discovering truth directly from the witness and hence it will defeat the entire purpose of examination.

OPEN COURT PRINCIPLE AND JUSTICE

The concept of open courts derives its emergence from Clause 40 of 1215 Magna Carta which preserved the availability of justice to everyone. Our Constitution also contains provisions of Open Court.[3] There are some inherent powers of the Supreme Court under the Civil Procedure Court “to consider the place of the trail to be an open court”[4]. There is also provision under CrPC, “for the place where any Criminal Court held to inquire into or try offense shall be deemed to be an open”[5]. These provisions carry a presumption that the public including media has free and fair access to court proceedings but in special and limited cases. In the case of Naresh Shridhar Mirajkar v. State of Maharashtra[6], the Supreme Court also stated that “…A public trial in open court is undoubtedly essential for the healthy, objective, and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice.”

The principle of open court is directly connected to the concept of Natural justice. This concept of natural justice stands out on the foundation of equal opportunity and fairness. Open courts ensure that there is no miscarriage of justice; they ensure the fair administration of justice. In India, because of their reverence for tradition, courts are not a particularly very adaptive institution. But to preserve justice amid these catastrophic conditions immediate adoption of technology for proceedings was a much-needed action. Concerning this change, the Supreme Court faced severe criticism on the ground that the system does not adhere to the principle of open courts. The Supreme Court in defense of the grounds of criticism stated that “There cannot be divergent views about the fact that justice cannot be spoon-fed. Justice Delivery, even at the door-steps of the stakeholders, requires the stakeholders of the ecosystem to diligently discharge their role and duties, prescribed and required in the scheme of things.”[7] The apex court further stated that the virtual courts cannot be said as negating the principles of the open court as the principle is not only about the physical bodily presence of parties or media, the principle is mainly about transparency, which is ensured as the outcomes of all the cases has been widely reported in media.

CRITICAL ANALYSIS

The analysis of the guidelines and press note released by the apex court makes it clear that though special viewing Facility has been provided to media and public in a video conferencing room of Supreme Court premise, Guidelines issues earlier lacked the direction for the same.

Moving towards deciding the fate of the judiciary concerning virtual and physical courts, there is no doubt in saying that physical courts cannot be replaced by virtual courts. Virtual courts can work as a panacea in pandemicto ensure social distancing and to contain the spread of the virus. But physical courts will always be the essence of the judiciary. Honorable Justice D Y Chandrachudalso supported the concept of physical courts at a webinar organized by NALSAR University of Law.[8]

The key point is not just about following the principle of open courts in videoconferencing; it is also about ensuring the credibility of the proceedings. One such concern would be Trials of criminal cases. Criminal trials are generally lengthy; they involve many stages such as Plea of guilty, Prosecution evidence, Statement of accusedand judgment, etc. Conducting criminal trials through video conferencing is a very cumbersome process. It would be possible in the Supreme Court and High Court only, as there only substantial question of law is decided.

However, to ensure speedy justice in post-pandemic India, virtual courts can accompany physical courts. When both courts will co-exist, online proceedings will help in easy disposal of those parts of cases that do not necessitate personal hearings and presence; they can be disposed of quickly without causing discomfort to both parties and advocates. As we have a single bench of the apex court in Delhi, Video conferencing can also fill up this gap between those litigants who need to be heard in Supreme Court but cannot afford to travel every time to Delhi and wish to be heard through video. Even for the enforcement of Fundamental Rights, it is extremely difficult for people to reach concerned High Courts and Supreme Court, thus virtual court aids the justice dispensation process.

CONCLUSION

To conclude, it is worthy to accept that this situationallowed us to figure out a better way to tackle things. In this process, the judiciary has realized that they should focus less on the precedent set when courts need to adapt to conditions such as coronavirus crisis and more on their capacity and readiness to continue to discharge their obligations under the Constitution. Hence, in keeping up with public health precautions recommended in response to COVID-19, it would be prudent to make the adjudication process virtual. Although the mechanism adopted is commendable, yet many issues regarding the fair opportunity, transparency, had arisen. But this mechanism will become more transparent and accountable if accompanied by the Principle of Open Court and Natural justice in an absolute manner. Going back to the question that we took up for discussion, we believe that virtual courts ensure access to justice in this tough time, but compliance with this technology with traditional ideals of the judiciary could be the best substantive strategy for the post-pandemic judiciary.

By-

Ananya Bhargava

DNLU, Jabalpur

Kalyani Pandey

DNLU, Jabalpur

REFERENCES

[1]The powers conferred on the Supreme Court of India to make such orders as are necessary for doing complete justice.

[2] SCI, IN RE: Guidelines for Court functioning through video conferencing during COVID-19 pandemic, (Apr. 6, 2020), https://main.sci.gov.in/supremecourt/2020/10853/10853_2020_0_1_21588_Judgement_06-Apr-2020.pdf.

[3]Indian Const. Article 145(4).

[4]Civil Procedure Code Section 153B (1908).

[5]The Code of Criminal Procedure Section 327(1) (1973).

[6](1966) 3 SCR 744: AIR 1967 SC 1.

[7] SC defends ‘virtual courts system’ during pandemic says it ensured justice, The Week, (May 2, 2020), https://www.theweek.in/wire-updates/national/2020/05/02/lgd12-virus-sc-virtual-courts.html.

[8]Virtual Courts Cannot Fully Replace Open Court Hearings; Technology Can Make Justice System More Efficient & Accessible: Justice Chandrachud, Live Law, (May 24, 2020), https://www.livelaw.in/top-stories/virtual-courts-cannot-fully-replace-open-court-hearings-technology-can-make-justice-system-more-efficient-accessible-justice-chandrachud-157260.