HEARING CASES VIRTUALLY: IS IT A LEGAL AND VIABLE OPTION? BY MANISHA BORAMPETA

INTRODUCTION:

 Starting from the Industrial revolution which has now given way to information age, everyone is gradually engaging in technological developments by fusing digital and physical approaches through the interplay between humans and technology. Every physical presence activities are giving way to new technological developments. Judiciary has also stepped into the internet society by introducing stock of technological advancements in the administration of justice for smooth functioning and speedy delivery of justice. Especially just in case of criminal cases, the courts started considering the electronic evidences. Now the courts started thinking of introducing the virtual court proceedings which is a huge step towards the goal of DIGITAL INDIA. Now the debate is that is it legal to have the court proceedings through an online system and whether our existing legal system supports the virtual courts in India.

BASIC FRAMEWORK OF VIRTUAL COURTS:

According to Keith Kaplan[1], “a virtual court is a conceptual idea of a judicial forum that has no physical presence but still provides the same justice services that are available in courtrooms. Access to virtual courts would, however, be limited to online access, video conferencing, and teleconferencing[2].”

Virtual courts are also called as video courts these are the technology-friendly courts. Video conferencing or virtual hearing of cases is one of the online justice dispensation systems which have been explored in recent times. Virtual hearing of cases is a deviance from the ordinary practice (i.e. in-person hearings) of Indian judiciary working but the procedure of dealing with the cases is same in both in-person and online courts. In virtual trails, all the participants (including judges, lawyers, and parties to the hearings) and all the information (including opening statements, closing statements, jury trials, evidence, instructions, and judgment) are conveyed electronically in concurrence. It is a timely development in the technological aspect of India. As there are many pending cases in India with countless appeals, postponement of hearings and adjournments, the courts need to function overtime to clear all these cases for the legal development. India needs to take the help of technology for speedy judgments to set up virtual courts/ virtual hearing of cases. The parties to the hearings and witnesses including judge appear on the video conference which is uncomplicated for them to fit the courts encompassing their lives.

FOUNDATION FOR VIRTUAL COURT ROOMS:
  • Case filing and management: The cases tried in the court begin with the filing of pleadings by the counsels of both the parties with required other supported documents. The world is demonstrating with the electronic filing in a virtual hearing of cases which enables the attorneys to send the pleadings electronically. For the case management purposes the case name, parties, attorneys, and other data related to the case should supply to the court and let the court to record the information and stores the original copies of the cases. In virtual courts, all the details relating to the case should be sending electronically to the court and the original documents will be available in the form of electronic data. These electronics do away with the physical storage costs and annul the transmission and notification times and there will be access to the public.
  • Court record: A stenographic reporter produces the transcript of judgments or other court records. In virtual courts, there can be an option of electronic recording including audio or audio and video for recording the court transcript.
  • Evidence: In physical courtrooms, producing the evidence in the physical form may take a huge time to outreach the court. Whereas producing electronic evidence is a time-saving process that helps in the speedy disposal of cases.
  • Attorney presentation: By installing the virtual courts, judges can able to follow the counsel’s presentation clearly without any disturbances. These virtual courts involve the jury more and make the cases livelier. In physical courts, the judge cannot go through the case keenly as every proceeding of the case are done before the judge in the presence of all the participants and public which may create disturbance in following the counsel’s presentation.

LEGAL FRAMEWORK IN INDIA:

As per the constitution of India having a legal recourse is one of the fundamental rights that are available to every citizen. The right to have the legal remedy is considered as one of the directive principles of the state. Many computerized schemes are introduced in the judiciary like E-filing, E-courts, E-payment, E- registration, audio/video recorded evidence, National Judicial Data Grid (access to the data of present litigation), court automation systems, digitalization of court records, has already in place in India. Now the question is whether the provision of the online trail system i.e. conducting the trail through video conference and conducting the entire court proceedings through the information-based system will be effective?

Constitutional assurances like justice, equity, integrity, unity, dignity of the individual, liberty etc, are fulfilled when the justice delivery system is made within the reach of every citizen timely within a reasonable cost, which can be done through a fair and speedy trial of the cases. Fair and speedy trial is guaranteed under article 21 of the Constitution of India i.e. right to life and liberty. Supreme Court elaborated the concept of a fair and speedy trial in Kartar Singh v State of Punjab[3]. Therefore, virtual hearing of cases should be legally guaranteed as they are stepping towards the speedy trial and it the solution for the delay in the disposal of cases. In my opinion, the above should be interpreted and virtual hearing of cases can be introduced for the fair and speedy trial of the cases.

Article 39A of The Indian Constitution deals with equal opportunity and free legal aid. It directs the state to secure the functioning of a justice system on the bedrock of equal opportunity and the same cannot be denied to any citizen on the ground of economic or any other disabilities. Every citizen should be given equal opportunity to afford access to justice. In my point of view, the scope of virtual courts is wider to grant ample access to justice enshrined under article 39A of the Constitution, based on the reach of internet access to everyone in general.

As per the Information Technology Act, 2000 the document means electronic documents also. If any document is in the form of the electronic record, then record shall be treated as a legal record within the meaning of the legislation which contains the word ‘document’. The Information Technology Act, 2000 amended the provision in the Indian evidence Act by inserting subsection-65A[4] and 65B[5], which provides that the document in the electronic form is admissible before the court of law. Also the definition of ‘evidence’ under section 3[6] of the Indian Evidence Act, 1872 has been amended to incorporate electronic records. It was interpreted in many cases such as Amitabh Bagchi v Ena Bagchi[7]; it was held that “presence” does not necessarily mean physical presence in the court. Supreme Court in Dr. Kumar Saha v Dr. Sukumar Mukherjee (2011) recorded the testimonies and cross-examination witnesses through internet conferencing. In my opinion, the same has to be interpreted to introduce the video-conference court proceedings/ virtual hearing of cases and enable the courts in India to conduct the online trials which is cost-effective and time saving for the parties in the dispute.

Virtual open courts:

Live streaming the proceeding of virtual courts (virtual open court) are the extension of the principle of ‘open court’ which is stemmed from 1215 Magna Carta in clause 40 which states that “ To no one will we sell, to no one will we refuse or delay, right or justice[8]”.  It is also encapsulated under section 327 of the Code of Criminal Procedure 1973, order 18 rule 4 of the Code of Civil Procedure 1908, and article 145(4) of The Indian Constitution. It also preserves the right to freedom of expression and press under article 19 of the Constitution.

 In Swapnil Tripathi v. Union of India[9] and Naresh Shridhar Mirajkar v State of Maharashtra[10], Supreme Court held that live streaming of court proceedings is the extension of open court principle and asserted that open court hearings are the norm. Supreme court also permitted the live streaming of court proceedings in Indira Jaising vs. Secretary General & Ors[11], Justice D.Y. Chandrachud stated that “live streaming encourage the principle of open court, effectuate the public right to known and reduce the dependence on second views.”These interpretations are also executed for the proceedings if virtual courts.

IN PANDEMIC SITUATIONS:

In these critical situations, the role of the judiciary is even more crucial for the survival of democracy. Courts have to stay open to deal with the measures for implementation and consequences out of the situation.

 As there is no concept of virtual hearing in the Indian judiciary so far, during the pandemic situations like COVID -19 has had a significant impact on legal fraternity in India. Every court has suspended their work during the quarantine starting with Supreme Court, high court, and other lower courts. Indian judicial system is vital for the functioning of the democracy which provides checks and balances on the legislative and executive organs. Courts in India notified for the virtual hearing on minimal sitting.

UK government is bringing emergency legislation, THE CORONA VIRUS BILL 2020, to expand the use of the video and audio hearings of the court and to make the virtual courts the public so that public can participate in the proceedings through audio and video conferences to grant fair justice.

PRACTICES IN OTHER COUNTRIES:

The virtual courts are in place already in the UK, the US and some European countries. These countries enabled the parties to submit their petition through online and the parties can also be heard through video conference, it enables the party to save their time and money and even the courts in these countries are allowing the parties to submit their documents through online like in case of corporate affairs in India.

 

The UK:

In the UK, virtual courts are working effectively on criminal remand, family hearing cases, bail, and sentence hearings mainly in England and Wales in pursuant to THE ACCESS TO JUSTICE ACT 1999. Also, section- 28 of CRIMINAL EVIDENCE ACT1999 of England and Wales provides pre-recorded evidence for cross- examination.

The US:

The US adopted every new technology in the administration of justice. US court of appeals for the armed forces heard a case in the courtrooms 21 projects in United States v Salazar[12] and held that there is a real possibility of trials in which no physical similitude is present. The state of Michigan has set up a virtual court called cyber court in their country in 2002. This cyber court apart from all regular court proceedings especially trains the circuit and district judges for assigning to serve three years in the court.

The Dutch:

Dutch virtual court-rooms are designed with high video conferencing technology allowing them to connect with the prisoners in the studios.

BENEFITS OF VIRTUAL COURTS:

Speedy disposal of cases: The virtual courtroom enables the courts to dispose of the cases in a speedy manner compared with the physical courtroom. The virtual courtroom enables the court to conduct the trial involving the various parties at a time. The number of parties who can be heard can be increased by online mode. This facilitates the courts to settle the disputes in a speedy manner.

One time investment for infrastructure: For virtual courtroom, the government shall invest in the infrastructure facilities. But this is only one time investment as the infrastructure can be used for a longer period and we can reduce the indirect cost invested by the parties for travelling and other purposes to appear personally before the court of law.

Environmental Friendly: The Virtual Courtrooms replaces the paper based proceeding with the electronic form records to the maximum extent. This will have a positive impact on the environment as the paper-based litigation is not eco-friendly. The court records can be submitted in electronic form wherever it is possible.

Flexibility in Time: The virtual courtrooms enable the courts to work 24*7. Though the hearings may not take place throughout the day, if online submission of documents is facilitated then the practitioners can file their case documents throughout the day whenever they are comfortable which increases the productivity of practitioners as they need to not travel for long distances for submitting single documents.

Facilities in prison: Judge can able to interact with the prisoners without the physical appearance of prisoners before the court. It will save time and resources from not transporting prisoners from jail to court and also reduces the chances of escaping the prisoners. Also, the extension of remand can be done electronically.

Reduction in adjournments: accused may not present all the time at the in-person hearings, which cannot be a problematic thing in virtual hearings.

There are many other benefits that can avail by hearing cases virtually like saving the court costs, admissibility of evidence, saving the travelling time and there will be no inconvenience for the domestic works of the parties.

CHALLENGES:

Virtual courts are emerging technological developments, should overcome the challenges in the execution of court proceedings without any technical glitches and shortcomings.

  • Setting up virtual courts will require an updated version of new technology, which is a cost-intensive
  • Confidentiality and hacking: confidentiality and cyber security are the major concerns on top of technological creations like virtual courts.
  • There is much possibility of fabricating and altering the electronic evidence.
  • The comportment of witnesses and false evidence: in virtual courts, there will be distortion while recording the evidence through video conference, particularly during cross-examination it is hard to detect the facial expressions, gestures, and postures of the witness.
  • One of the main challenges of the virtual hearing of cases is non-availability or poor electricity and internet connectivity in remote villages.
  • The process of filing the cases online is a complicated process.
  • It is defeating section-159 of Indian Evidence Act, 1872 permits the witness to refresh his memory with the permission of the court during cross-examination, whereas during the video conferencing there is a mere chance of providing scripted answers by the witness which is defeating the whole purpose of cross-examination.

CONCLUSION:

It is a very much viable option to install the virtual court-rooms in India. As the world is developing technologically, virtual courts are one of the significant aspects of judicial developments. Speedy justice, accessibility, affordability are fundamentals for the judicial administration which can be achieved by the virtual hearing of cases. The E-judiciary or the virtual courtroom or any other online method for conducting the cases is need of the hour as the pendency of the cases are increasing and the burden on the judiciary is also increasing due to the pendency of the cases. The virtual courtrooms and other online facilities enable the court to function in an efficient manner and it increases the transparency in the court proceedings. This measure also helps the government to reduce the cost involved in the litigation and a lot of time can be saved by the virtual courtroom method. Even Justice D.Y. Chandrachud commented that the online system and conducting the court proceedings through video conference will allow the court to reach common people and the Supreme Court is under the plan to introduce e-filings soon. To regularize the virtual hearings statutory framework should be established. This step is very welcoming and it is the need of the hour to introduce virtual courtrooms in India, which helps the country in the long run.

FOOTNOTES

[1]  Will Virtual Courts Create Courthouse Relics?’ The Judges’ Journal 2013 vol 52(2) 32.

[2] http://www.saflii.org/za/journals/DEREBUS/2014/200.html.

[3] (1994) 3 SCC 569 (India).

[4] Section 65A- Special provisions as to evidence relating to an electronic record.

[5] Admissibility of electronic records.

[6] “Evidence” – Evidence means and includes:- 1) all statements which the court permits or requires to be made before it by witnesses, in reference to matters of fact under inquiry; such statements are called oral evidence; 2) all documents including electronic records produced for the inspection of the court. Such documents are called documentary evidence.

[7] AIR 2005 Cal 11, (2004) 3 CALLT 263 HC.

[8] https://www.barandbench.com/columns/virtual-courts-a-sustainable-option.

[9] (2018)11 SCALE 475 (India).

[10] AIR (1967), 1966 SCR (3).

[11] (2015) C. NO. 454 WRIT PETITION.

[12] 44 M.J. 464 (C.A.A.F.) (1996).

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