Technology in Litigation: Are Virtual Courts the Way Forward?

  • Akshat Agrawal

INTRODUCTION

The 21st century has been witnessing the growth of technology sweeping across every field and contributing to the development process, which has been imperative in enhancing work efficiency. The Judicial System of the country is no different in making way and incorporating these technological advancements in the justice delivery mechanism. The world is battling with coronavirus (COVID-19) pandemic which has posed a severe public health challenge for countries across the globe. Amidst the social distancing measures and lockdown directives that have nestled down people in their homes, the Indian Judiciary still holds the responsibility of not letting the justice dispensation mechanism to get disrupted. The situation has encouraged and compelled the courts in India to experiment with the digital mode of hearing the cases. The impetus of necessity has pushed the courts to bring innovative technological changes in its working.

The Supreme Court of India exercising its power to pass any order required for doing justice in any case[1] laid down specific guidelines for all courts to make use of technology to take up the cases for hearing. The apex court of the country and some of the other lower courts have been taking up matters for hearing via video-conferencing in virtual courtrooms.[2] In the present circumstances, it is essential for the country’s judicial mechanism to remain operational and not pile upon to the already existing number of cases pending with it. The system of conducting virtual courts on digital platforms is one way for the judiciary to remain in function. The article primarily examines the prospects of digital courts and virtual hearings and critically analyses the challenges in its implementation. It also touches upon the ways to overcome those challenges.

THE DEVELOPMENT PROSPECTS

The Indian Judiciary has always been under the picture of proliferating backlog, increasing arrears, and unprecedented delays for the disposal of cases. The introduction of technology and digitization of the judiciary has been attempted by way of different schemes. The e-courts project is one of those schemes, which was a step forward for computerization of activities like filing of cases, order sheets, judgments, listing and status of cases. It was formulated with the vision to transform the Indian Judiciary by ICT enablement of courts.[3] The current situation of lockdown amidst pandemic has severely affected the legal fraternity’s working. It has created and widened the scope of virtual courts in the judicial mechanism of the country. The uses of virtual platforms were limited only to the extent that it was used to examine the evidence and record statements when the witness was not able to be present at court. The present situation is acting as a catalyst to augment the realm of digital technology in judiciary. 

To ensure timely delivery of justice and avoid any disruption in the justice mechanism for the citizens of the country, the Supreme Court has been on its toes to explore all the possible ways to set up digital courts and make virtual litigation a reality. A circular issued by the Additional Registrar of the Supreme Court highlights the intent and interest of the apex court in establishing the virtual system for judicial mechanism. It says that “A virtual system of judicial dispensation needs to be readied should the lockdown end. Even otherwise, returning to normalcy after the lifting of lockdown may take time.”[4] The Supreme Court has been taking only the urgent matters for hearing now but plans to include other cases for virtual hearings as well. The development of virtual platforms would necessarily require the courts to boost the available infrastructure to large screens, flawless web applications, and high internet connectivity to avoid any interruption in the hearing process.

The plan of action for virtual courts would also require setting up legislation backed authority to ensure the best of technology, and the best of minds have integrated way of working for the needs of the system without hampering the judicial independence.[5] Any adoption of new technology is successful only when it creates value and increase efficiency for the existing system in place. Understanding the viability of virtual courts would be incomplete without getting to analyze the pros and cons of the project. The implementation of the virtual platforms would not only reduce the costs but also help in speedy disposal of cases.[6] It would help create an efficient judicial system where the productivity of each factor involved in the process increases. It would help in better utilization of workforce and infrastructure and substantially eliminate the scope of malpractices and biasness in the process of justice dispensation. The experience of digital courts would also be more personalized and private as compared to open court hearings. Glancing over the other side of the picture and accessing its application, in reality, there would be numerous challenges in implementation as well, which the judiciary would have to tackle.  

CHALLENGES IN IMPLEMENTATION

The virtual hearings conducted by the Supreme Court are “far from satisfactory” and are “deeply disappointing,” was the opinion conveyed by the President of the Supreme Court Bar Association and Senior Advocate Dushyant Dave.[7] The platform of digital courts might seem to grant wider access to justice, but that would only be possible when every factor involved in the system like advocates, judges, litigants, court staff, and media have means to engage in the virtual hearings. The statistics till 2017 suggest that only 28% of the population has proper access to internet. [8] The practical issues in using the digital platform are far fledged, including connectivity issues, outdated audio-video equipment, absence of power backup, and, most importantly, digital literacy amongst people. Addressing these challenges and reducing the shortcomings would require a massive investment in ICT to meet the needs which would be a significant financial burden.

Apart from technical glitches and economic costs, there would be a considerable amount of legal challenges in execution as well. Primary amongst which would be the chances of malicious witness statement and false evidences. The traditional court system allows the court to examine and evaluate the statements of witnesses along with their demeanor which many a times help lawyers to discover the truth. It would not be possible in case of virtual hearings and there would be ample of opportunity for the parties to testify falsely. The online platform also creates a threat of identity theft by the parties or any third party in regard as there would be comparatively less human supervision as compared to physical hearings.[9] The situation of open access to the hearings would also not be available in these virtual hearings, which used to be present otherwise. The Supreme Court in many instances has held the importance of open access to public for the hearings which upholds the legitimacy and effectiveness of the courts. In the case of Swapnil Tripathi[10], the apex court has also laid down guidelines regarding live streaming of court proceedings for citizens who wish to witness the hearings.

CONCLUSION

In the words of Albert Einstein “In the midst of every crisis, lies a great opportunity.” The on-going situation has turned the way of operation in every field including that of legal fraternity.  It is undoubtedly an opportunity for the Indian Judiciary to encourage and embrace the virtual system for hearing the cases and continue even after normalization. It would be a substantial step in improving the legal profession’s standards and increasing the transparency in the system. To ensure proper execution, it is crucial to draw a well-defined policy framework addressing all the possible issues that might come up in implementation. The current infrastructure would require an upgrade to meet the required needs and provide a seamless experience. To make the process smooth in functioning, the courts need to make use of user-friendly platforms that could be easily accessible to the common man.[11] It is also essential to gain people’s confidence in using digital means for resolving their disputes.

Though there might seem to be several challenges in implementing digital courts, the scope of virtual hearings cannot be completely disregarded. The Indian judicial mechanism might not be entirely ready to incorporate and proliferate the use of virtual platforms. However, it is undoubtedly the time for the Supreme Court and the High Courts to set an example using the same. It is not completely possible to get away with the conventional court room scenes and physical hearing of cases for all practical reasons. The virtual courtrooms cannot replace the open court hearing system in its entirety. The implementation of e-courts and virtual hearings would not be a substitute but a supplement to the existing mechanism in place. It would ensure reduced cost of litigation in long run and would also widen the scope for litigants to access the justice delivery mechanism.[12] It would also create opportunities for the young lawyers to appear and argue the cases independently. Therefore, it would be no wrong to conclude that technology in litigation and judiciary can be implemented in a structured and progressive manner where safeguards and security measures are not compromised.

The author is a third-year law student at the School of Law, Christ (Deemed to be) University, Bangalore.


[1] INDIAN CONST. art 142.

[2] Senior Advocate Arijit Prasad, Virtual Courts – Can they replace open Court hearings?, LAW STREET INDIA (Aug 19, 2020, 5:26 PM) http://www.lawstreetindia.com/experts/column?sid=410.

[3] E-courts: About Us, ECOURTS SERVICES (Aug 22, 2020, 7:57 PM) https://services.ecourts.gov.in/ecourtindia_v6/static/about-us.php#stats_all.

[4] Raghav Ohri, Supreme Court explores ways to set up more virtual courts to ensure justice delivery, THE ECONOMIC TIMES (Aug 22, 2020, 10:18 PM) https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-explores-ways-to-set-up-more-virtual-courts-to-ensure-justice-delivery/articleshow/75239487.cms.

[5] Deepika Kinhal & Ors, Virtual Courts in India: A Strategy Paper, VIDHI CENTRE FOR LEGAL POLICY (Aug 22, 2020, 11:59 PM) https://vidhilegalpolicy.in/research/virtual-courts-in-india-a-strategy-paper/.

[6] R Anand, V Ranganathan, It’s time for a virtual judiciary, THE HINDU (Aug 23, 2020, 12:18 PM) https://www.thehindu.com/opinion/op-ed/its-time-for-a-virtual-judiciary/article31512221.ece.

[7] Bhadra Sinha, Apoorva Mandhani, Virtual courts system is pathetic, justice not being done: SC Bar body chief Dushyant Dave, THE PRINT (Aug 23, 2020, 8:25 PM) https://theprint.in/judiciary/virtual-courts-system-is-pathetic-justice-not-being-done-sc-bar-body-chief-dushyant-dave/437864/.

[8] Aarati Krishnan, How many Indians have Internet?, THE HINDU (Aug 23, 2020, 8:53 PM) https://www.thehindu.com/business/how-many-indians-have-internet/article17668272.ece.

[9] Pramod Kumar Dubey, Virtual Courts: A Sustainable Option?, BAR AND BENCH (Aug 23, 2020, 11:09 PM) https://www.barandbench.com/columns/virtual-courts-a-sustainable-option.

[10] Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 628.

[11] The Big Picture – Virtual Courts and Way Forward, DRISHTI (Aug 24, 2020, 9:42 PM) https://www.drishtiias.com/loksabha-rajyasabha-discussions/the-big-picture-virtual-courts-and-way-forward.

[12] ET Bureau, Virtual Courts must be married to physical courts to improve the justice delivery mechanism: Mukul Rohatgi, THE ECONOMIC TIMES (Aug 24, 2020, 10:51 PM) https://economictimes.indiatimes.com/news/politics-and-nation/virtual-courts-must-be-married-to-physical-courts-to-improve-justice-delivery-system-mukul-rohatgi/articleshow/76343746.cms.

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