Could Virtual Courts in India Allow Legal Access Even After the Pandemic?

The pandemic affected how we interact with the legal process.  However, it also pushed virtual courts in India and digitisation of the judicial process. From the materiality of paper files and the spatiality of legal galleries to virtual hearings, the aftermath is optimistic despite the circumstances that propelled this change. However, the virtual existence of the court has also offered several limitations, which still need to be addressed. Krati Sharma lists the advantages and limitations of virtual courts and hearings in India. She also talks about e-courts and suggests specific measures that could ease setting up virtual courts in India.

virtual courts in India

By Krati Sharma, a fourth-year law student at Baroda School of Legal Studies, Maharaja Sayaji Rao University, Gujarat.

Introduction

The dynamics of the legal systems are changing rapidly. Therefore, in a contemporary scenario, one can seek justice from any corner of the country. Indeed, it’s an incredible vision of the new normal and probably the only positive that came out of the pandemic. The Covid-19 pandemic and lockdowns set the imagination of a virtual legal future into reality.

The Supreme Court (SC) firmly guarded its ‘virtual courts framework’, saying that the institutional prerequisite was to guarantee the ‘administration of justice’, which shall not disintegrate despite the pandemic.[1]

When the lockdown was reported, the legal executive immediately coordinated to hear critical issues through video conferencing. E-recording conventions were quickly drafted and actualised. Regardless of the underlying glitches,  the framework improved and developed within time to the legal executives’ credit.

The judiciary has been hearing issues through virtual court hearings. It also digitised the quotidian paperwork to some extent. In addition, the Supreme Court also circulated directions to address and prioritise matters according to emergencies, given the pandemic. Several steps have advanced the possibility of virtual courts in India even after the pandemic, and this piece shall address the various factor that can further digitalisation.

Hearing in Virtual Courts in India

Within a couple of months since the imposition of the lockdown, the SC has instituted documents filing online. Further, high courts initiated live streaming their virtual hearings. For instance, the Gujarat High Court conducted live online streaming of hearings on YouTube. And now, even the Supreme court has followed suit. NV Ramana, the Chief Justice of India,  recently commented on how virtual hearing could ‘demystify’ the justice delivery process.

The new digitalised framework has provided flexibility to record, cure errors, pay court fees and file case documents from anywhere at any time. Even Former Chief Justice of India Bobde, last year, had pressed a need for resorting to e-hearing. He hoped the same to be an ‘irreversible change’ that needed to expand through the country.

CJI had significantly emphasised the new change and stated that there is no turning back to old time-consuming methods. Thus, this current framework would be a mixture of the workforce and virtual implementations.

The SC implemented due measures and adopted technological assistance to ensure effective administration to dispense justice to India’s people to cope with the situation. The court also laid out the ‘Guidelines For Court Functioning Through Video Conferencing During Covid-19 Pandemic’. One of the mentionable excerpts from the document read:

“The Indian Judiciary has incorporated Information and Communication Technology systems through the e-Courts Integrated Mission Mode Project (e-Courts Project) as part of the National eGovernance Plan (NeGP) has reduced conventional impediments and legal uncertainty surrounding the use of virtual courts. ICT enabled infrastructure is available across all courts including the district judiciary, which constitutes the initial interface of the court system with the citizen.[2]

This idea of incorporating ICT goes way back and is not just exclusive of exceptional circumstances like the pandemic. For instance, in 2003, in State of Maharashtra v Praful Desai[3],  the court recognised the use of technology. This court held that the term ‘evidence’ includes electronic evidence and that video conferencing may be used to record evidence. However, this recognition didn’t consider deploying new digital systems or legal scapes but sought assistance from technology that already existed at the time.

Splitting the Supreme Court on the grounds of Geographic Access

The Supreme Court’s fragmentation and the loss of physical space have been a point of discussion recently. Regarding the same, we can refer to Article 130 of the Constitution.

Article 130 lays that the Supreme Court “will sit in Delhi or such other place(s)”. The SC also actualised Article 39A of the Constitution as a need of time and consecutively urged to impose altogether on high courts without any fragmentations therein. Yet, setting up benches in different areas is more complicated than one might expect.

If one can build innovative systems and arrangements for ongoing transcription and ensure equity for all in the same amount of resources as regular courts. In that case, virtual courts are a far better solution.

Likewise, other backhanded advantages will include making a more productive legal framework with lesser court occupancy. The same will help to utilise time effectively.

The transformative character of digitised courts in 2020 is akin to the 1980s that marked the beginning of the judicial review. Therefore, the legal system has an opportunity to drive the nation towards virtual demonstration of legal work.

The E-Court Project and How it Further’s Virtual Courts in India 

The conceptualisation of the E-court project was based on the ‘National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary’ (2005). It was submitted by the E-Committee of the Supreme Court of India, with a vision to transform the Indian judiciary, enabling courts to implement ICT.[4]

The initiative aimed at:

  • Providing coherent & efficient service delivery to people of India complying with e-Court Project Litigant’s Charter.
  • Facilitate developed, implicative and supportive systems in courts.
  • Provide a transparent and accessible system of information to its stakeholders.
  • Improvise the judicial system to deliver justice to concerned litigants with utmost convenience in cost, time and reliability.

Objective and Implementations: The E-Courts Project

The e-Courts project adopted a mission mode, steered by the Supreme Court’s e-Committee at the helm of affairs. The Indian government and the SC constitute the e-Committee.

As per Phase II of the policy action plan, the following is the Committee’s composition across the three levels of the judiciary. A judge in charge of the e-Committee and depending upon the subject to be discussed, the CJI has the authority to invite or co-opt additional members. The same also includes taking consultants on board on a requirement basis. As a common trend, it is also seen that members of the e-Committee have also included member judges of the Supreme Court.

The legal and constitutional principles in correspondence to virtual courts in India have been formed to integrate the real and virtual aspects. Following are some fundamental principles laid down:

  1. Speedy Justice and time-saving proceeding: the purpose of the judiciary is not just to award justice but fundamentally to reduce the longitude of the proceeding as per Article 21. Adapting technological assistance is not merely a digitalised or advanced system to its end but instead to further develop it to reduce judicial delays.
  1. Equal access and non-discrimination: Article 14 enshrine equality before the law to all persons within the territory of India. Secondly, one can hope that technology might expedite the legal process. And given the increasing accessibility of the medium, it could dilute the complexity of approaching the legal order. However, it’s important to address that the same could act as a barrier for many too.
  2. Fair and due process: One of the reasons to introduce virtual courts in India is to provide a more open and fair platform following the due process. Digitisation of judicial documents could enforce the ideals of due process by saving the accused’s right to privacy. For instance, the authorised person can only mine relevant information, perhaps immuning the accused from unreasonable search and seizures.
  3. Adhering to the principle of natural justice: Natural justice principles aim to provide equal opportunities to be heard. However, certain technical loopholes may cause injustice to one party. For instance, if one party is physically present and the other is virtually present, technical glitches could delay or negatively affect the judge’s subconscious.
  4. Open justice and algorithmic transparency: The transparency associated with the open courts have traditionally built confidence and had set down the faith in the human intellect. However, when it comes to virtual courts, the e-Committees is ensuring transparency to the public digitised open courts via video conferencing and live to stream of proceedings and judgments held in courts.
  5. Privacy and data protection: Before virtual courts in India can become a reality, the legislature needs to frame laws to ensure privacy to protect sensitive data. There is a need to balance the interest of litigants, related parties to the cases, and the judiciary. The same could be achieved by laying down strict laws and standards to protect information stockpiles in the court’s database so that the concerned sensitive data would not be leveraged.
  6. Increased accountability: furthermore, the Hague Charter for Accountability in the digital age imposes a duty for internet actors to demonstrate the appropriate level of responsibility for the consequences of their actions and operate within the confines of the rule of law.

Thus, there is a need to impose accountability measures and a system of checks and balances. The same can further steer egalitarian digitisation of the judicial system. Such a system can be achieved by increasing transparency in line with the above principles, such as disclosure of budgetary information and the disclosure of resources tapped into to acquire the technical know-how used by the judiciary in technology integration.

We can build an efficacious working model for virtual courts in India. First, however, we will need to address the digital divide. Moreover, strengthening the veracity of high-tech technological assistance and adopting a better alternative drive the judiciary towards sustainable development of the e-court system.

Further research on issues such as the virtual courts’ contribution to users interaction, usability with different teaching methods and techniques can revamp the process. The same could remove any impediments that those who interact with the law face at present.

The e-court system aids India in more than one way:

  • An electronic system would enable the court officials, parties to the case and public to have full access to the information online with a simple click.
  • Advocates can file the required documents efficiently from their office or home without stressing filing documents in courts.
  • An e-court system would facilitate systematic case management in courts, which will eliminate backlogs of pending cases. It would also improvise the storage of records of files, which will reduce the displacement of information.

 

Limitations

Although there are benefits to the digitisation of the judiciary, there are certain limitations to its full realisation, which needs attention:

  • Holding hearings on a digital platform in India is challenging and a consuming task. Thus, setting up a framework in areas where the technology is yet to be a part of the court system, like lower courts in various districts, creates barriers for the advocates and clients to present their cases effectively.
  • India still lacks advanced technology expertise, which plays a vital role in building an e-court system. While we are a developing country and still advancing in technology, India will take time to implement such changes.
  • Indian e-court systems may lack a strongly encrypted system to protect tons of electronic data, which encourage hackers to have unethical access to the confidential data of courts.
  • The new lawyer might miss the spatial experience of real courts, which help them boost their confidence and enhance their personality in an open court.

Some Suggestions to Overcome limits to Digitalisation 

Over and under, the brighter aspects of the e-Court system have been perceived and percolated. However, the limitations need reworking and some planning. Towards the end, it will be best to suggest steps that could ameliorate the process.

To start with, the court will need to develop a well-defined framework supported by an accessible platform and direct e-court system in India. As addressed earlier, India also needs to harp on advanced infrastructure to run an e-court system that eradicates the digital divide, simultaneously upping judicial functioning.

While the digitised judicial systems give some semblance of convenience for the people who interact with the court, digitisation also brings threats of intrusion etc. For the same, these systems must be secured and encrypted to protect and restore extensive information of the court.

Further, the centre has formulated a committee to operate the e-court system. But the bureaucracy should be trained effectively to cope with changing systems and digitalisation. Moreover, all persons dealing with the law within the court, including judges and lawyers, should be made familiar with new systems.

It is essential that apart from skilling, the interface of such systems must be user-friendly for all people without complicating access to information or the law.

Conclusion

This piece addressed how newer systems of interacting with the law developed as a response to the pandemic. And thus, the start of digitisation of the judiciary aimed at easing access and usage of the new system. Hence, once the objective is achieved, more cases and urgent matters can be listed for adjudication. Therefore, it is prudent to run more virtual courts for the timely delivery of justice.

In India, a significant amount of time goes into resolving disputes. If the e-courts project is implemented, it will go a long way in saving costs and time for the litigants.

The government is taking active steps to establish e-courts all over India, and as a result, the efforts will provide quick and cost-effective solutions to the litigants. With the help of e-courts, the judiciary in India can overcome the challenges and make the service delivery mechanism transparent and cost-efficient.[5] Thus, the e-court project anchors the executive and the judiciary to reaffirm their resolve to support a speedy, efficient and quality justice delivery in the country.

Like every new idea in history, this too will have its detractors. Fears of job redundancies with the increased digitised processes are not unfounded. However, on the flip side, the size of the pie will grow, which will create other job opportunities and a productive environment for innovative businesses and professions to develop and thrive appurtenant to the legal field.

Contrary to belief, automation will make the legal profession more equitable to lawyers across the country and create a fair environment for litigants.

Endnotes

[1] Supreme Court of India, Suo Motu Writ (Civil) No 5 of 2020 SC decided on 6th, April 2020, (Guidelines for court functioning through video conferencing)  https://main.sci.gov.in/supremecourt/2020/10853/10853_2020_0_1_21588_Judgement_06-Apr-2020.pdf

[2] Supreme Court of India, Suo Motu Writ (Civil) No 5 of 2020 SC decided on 6th, April 2020, (Guidelines for court functioning through video conferencing) < https://main.sci.gov.in/supremecourt/2020/10853/10853_2020_0_1_21588_Judgement_06-Apr-2020.pdf

[3] The State of Maharashtra and P.C. Singh vs Praful B. Desai and Ors AIR 2003 SC 2053

[4] E-committee, Supreme Court of India (Information and Communication Technology in Indian Judiciary)<Official Website of e-Committee, Supreme Court of India | India (ecommitteesci.gov.in)

[5] Times of India, Pradeep Thakur (e-court app brings reform in justice delivery system) 4th March 2019 < eCourts app brings reforms in justice delivery system | India News – Times of India (indiatimes.com)

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