The Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its report submitted on September 11 recommended continuation of virtual courts for identified categories of cases even after the COVID-19 pandemic is over.

The panel chaired by senior BJP leader Bhupender Yadav submitted its report to Rajya Sabha Chairman M. Venkaiah Naidu.

The Committee held a series of meetings with secretaries of the department of justice and legal affairs, secretary general of the Supreme Court and representatives of Bar Council of India and others on the issues related to the functioning of virtual courts. 

The panel concluded that virtual courts may have shortcomings but they constitute advancement over the existing system and are worth embracing.

Virtual courts in India

The unpredictable lockdown caused by the coronavirus pandemic crippled the functioning of Indian judiciary. In order to adjudicate urgent matters and to enable the judicial system to discharge its constitutional mandate of providing access to justice at all times, the Supreme Court has rolled out virtual court hearings. 

During the pre-COVID period, the virtual court setup was primarily used for conducting remand matters to prevent movement of prisoners between courts and jails. Such virtual court facilities have been operationalised between 3,240 court complexes and corresponding 1,272 prisons. 

Legal sanctity was given to video-conferencing by the Supreme Court by an overarching order invoking Article 142 of the Constitution of India passed on April 6, 2020 which covered all the High Courts in the country. Consistent with the peculiarities of the judicial system in every state and in view of the dynamic health situation, the High Courts were left with the discretion of adopting technology after customisation to suit their purpose. Model rules on video-conferencing have been circulated and the High Courts are in the process of adopting them. The district courts were to adopt the mode of video-conferencing prescribed by the concerned High Courts. 

Debate over definition of court

Discussion on virtual courts revolves around a central question — is court a place or a service? 

The supporters of virtual courts argue that the court is a service and not a place. 

As far as India is concerned, neither the civil and criminal procedural codes nor the General Clauses Act embodies the definition of the term ‘court’. However, as per the legal glossary of the legislative department under the ministry of law and justice, ‘court’ is a place where justice is administered. 

Further, Section 3 of the Evidence Act, defines ‘court’ as follows: Court includes all judges and magistrates and all persons, except arbitrators, legally authorised to take evidence. 

In Section 20 of the Indian Penal Code, ‘Court of Justice’ is defined as a judge, who is empowered by law to act judicially alone, or a body of judges which is empowered by law to act judicially as a body, when such judge or body of judges is acting judicially.

The US Federal Judiciary defines ‘court’ as a government entity authorised to resolve legal disputes. Black’s Law dictionary defines ‘court’ as a governmental body consisting of one or more judges who sit to adjudicate disputes or as a place where justice is judicially administered.

From the above, it is clear that although the definition of court varies, they all seem to have two elements in common. The court is a government entity comprising one or more judges and that court deals with the administration of justice, thus making it clear that court is more of a service than a place. 

What are virtual courts?

In virtual courts, plaint and other documents — such as vakalatnama and written submissions — are filed electronically, arguments are heard over video-conferencing/teleconferencing, evidence is submitted digitally and  judges decide cases online either presiding from the physical courtroom or sitting in some other place. 

Thus, virtual courts transform the documentation, evidential and procedural mechanisms and conduct hearings online from start to finish. 

Difference between virtual courts and online courts

Online courts constitute an advancement over virtual courts. The only difference between virtual courts and online courts being that in the former hearing is synchronous and the latter involves asynchronous form of interaction. 

This means that, in virtual court hearings, the judge, advocates, litigants and witnesses need to be available at the time of hearing for a case to progress. In online courts, the participants need not be present simultaneously. Arguments and evidence are presented to the judge without the parties being together at the same time.

Online dispute resolution refers to the use of online platforms for the resolution of disputes between parties through alternative dispute resolution mechanisms.

Benefits of virtual courts

• Virtual courts are more affordable, citizen friendly and offer greater access to justice. They yield substantial savings in costs for both individual litigants and courts. Traditional courts, by and large, are accessible to very few people and even then only at disproportionate expense and effort. Virtual courts can help overcome these issues. 

• At present, more than 30 million cases are pending in different courts across the country. Transfer of certain categories of cases from regular court establishments to virtual courts will reduce the pendency of cases which has been clogging the wheels of justice for decades. 

• Virtual courts can promote the principle of distributive justice, and for that,  court services should be accessible to all and the service should be affordable by all. Digital Justice is cheaper and faster. People living in remote and far flung areas can also take part in court proceedings through video-conferencing and cut expenses to be present in the courtroom. 

• Video-conferencing facilitates a lawyer to argue in any court in any part of India. Cases can be heard from several courts in a single day. A lawyer can argue in one court in the morning, and be present for a case in another court later in the day.

• Virtual courts enable witnesses to provide testimony from a safer environment. Also, virtual hearings are more convenient and less traumatic for children, women and victims of abuse and the differently-abled who cannot easily attend physical hearings in courtrooms. 

• For certain categories of cases, like appeals, and final hearings, where physical presence of the parties/counsels is not required, virtual hearing is sufficient. The expenditure involved in the establishment of a large number of tribunals/courts can be cut down considerably. This will also reduce the crowd in the court and cut down other litigation costs. 

• Virtual courts can be extended permanently to various appellate tribunals like Telecom Disputes Settlement and Appellate Tribunal (TDSAT), Intellectual Property Appellate Board (IPAB) and National Company Law Appellate Tribunal (NCLAT) located across the country, which do not require personal appearances of the parties/advocates.

• It can deliver results faster and with fewer resources. Virtual courts reduce commute time to the courts and waiting time at the courts. Dedicated time slots will result in more disciplined time management.

Challenges and solutions

A large number of advocates and litigants, especially those living in rural and remote areas, lack basic infrastructure and high speed internet connection required for virtual hearing of cases. This digital divide makes access to justice unaffordable and inaccessible for a vast majority.

Digital divide has three dimensions:

* Access divide (access to equipment and infrastructure).

* Connectivity divide (access to broadband connectivity).

* Skill divide (knowledge and skills required to use digital platforms).

E-Seva Kendras will go a long way in bridging the ‘access divide’ and such facilitation centres are expected to be set up in all court complexes across the country at the earliest.

To tackle connectivity divide, the Committee has recommended to step up efforts to ensure timely implementation of National Broadband Mission, which envisages broadband access to all so that the services provided by indigenous communication satellites are fully harnessed and the goal of universal broadband access is achieved. 

The Committee added that the judiciary may also consider such innovative solutions as launching mobile video-conferencing facilities for the benefit of advocates and people living in remote areas.

To tackle ‘skill divide’, the Committee has recommended that training and awareness programmes should be conducted in all court complexes across the country in order to acquaint advocates with the technology and to enable them to acquire skills required for handling digital platforms so that advocates operate digital platforms themselves. Advocates would be required to use technological skills in combination with their specialised legal knowledge and therefore, they should keep up with the changing times.

One of the biggest hurdles being faced during virtual hearings is that of poor digital connectivity. Technical glitches are plaguing virtual court hearings, especially during peak hours when many people log into the video-conferencing system.

Improving the quality of courtroom technology is a necessary precondition for virtualisation of court proceedings. The Committee has recommended that a study of courtroom design be commissioned and customised software and hardware to facilitate virtual court hearings be developed to suit the needs of Indian judiciary.

Open court principle

Some experts are concerned that virtual courts threaten the constitutionality of court proceedings and undermine the importance of Rule of law which forms a part of the basic structure of the Constitution. Virtual court hearings go against the spirit of open court principle, they said. 

Virtual hearings are not in consonance with the concept of open court encapsulated in the Constitution of India under Article 145(4), Section 327 of the Code of Criminal Procedure, 1973 and Section 153B of the Code of Civil Procedure, 1908.

The Supreme Court has reaffirmed the importance of open court principle on multiple occasions and further observed that live streaming of court hearings is an extension of open court principle. It has emphasised the significance of live streaming of court proceedings in promoting openness and transparency which in turn reinforce public faith in judicial system

In many countries, court proceedings are recorded in some form or the other. 

The Committee agreed with the observation made by the apex Court that live streaming court proceedings, especially cases of constitutional and national importance having an impact on the public at large will promote transparency and openness. The judiciary may also consider broadcasting virtual hearings of certain specified categories of cases to further the principle of open justice and open court, the Committee noted. 

Issues regarding data security 

There are concerns that virtual courts will compromise privacy of data as well as confidentiality of discussions and court proceedings. For instance, courts in the US had to deal with ‘Zoom bombing’, an unwanted intrusion by hackers into a video-conference call, while conducting court proceedings using Zoom, which is a third party software application. 

Currently, third party software applications such as Vidyo, Cisco and Jitsi are being used in India for conducting court hearings through video-conferencing.

The Committee thinks that third-party software poses a major security risk as such software programs and applications are prone to hacking and manipulation. 

The Committee has recommended the ministry of law and justice and the ministry of electronics and information technology to address data privacy and data security concerns while developing a new platform for India’s judicial system. 

It also recommended that blockchain technology should be leveraged to improve reliability of evidence and security of transactions and to fortify digital security of case files. Proper standardised systems of authentication need to be put in place. Online systems should be underpinned by proper procedural safeguards. 

Technologies must be built and incorporated in the court systems in such a manner that fundamental legal principles such as participatory justice, fairness, impartiality and access to justice are not compromised. 

Legal technology startups engaged in innovative solutions can play a crucial role in harnessing the unlimited potential of technology to connect stakeholders in the justice delivery system and in finding solutions that are affordable and efficient.

E-Court Mission Mode Project

The e-courts project was conceptualised on the basis of ‘National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary-2005’.

The e-Courts National portal (ecourts.gov.in) was launched August 7, 2013. This provides case status, daily cause-list, cases filed and cases registered through the case information System (CIS) Software.

The first phase of the project was implemented during 2007-2015 and the second phase was launched in 2015. It is monitored and funded by the Department of Justice and implemented by the National Informatics Centre (NIC). 

The Committee noted that the project is progressing at a slow pace. Without proper infrastructure in place, virtual hearing of cases is an impossible proposition.

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