Virtual era of dispensing justice: A commendable measure by judicial system of India

In such rather ominous and difficult times, Judicial system have paved the way to make justice accessible to each and every citizen of India. As we all know, the pandemic has hampered entire world’s operations irrespective of the work of field but at the same time it has pushed us to make room for huge changes in our daily activities as well as services, majorly being embracing of modern technology for rendering the same.

Adopting necessary social distancing measures in wake of rising cases of Covid-19, the Supreme Court of India has been conducting hearings online via video conferencing since the month of March,2020. Judges have been assembling at the houses or chambers of one of their colleagues and have been hearing cases through the video conferencing applications. Although, same is available for urgent hearings only for now.

The decision was made by a seven-judge committee constituting of Justice Arun Mishra, RF Nariman, UU Lalit, AM Khanwilkar, DY Chandrachud and L Nageswara Rao of the Supreme Court, the committee was headed by Justice N.V. Ramana to continue judicial proceedings virtually and not revert to regular(physical) form of hearings, considering serious rise in situation of novel coronavirus in India.

Supreme Court of Registry issued a letter to office-bearers of the Supreme Court Advocates-on-Record Association stating that the “ Supreme Court of India shall continue functioning through the virtual court system for the present, with further direction that the matters may be listed before the Hon’ble Judge-in-Chambers as well as before the court of registrar, through virtual court system only, to enable wider participation of learned advocates.”

On March 27, for the first time ever, three benches of the Supreme Court of India assembled in the residential offices of the respective judges to hear matters through video-conferencing. It marked the beginning of a new experience and the promise of greater digitisation of the judicial system in the future. Advocates have been appearing for hearings on virtual screens with a 100 Mbps Internet speed and since then some important cases have been heard.

Since then various courts, tribunals and jails have been moving towards online hearings procedure. It is, however, a first for the higher echelons of the judiciary to adopt the online mode to hear urgent matters. We have to admit “Work from home” has become the new normal for us, irrespective of any career or profession.

PROCEDURE LAID DOWN

1. According, to the procedure laid down by the Supreme Court, lawyers are first need to file their application, preferably through the e-filing mode on the court website, after which they are allowed to send another application containing explanation on the urgency of their plea. If accepted, their plea is then listed before the court. (In addition to this, the regular filing counters at the Court are also functioning.)
2. Then a WhatsApp group is created by the registry before the hearing, for lawyers to raise queries, if they have any, related to the video-conferencing process. In addition to that, helpline numbers have also been designated for their assistance.
3. After that, an invitation link for ZOOM/VIDYO, video-conferencing applications, is sent by the court registry to the mobile numbers or e-mail addresses of the lawyers around half an hour before the scheduled hearing. Lawyers are specifically barred from sharing or forwarding the link to anybody else in public. Thus, the proceedings can now only be viewed by the lawyers and their clients, and are not open for public viewing.
4. Also, the parties have been strictly directed to keep themselves on mute at all times, except for the time when they are asked to make submissions by the bench. They are also prohibited from recording, copying, storing or broadcasting the proceedings.

JUDICIAL PRECEDENTS IN SUPPORT OF THIS MEASURE

NARESH SHRIDHAR MIRAJKAR AND ORS VS STATE OF MAHARASHTRA AND ANOTHER[1]

The Supreme Court verdict of year 1966 had rejected the argument that ‘in-camera’ proceedings were unconstitutional and held that: “The High Court has inherent jurisdiction to hold a trial ‘in-camera’ if the ends of justice clearly and necessarily require the adoption of such a course. Section 14 of the Official Secrets Act, 1923 in terms recognises the existence of such inherent powers in its opening clause, and Section 151, Code of Civil Procedure, saves the inherent power of the High Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process  ofthe Court. Such a power includes the power to hold a part of the trial in camera or to prohibit excessive publication of a part of the proceedings at such trial.”

STATE OF MAHARASHTRA V. PRAFUL DESAI[2]

The SC in its 2003 judgement, has held in State of Maharashtra vs PrafulDesaithat the recording of evidence by way of video conferencing might be done in cases where the attendance of the witness cannot be ensured without delay, expense and inconvenience. It was also held by the apex court that recording of evidence by video conferencing was a ‘procedure established by law’ under Article 21 of the Constitution and does not violate the rights of the accused.

KRISHNA VENI NAGAM VS HARISH NAGAM[3]

A Division Bench of the Supreme Court, in the year 2014, while allowing a transfer petition, made observations about the usage of video conferencing facility to hold matrimonial proceedings when both parties were facing difficulties, being not located within the jurisdiction of the same court and held that:

• It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties.
• In every district of our country, video-conferencing facility is now available.
• In several cases, the Supreme Court has itself directed recording of evidence by video conferencing.
• However, the case was overruled later by the case of Santhini v. Vijaya Venkatesh

PROS OF VIDEO-CONFERENCING HEARINGS

Apart from the fact the measure was taken to combat a deadly virus and not delaying the delivery justice mechanism the ‘virtual court system’ was started. Its has proved to be beneficial in multi-fold manner:

• It’s a step which would avert overcrowding of courts, saving a lot of time and expenditure of judges, lawyers and public in general.
• Its cost effective in many ways, like, it saves expenses of travelling to courts, reduces carbon footprints, expenses of open courts and so on.
• Video-conferencing hearings have given a tremendous opportunity to justice system to hear and deliver justice in remote areas where travelling miles is a cumbersome issue.
• For the fact that we all know the Indian judiciary has a huge amount of pending cases but online hearings have proven highly effective to dispense hearings fast, hence, is time-saving.
•  If adopted, as a new norm would drastically reduce the thousands of transfer petitions which are a waste of the Supreme Court’s precious judicial time, and will also be cost effective from the parties’ perspective.
• It would also be ground breaking if witness evidence can be recorded through video conferencing. This is because, several times, it is observed that important witnesses refuse to give their statements as they fear getting entangled in court matters which require their presence on several dates. This means they have to remain absent from their work etc. Also, at times they fear for their security and refuse to give statement or evidence against someone, here, video-conferencing would be used when in serious cases where there is apprehension of danger to the life of the witness, evidence can be recorded from a remote location.
• Similarly, in those proceedings where confidentiality ought to be maintained, video conferencing can prove to be useful.

JUSTICE CHANDRACHUD, HIGHLIGHTED THE PROS OF VIDEO CONFERENCING in the Veni Nagam’s case and held that it was not outside the purview of the Family Courts Act. Some of his important observations were:

1. Appropriate deployment of technology facilitates access to justice. Modern technology is above all, a facilitator, enabler and leveller.
2. Video-conferencing is extensively used over the world (India being no exception) in online teaching, administration, meetings, negotiation, mediation and telemedicine among a myriad other use. Video conferencing reduces cost, time, carbon footprint and the like.
3. The Family Courts Act, 1984 envisages an active role for the court to foster settlements and also provides it the discretion to determine how to structure the process under Section 9 and 10(3). Moreover, the High Courts can frame rules under Section 9(1) and the Family Court may, subject to those rules, “follow such procedure as it deems fit”.
4. There may arise a variety of situations where in today's age and time, parties are unable to come face to face for counselling or can do so only at such expense, delay or hardship, which will defeat justice. It would be inappropriate to deprive the Family Court to adopt video-conferencing as a facilitative tool, where it is convenient and readily available.
5. Whether video-conferencing should be allowed must be determined on a case-to-case analysis to best effectuate the concern of providing just solutions.
6. Conceivably, there may be situations where parties (or one of the spouses) do not want to be in the same room as the other. In such circumstances, video conferencing can enable mediation to go on.

​​​CONS OF VIDEO-CONFERENCING HEARINGS

Despite having many advantages of online hearings a few issues have been flagged while operating through ‘Virtual Courts’. Some of them are:

• One of the most raised issue in today’s date is technical issues and glitches happening. In lack of proper infrastructure for the same courts have been experiencing a lot of hurdles since the beginning.
• Though there is devised a systemized way of getting urgent matters listed by Supreme Court, in several cases, the AoRs have been clueless of the status of their application for urgent hearing and they had to repeatedly call up the concerned officer and chase him in order to understand at what stage of processing their matter is stuck in and confirm whether documents have been on record or not.
• On 3 April, the proceedings were taken up through WhatsApp video call, after technical issues delayed the hearings by at least 30 minutes.
• The lawyers according to the guidelines issued are supposed to join the call 15 minutes through the link provided on WhatsApp before the court convenes and wait for their turn. Parties are logged out as soon as the hearing in their matter finishes. This makes some lawyers “anxious” about getting a call during the hearing, which would’ve disrupted the proceedings. Further, at times there have been complaints about generated links not working.
• Initially, the SC was issuing only one link per party, which meant either the AoR himself or the Senior Advocate could appear. However, subsequently, they have started issuing two links.
• Video-Conferencing does not allows the concept of “Open Court” and this takes the freedom of lawyers and interested parties to view all hearings or to join in only when their turn comes, making it an issue against “Public hearings fundamental to democracy”.
• Many AoRs have complained about the limit of 5MegaBytes (MB) to upload the petition and 2MB to upload any additional documents on the Supreme Court website is too less. In fact, there are cases, in order to get the matter listed urgently, have filed short petition and all other documents are filed later with an application for additional documents. In such circumstances, a limit of 2MB for additional documents becomes a huge issue as the file needs to be broken into several volumes.
• Apart from the above issues, Advocates have mentioned that when judges are discussing internally, the screen goes blank, leaving the advocates to wonder if their session has ended.

DEVELOPMENT SO FAR

After bringing all pros and cons in the light of the matter, it is important recognize the tremendous positive result of online hearing. Even Chief Justice of India, Sharad S. Bobde has shown keen interest towards virtual hearings to be gradually replicated during normal times for better implementation.

Recently, The Supreme Court decided to use technology more in judicial proceedings and directed that now court summons and notices can be served on persons through "emails, fax and instant messaging applications" like 'WhatsApp'. 

Till May1, Supreme Court has disposed off around 347 cases and delivered 57 judgements, this is 14 times more than the cases and judgements decided and delivered by US Supreme court.

Chhattisgarh’s E-Lok Adalat itself has disposed 2.270 cases and cumulative settlement of Rs. 43 crores.

The work is in progress for developing better application for handling entire process at one place and resolving above mentioned issues.

CONCLUSION

Thus, the “virtual court system” although having some issues has its major advantages including bringing greater professionalism into the proceedings, since the submissions have to be succinct and to-the-point, enabling remote participation, ensuring the speedy disposal of cases where the decision is largely based on written submissions, and saving time and effort for litigants and witnesses who are out of station.

Also, in support of the same it could be said that even before virtual courts, public’s presence at court was regulated in order to avoid overcrowding and minimise security threats as against the argument of denying public hearing equates to denying democracy.

Thus, to make judicial system stronger the step taken should not averted in future, eventually flaws could be restored and it can be become the new normal.

• [1]1967 AIR, 1 1966 SCR (3) 744
• [2]2003 4 SCC 601
• [3] 2017 (3) SCALE 471