COVID 19 AND VIRTUAL COURTS PROS AND CONS

What is real court room.

In a court room you enter. Many senior counsels there and other lawyers. Big bag of papers and Judgments, all interns and juniors listen to arguments and  cross examination of witness. Judge is recording evidence defense lawyer says My Lord real witness is entering court room and everyone look at the entrance of court room. This we have seen in Hindi Films. Drama, suspense and action. New generation must see Mamta movie where Court room set up is shown.

If you want to see how Jury functions, than you must see Nanavati Murder case of Akshay Kumar. But this was prior to covid19. We are now on virtual courts and post covid consequences.

We are heading toward virtual courts. Like e-market, e-schools the Judiciary is taking new avatar Justice on line. Many firms are now advising online and even Mediation carried out online.

But in India in May 2017 then CJI Justice Kehar inaugurated Integrated Management System to go Apex Court paperless. An Integrated Management System (IMS) integrates all of an organization’s systems and processes into one complete framework, enabling an organization to work as a single unit with unified objectives. Covid a pandemic has changed life. Whether its temporary or long tenure time will say but in the current scenario facility is provided for Litigants to file the plaint electronically through e-Filing and also pay the Court Fees or Fine online through https://vcourts.gov.in  Litigant can view the status of the case also online through various channels created for service delivery. However for adjudication purpose the Litigant may have to appear in person or through the Lawyer in the Court. Virtual Court is a concept aimed at eliminating presence of litigant or lawyer in the court and adjudication of the case online.

Due to lock down, Apex Court started Virtual Courts and hearings are conducted orders are also passed. Advantage of Virtual Courts are :

  1. Less of paper work and environment friendly;
  2. Witness in Dubai , London via video conferencing can depose ;
  3. It saves travelling time;
  4. Litigant of Bangalore need not travel to Mumbai or Delhi and can remain present via video conferencing ;
  5. Cost effective;
  6. Electronic documents have changed the world;
  7. Social media  has changed traditional working of lawyer;
  8. Company Courts in Bombay High Court had started digital filing in 2012-2013;
  9. Economic and easy to appear and remain present
  10. poor litigants will suffer

Examples of virtual hearing

Best example of virtual hearing first of its kind was of Kasab 26/11 terror accused in Bombay High Court.

In an Arbitration matter I have done examination of witness in Dubai in an Arbitration matter as he was unable to come. It saved his 3 working days and cross examination was over in one day. So, time and cost of accommodation and traveling was saved.

Disadvantages of Virtual Courts:

  1. Its against principles of Trial in open court is undoubtedly essential for the healthy, objective, and fair administration of justice.
  2. One of the fundamental principles of natural justice, ‘Open Court’ is found 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.
  3. The Open Court principle finds its origins as old as in  1215 Magna Carta.
  4. Technical Issues: All lawyers are not well equipped. It will result in monopoly and majority work in the hands of few. Internet accessibility is continuous in metro cities and not internal magistrate courts.
  5. Cross Examination in person has more opportunity for courts to assess witness;
  6. Threat of Identity theft and validity of documentary evidence;
  7. Cyber Crime Hacking of system and data theft;
  8. Loss to hospitality sector and transport business;
  9. It will have major impact on Real Estate market. Rental business as well as rates will certainly be affected. In Mumbai after shifting of wholesale market and online stock exchange rental value is still higher  because of demand of commercial place by Lawyers.

International implementation of Virtual Courts:

Almost 23 countries like the USA, the UK and France have started virtual courts. Whether it will be permanent or just during pandemic is the issue that will be decided with passage of time.

Supreme Court  said many nations have been using the virtual courts system but India has been ahead in terms of the output. “Information available on court and other judicial websites would indicate that in nations that are hit hard by the COVID-19 pandemic like the USA, UK, EU, France, Italy, Germany, China, Canada, Australia, Singapore etc, judicial organs of the state carrying out administration of justice are mostly relying on virtual court methodologies and online case-management in place in their respective jurisdictions.

Researchers at the University of Surrey produced a detailed evaluation of the use of virtual hearings.

The Sussex Police and Crime Commissioner, asked the University of Surrey to conduct an extensive independent evaluation of a new booking tool for use in organising first appearance remand hearings held by video

  • On evaluation it was found that the video court made it more challenging for defense advocates and other court professionals to assess defendant demeanor and also more difficult for defense advocates to build rapport with their clients.
  • While evaluation on disruption it was found that  disruptions were more common in video court this was more likely to be participant-caused than technology-caused.
  • The Final Report found that in relation to hearing outcomes, the rate of adjournments was higher in video court
  •  Evaluation found that overlapping speech was more prevalent in after-stage hearings, becoming more problematic in hearings with more than one remote participant, or when hearings were affected by issues with the quality of the audio and video in the courtroom.
  • You can read the entire Report on http://spccweb.thco.co.uk

International courts have also embraced the idea of broadcasting their court proceedings. The International Criminal Court (ICC) permits televising of its cases, although with a thirty-minute delay. The ICC has a YouTube channel where it broadcasts case proceedings, press conferences, and informative videos in different languages. In the European Court on Human Rights (ECHR), all hearings are permitted to be made public, unless specifically barred. Available at official website: http://www.tvjustica.jus.br/index/conheca 100 Supra note 62.

In 2002, the President of Brazil sanctioned a law enabling the creation of a public television channel dedicated to the judiciary and to the Supreme Court. The court sessions of the Supreme Court (Supremo Tribunal Federal) are broadcast online on either ‘TV Justica’ or ‘Radio Justica’ and operated by the Supreme Court. Besides  from being aired on television and radio, the proceedings can also be streamed online as the Court maintains a Twitter account  and a YouTube channel. The unique feature of the Brazilian Supreme Court is that cameras are permitted into the conferences where the judges deliberate.

The US Supreme Court does not permit video recording or photography of its proceedings. It releases audio transcripts of the oral arguments on the same day. Audio recordings of each week’s oral arguments are released on the court’s website at the end of the week.

Live telecast of Court hearings: Public trial in open court.

Along with virtual Courts another important point is live streaming of court hearings. This issue was answered in affirmative by Supreme Court in Swapnil Tripathi vs Supreme Court of India much prior to Covid19 in September 2018.

It was held that ,” For lawyers and judges familiar with the cocoon of a physical court room, live-streaming would require attitudinal changes. They include the maintenance of order and sequencing of oral arguments. Judges in charge of their courts would have to devote attention to case management. But these demands are necessary incidents of the challenges of our time. Slow as we have been to adapt to the complexities of our age, it is nonetheless necessary for the judiciary to move apace with technology. By embracing technology, we would only promote a greater degree of confidence in the judicial process. Hence, the Chief Justices of the High Courts should be commended to consider the adoption of live-streaming both in the High Courts and in the district judiciaries in phases, commensurate with available resources and technical support”

In its landmark judgment of The NDPP v Media 24 Limited & others and HC Van Breda v Media 24 Limited & others, the Supreme Court allowed for broadcast of proceedings in criminal trials, holding that courts should not restrict the nature and scope of broadcast of court proceedings unless prejudice was demonstrable and there was a risk that such prejudice would occur. While refraining from laying down rigid rules on broadcast of such court proceedings, the Court set out general guidelines to assist in determining whether proceedings should be broadcast.

The first of such live streaming of court hearing was from Calcutta High Court

The woman had moved the court seeking an order permitting her children to enter the Fire Temple, the Zoroastrian community’s place of worship, which they were not being allowed to as she had married outside the community.

There would be no coverage of:

· Communications between counsel and client or co- counsel;

· Bench discussions;

· In-camera hearings.

What is future planning of our Judiciary to promote Virtual Courts?

On 1st June ,2020 three Judges of Supreme Court enter Court room with laptop and heard the matters. This was news was on front page of the news papers.

The Chief Justice also expressed his opinion that there cannot be a complete shutdown of the Courts in view of the recent Coronavirus outbreak, particularly since virtual courts were on the verge of commencement.

It  was decided that members of the bar have to be prepared to accept, encourage and promote e-filing and video conferencing, which is to commence shortly.

E-committee of Supreme Court has further assured that ‘people to people’ contact will be reduced by introducing court proceedings via video conference, separate rooms for the counsel for each party will be made available.

It was added that a lawyer has to only download a simple application and activate court proceedings via video conference.

Smart televisions are to be installed in the press lounge for the convenience of the journalists and e-filings can be done at any time of the day (24/7). The court proceedings and filing procedures will soon go digital and paperless, it was stated.

As far as India is concerned  sudden outbreak of pandemic forced the Supreme Court and other High Courts  to hear matters via virtual court hearings. The idea being  to ensure the safety of lawyers, litigants and media personnel, however  virtual court hearings will not replace or be a substitute to physical courts, Justice Chandrachud made it clear at a webinar organized by Nyaya Forum of National Academy of Legal Studies and Research, Hyderabad on the topic ‘Future of Virtual Courts and Access to Justice in India’.

So ultimately e future of our country will be decisive in coining and aligning the gap between Actual and Virtual Court Rooms and may be it would be the best for rendering speedy and balanced Justice to the society at large.

Shruti Desai

9th June,2020

Leave a Reply

Your email address will not be published. Required fields are marked *