Virtual Courts: A Reform in Indian Judiciary

Sakshi Sharma

What are virtual courts?

•  Virtual Courts is a concept aimed at eliminating the presence of litigants or lawyers in the court and adjudication of the case online.
• An e-court or Electronic Court means a location in which matters of law are adjudicated upon, in the presence of qualified Judge(s) and which has a well-developed technical infrastructure.
• The e-courts are different from the computerized courts which have been in place since the 1990s.
• The working of e-courts requires an online environment and an Information and Communication Technology (ICT) enabled infrastructure.
• Litigants can file the plaint electronically through e-Filing and also pay the Court Fees or Fine online through.

Though virtual courts are the very convenient option in the metropolitan cities but are they legal?  As the covid-19 is at its peak and there is a huge extension on the number of corona cases and increases in the work from home culture. As the result Supreme Court issued directions for all the lower courts across the country to extensively use video conferencing for judicial proceedings. This will not only reduce the costs but will also lead to speedy disposal of cases. On 4^th of July, 2020 the supreme court through India legal bureau stated “In order to contain the spread of Corona virus (COVID-19), considering the prevailing situation, and taking into account the suggestions received from various quarters and the guidelines issued by the Government of India and Government of NCT of Delhi from time to time, Hon’ble the Chief Justice of India has been pleased to direct the constitution of the Hon’ble Bench(es) for hearing of matters through Virtual Courts  w.e.f. 06.07.2020.”

The supreme court exercised its plenary power under Article142 to direct all high courts to frame a mechanism for the use of technology during the pandemic. District Courts in every state shall adopt VC technologies prescribed by the appropriate High Court. Courts shall make VC facilities available for those litigants who do not have access to these facilities, including by appointment of advocates as “amicus curiae” and making VC facilities available to such advocates (if necessary). Till such time as the High Courts frame rules in this regard, VC technologies shall primarily be used for hearing arguments, both, at the trial as well as appellate stages. However, evidence shall not be recorded using VC facilities except with the parties’ mutual consent.

The directions shall remain in force till such time as further orders are passed by the Supreme Court. On 7 April 2020, the High Court of Telangana passed directions for conduct of hearings via video-conferencing in the state during the period of COVID-19 lockdown². It is expected that other High Courts as well as tribunals will adopt similar measures in the coming days. Separately, on 8 April 2020, the Bombay High Court issued special directions in connection with live-streaming of matters listed for hearing on 9 April 2020 before His Lordship the Hon’ble Mr Justice G S Patel³.

Previously, the Kerala High Court had live-streamed its hearings for the general public via Zoom App. The Supreme Court is also moving towards technological advancement for its functioning and is conducting hearings through video conferencing since March25, to maintain social distancing. The Supreme Court held its first Constitution bench sitting through videoconferencing on 14 July, 2020. A bench of justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose appeared wearing masks and maintaining nearly two-feet distance between them on the bench. The first case that was heard by the five-judge bench was a legal tussle on whether Centre or states have the power to provide reservation to in-service candidates in post-graduate medical degree courses. The plea was brought up by Tamil Nadu Medical Officers Association.

E-Courts Project

• The e-Courts Project was conceptualized on the basis of the “National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary – 2005”submitted by e-Committee, Supreme Court of India with a vision to transform the Indian Judiciary by ICT enablement of Courts.
• E-committee is a body constituted by the Government of India in pursuance of a proposal received from Hon’ble the Chief Justice of India to constitute an e-Committee to assist him in formulating a National policy on computerization of Indian Judiciary and advice on technological communication and management related changes.
• The e-Courts Mission Mode Project, is a Pan-India Project, monitored and funded by Department of Justice, Ministry of Law and Justice, Government of India for the District Courts across the country.

Need for virtual courts

• The pendency of cases in various courts in India are staggering .In India more than 3,00,00,000 cases are pending
• The economic survey of 2019-2020 dedicates a chapter to pendency of tax cases and revenue cases.
• Online dispute resolution (ODR) offers a way to deliver affordable access to justice, (and in these times safer access), and can remove barriers like geographical isolation and lack of transport options or mobility.
• Adoption of new technology by Courts offers new opportunities for resolving disputes – from simple email to video conferencing, instant messaging and in recent times the advent of purpose-built online systems that incorporate artificial intelligence to create a computerized  “mediator” who uses big data to make better decisions
• Some of these AI systems offer fully automated cyber negotiation which primarily focuses upon negotiating monetary settlements and providing a neutral platform to exchange settlement offers without the involvement of, or need for, a mediator.
• Thousands of Indians cannot afford to go courts as legal costs are high and legal procedures are complicated
• Cases are often adjourned due to various reasons.

While there are clear safety and time-saving advantages offered by ODR(online dispute resolution), there are several risks and challenges to be considered:

• There are lot of glitches and shortcomings in its execution.

• Risks to confidentiality when using third party applications.
• An inability for technology to handle the varying complexity of legal cases.
• Difficulty for the advocate, arbiter and mediator in building rapport with parties
• Drawbacks of not appearing in person, including less fluid discussions, less engagement or strategic discussion of issues, more difficulty in reading body language
• Absences of human insight and empathy
• Disadvantages for those who are not tech-savvy
• Lack of accountability, regulation and guidelines
• The potential for algorithmic bias

Conclusion

In virtual court proceedings the internet would play a vital role. It requires an extensive accessibility to internet and a good internet speed does matter a lot. The metropolitan cities like Bangalore, Mumbai and Delhi, which have continuous access to internet, might have persons who would be able to avail of virtual court services; there is vast majority of citizens who would continue to suffer due to lack of basic infrastructure.  Only 34.45% people In India has accessibility to internet which remains 65% of non internet users. To participate in online proceedings, required minimum speed is 2mbps/sec & this speed is available only with 4G. Since a country like India majority of population lives in rural areas & is still underprivileged, as far as accessibility of internet is concerned virtual court would be a bold attempt.