Written by Indiradevi Kollipara
Associate Editor at Law & Order
Third Year, BA. LLB. School of Law, Christ (Deemed to be University) Bengaluru
Source: The Hindu
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
Virtual Court hearings have encompassed the Indian legal system due to the strict lockdown measures imposed by the Government of India to tackle COVID-19. On 6th April 2020, the Supreme Court had given a judgment to ascertain the establishment of a virtual court hearing system. This judgment was backed with principles held in precedents dating back from 2003, starting with the Praful Desai case wherein the Supreme Court while interpreting the meaning of ‘Evidence’ held that video conferencing is included as a matter of ‘procedure established by law’.
Access to justice as defined in the Virtual Court Guidelines Judgement is indeed a major facet within the realm of Rule of Law and hence the crux of proceedings cannot be denied in situations of uncertainty.
Recently, in a webinar conducted by NALSAR, Justice D.Y Chandrachud (also the head of the Supreme Court e-committee) mentioned that a platform for enabling live streaming of cases online is under the process of development. This shows that the judgment held in Swapnil Tripathi v. Supreme Court of India is being implemented to an extent. These series of events are intriguing considering how the application on effectuating the judgment of Swapnil Tripathi  was disposed off. In addition to this, the e-filing of cases have started from May 16th, and YouTube webinars for the same have been made accessible to legal professionals. This has extended the arms of accessibility to an extent. Physical filings of cases had to be restricted considering the uncertainty of the ongoing pandemic. The plans set through the National e-Governance Plan (NeGP) are finally being set to motion and the goals of digital governance are eventually becoming a reality. However, with new changes, there is an impending series of events that have raised the questions of constitutionality. Even when the cases are being filed, only cases of ‘emergency’ are being posted to the respective benches and are eventually being heard in virtual proceedings. Even when the guidelines have provided for posting of cases that are still in the trial stage, a report states that cases wherein the witnesses are abroad and bail cases (when the accused is at jail) are mostly taken up by the courts. Looking through the alarming rates in the pendency of cases, the selective hearings of the courts have raised questions.
The scope of virtual court hearings must be widely discussed as the Judiciary must engage in preparedness to uncertainty considering the ongoing trends. Access to Internet, as discussed in the Anuradha Bhasin case is a principle that needs further development. This is because the case has only given emphasis to freedom of speech and expression enshrined under Art. 19 , highlighting the right to engage in their occupation or profession. The effectuation of this case has been stalled due to the restrictions imposed in the Union Territory of Jammu and Kashmir. This means that e-filing of cases from that region is almost impossible. Furthermore, Art. 39A that provides for free legal aid to the poor, has also been stalled and it is unlikely for the majority of the poor to get access to the means of the internet. Essential services as defined under the Essential Services Maintenance Act of 1980 are being relegated to citizens during the lockdown. Looking through the importance of remedy through the judiciary and accessibility of justice in the eyes of Rule of Law, there is a need to extend the meaning of essential service by including internet service. This will furthermore revolutionize the court system as well. Furthermore, this article also emphasises on how the open court system will uphold fairness and transparency and extend the meaning of access to justice in a larger fold. The developmental trajectory of the virtual court system through video conferencing can be compared to the virtual court system in the UK, US, Australia and China.
The virtual court system in India has truly brought in several challenges with the impending pandemic. Some cases are not being heard and are constantly being posted in extended dates, hearing of the pleas are uncertain and hence it is suffice to say that justice is being subjective in various fronts.
As of November 2020, physical courts are not open and the justice system is mostly operated through the virtual court system. Furthermore, it is established and confirmed by the Chief Justice that the virtual courts are meant to stay and not dissipate into oblivion if physical courts open. This was further confirmed by the parliamentary standing committee in its recent report. However these proceedings are subject to various challenges due to the established mandate of procedure provided under the Constitution. Art. 145(4) of the Indian Constitution provides that the Supreme Court can give a judgement only in an open court. The term ‘open court’ is defined as the court wherein the public has the right to be admitted. This concept can be mostly elaborated through the lens of rule of law. This aspect is indispensable as the status quo is bound to be questioned if the system does not adhere to the principles of the Rule of Law.
Understanding the paradigms of Access to Justice through Rule of Law
The notion of equality before the law is very important in the context of rule of law. Every citizen is bound to receive the access to judicial machinery to achieve justice. This was even affirmed in the Guidelines for Video Conferencing Judgement given by the Supreme Court. The concept of open courts becomes more relevant in the context of ascertaining the reliability of virtual proceedings to promote justice. It is indeed undeniable to affirm that virtual proceedings have denounced the void of alternatives to the justice mechanism in a time where stepping out is a problem in itself. However, the demarcation arises due to the fact that cases that are considered as an ‘emergency’ are taken into cognizance by the court. Even when cases like Praful Desai have established the requirement of court presence for producing evidence and recording evidence in the court, the case does not mandate the recording of evidence in the Virtual setting due to a natural disaster. The pandemic is recognised as a natural disaster as defined under the Disaster Management Act.
In May 2020, the e-courts committee inaugurated the virtual courts website to handle cases on traffic issues, wherein violators will get updates, i.e, notice of violation via their phone and cases will be dealt solely online and has started in a few states. This shows disparity between the goals and reality to a great extent. It’s a good start, yet we have a long way to go with respect to handling various other aspects.With the rise of awareness of virtual courts, Online Dispute Resolution has become a buzzword amongst the legal fraternity and to various people across the country. Recently, Niti Aayog held a meeting seeking access to a viable model to integrate online dispute resolution regulation across the country that would garner access and deliver ease to the general public.
Existence of Physical and Virtual Proceedings and its Implications
The present challenge with regard to the virtual proceeding is the element of uncertainty in terms of resources and the listing of cases. It is very pertinent to note that not every person who is bound to be part of the ‘urgent’ proceedings have access to the resources required to attend the virtual hearings on a long-term basis. Although, the pandemic has completely changed the course of justice mechanism; very few cases are being taken. The reasoning behind this restriction has various complications and the nature of cases. It is very arbitrary to take in cases that are only urgent in nature as opposed to facilitating court mechanisms that could enable the disposal of cases that could be tried in ease and it could reduce the rate of pendency of cases. Although this is a far-fetched dream. It is indeed a problem. This urgency mandate is only limited to cases that lie in the Apex Courts and the high courts and not otherwise. This means that the pendency of cases in subordinate courts are not really dealt with. This is indeed an impending challenge that will show repercussions in the coming years. As of now we are not sure as to whether 40 cases are being heard or the original 20 which was decided prior.
It is indeed a challenge to even make virtual proceedings streamline in the judicial continuum. This is because the virtual platforms may have shown a ray of hope to make dispute resolution effective and easier, but the intricacies and the requirements of an open court will always be hanging above the minds of many people in the legal fraternity.
Making open courts online will indeed be challenging as the fallacies of mute and unmute will always be a harbinger to disturbing the court proceedings. In places wherein, access to the internet is still a question like for instance in the Union territory of Jammu and Kashmir, we still have questions on the right to life that should be extensively answered by the court considering how we are relying on the internet as an indispensable source to sustain livelihoods.
This goes on to show that the trends are promising to make our country adapt to changing times but these changes are happening at a slower rate. It is alarming to see that the pending cases have not reduced even till date. If virtual courts are going to change our country to a great extent; then where are the notices and circulars mandating the working of physical and virtual courts alongside. It is high time that cases that are ‘non-urgent’ get a space in receiving the services of the justice machinery.
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