by Shreyash Mittal 18 April 2020
Today, the world’s biggest democracy is witnessing total lockdown in the country to prevent the transmission of COVID-19 amongst its masses.
The Judiciary, being one of the pillars of democracy, has responded immediately in these unprecedented times and The Supreme Court of India has adopted measures of video conferencing to hear the matters under Article 142 of the Constitution of India while also duly complying with social distancing norms. The Court vide order datedApril 4th issued guidelines for court functioning through video conferencing during COVID-19 pandemic, states that “The challenges occasioned by the outbreak of COVID-19 have to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it.”
Since the regular affairs of the court are suspended due to coronavirus, only urgent matters will be taken up by the courts as of now. Thus, to facilitate the hearings in the matters, it has notified the use of Vidyo app though apps like Skype, Zoom has also been used by the Court. Many High Courts like Kerala High Court, Bombay High Court, and Karnataka High Court, etc. have followed the way so that justice can be ensured even in these tough times.
In this article, I intend to discuss some aspects of the virtual justice delivery system including the challenges involved in it and how it can prove to be fruitful for the people even after the passing of this pandemic.
Access to justice and the rule of law is the foundation stone of the Indian Constitution. To ensure both these facets in these challenging times, such a decision of justice dispensation through video conferencing was indispensable. In furtherance to it, IT infrastructure facilities have been set up in the courts to support video conferencing amongst clients and their legal representatives. In addition to this, the facility of e-filing is open 24*7 for the justice seekers.
Since, the IT infrastructure in most district courts is not fulfilling at present or they do not have requisite machines and types of equipment to conduct the video conferencing process, the Apex court has asked to make necessary arrangements in the district courts pertaining to video conferencing, etc. and prescribed that in case if any party does not have means to access video conferencing, such a facility should be made available or otherwise amicus curie can also be appointed.
Many people from legal fraternity have welcomed the decision and the speculations are being made that these temporary arrangements would pave way for the permanency of functioning of virtual courts in India.
It is to be noted however that there are many countries like the USA, Australia, and China who are already indulged in dispensation on justice to people virtually. In the United Kingdom, it is governed by The Access to Justice Act, 1999 wherein bail, hearing any witness and criminal remand, etc. can be performed through video conferencing. Moreover, they have also brought The Coronavirus Act, 2020 which shall further facilitate the process. In the same way having technology driven virtual courts will also help India further provide timely and speedy justice to its people.
The Hon’ble Justice(Retd.) B. N. Srikrishna, Supreme Court of India said- “Remote working is a tried and tested model for arbitrations, and courts can adopt it very easily. Hiccups are only a mindset problem. Article 141/ 142 can be used for this to be effected in a timely manner.” It is argued that the fact that arbitration tribunals have largely been successful in conducting virtual proceeding further strengthens the contention of having virtual courts which can function affluently and smoothly. Moreover, the function of virtual courts will also lead to convenience to the parties involved in the matter in addition to other economic benefits arising from it like transportation, infrastructure, etc.
However, while keeping these points in mind, there are certain preconditions which are required to be addressed; those requirements are broadly mentioned as follows:
The Hon’ble Court in Naresh Shridhar Mirajkar vs. State of Maharashtra reinstated the necessity and significance of open court principle which stands for the presumption of the right of the public to watch the court proceedings including media under Article 19 of the Constitution. However, in the recent Apex court’s verdicts through video conferencing, the essential aspect of the open court was missing which in my humble opinion shall not be encouraged.
Moreover, it has been felt that virtual courts might be useful in the pre-trial stage in a case but after the trial starts, the difficulty may arise on several aspects like in the cross-examination of a person, presentation of documents and/or pieces of evidence, statement of parties on oath, etc., all these factors forms essentials part in the court proceedings and depending upon which any conclusion is drawn in that matter by the courts. Whether all these hindrances and practical difficulties can be resolved in the virtual courts is still a big question before administration. Further question as to technical glitches, issues relating to internet connectivity, network and its speed are also required to be addressed.
Every person in India has the right to access to justice. The stair of online delivery of justice is indeed a welcome step, however, ensuring the transparency and to do away with other hindrances as stated, the requirement for open court, evidence submission, confidentiality, etc. is of paramount importance. The idea of online courts can be successful after addressing all the complications and issues associated with it and that too from the Indian perspective given that a big section of rural society does not have the access to proper internet connection, amongst other factors. Therefore, on these lines, a robust mechanism should be prepared and introduced by following the due process and that might also help India to clear the vast backlog of cases pending in the Indian courts.