The dispensation of justice is a human venture made up of laws, ethics, morality, wisdom and empathy. The absence of either of these five ingredients, short-changed by definitive virtual situations, would render the exercise of justice only partially satisfactory and completely unjust
The world-wide outbreak of COVID-19 has not only created a havoc in peoples’ life across the globe but has also profoundly affected and changed the way how countries and communities conduct their routine life and businesses. Since the spready of the novel corona virus, usage of masks, sanitizers and maintaining social distancing has not only become mandatory but has pretty much become a way of life.
It is very well said that ‘change is the measure of time’ and this ongoing pandemic has compelled the government to suspend the work, movement, business, services, liberty, etc. but none-the-less has also dragged all businesses, corporate and government offices as well as the legal fraternity further into the 21st century. In these difficult times the world has tried its best to adapt to this new situation and economic activities in the corporate world are being carried out from home by conducting meetings through online platforms and conferences replaced by webinars.
Even though the physical working of courts has been stopped, the Supreme Court has passed suo moto order under which ‘Parameters for functioning of the court through video conferencing’ during ‘lockdown’ was mentioned. The Apex court, all high courts and district courts have adopted a robust mechanism for filing as well as hearing important matters pertaining to the life and liberty of people by using virtual court rooms.
The government has though strongly pitched for virtual courts and popularly believes, digitisation shall serve as an answer to all the problems of governance stating that justice through such a platform is cheaper and quicker. Further, addressing locational and economic handicaps, it is said that digital justice would ensure safety of vulnerable witnesses providing testimony, accelerates processes and procedures and are an improvement over traditional courts as they are cost and citizen friendly and provide wider access to justice. However, issues related to advanced digital technology solutions require careful analysis and an examination of both laws and existing systems before they are introduced.
OPEN COURT SYSTEM
“Open court” as defined in the Black’s Law Dictionary is a court to which the public has a right to be admitted to. The principle of ‘open court system’ has also been enshrined under various statutes including our constitution. Article 19 that guarantees freedom of speech and expression also protects the scope of activities such as attending trials by public and media personnel. The confidence of public in the judiciary is of utmost importance and thus open court system, creates this confidence in people by providing fairness, objectivity and impartiality in the process of administration of justice. It is only in limited cases as prescribed by law that the court does not have the power of to conduct Open Court. The Supreme Court of India has reaffirmed the principle and significance of open court system in the following judgements.
In Naresh Shridhar Vs State of Maharashtra  the court held that Public trial in open court is undoubtedly essential for the healthy and impartial administration of justice. In the recent case of Swapnil Tripathi v. Supreme Court of India , 2018 also the court while hearing of live streaming of its proceeding held that that access to justice cannot be complete without the parties being able to see, hear and understand the discussions in the proceedings. The Court acknowledged that the principle of open court hearings should be followed when Rules for live streaming of court proceedings are formulated.
Therefore, it is not wrong to say that public scrutiny naturally acts as a check against malicious judicial practices. During the ongoing pandemic, even though, the courts in our country are still open to the public, trying to provide justice to the aggrieved persons and trying to implement the principle of open court hearings even under the present difficult times in extremely urgent matters, there are many questions that arise with regards to the administration of fair trial in these online court proceedings conducted via video conferencing.
The major concerns are that whether the hearings in online court rooms with access being given to Journalists in crucial matters would fulfil the requirements of the principle of open court proceedings or whether open court hearings mandatorily mean hearing in physically open and traditional courts? Also, whether broadcasting important proceedings only from virtual courts would suffice the tenets of the principle of open court or would it require the telecasting of all matters being entertained in virtual courts?
It is a fact that adoption of technological advancements and innovations have made everyone’s lives easy. It can be very well utilized by the courts for its efficient management to reduce pendency of cases and quicker disposal of cases. However, the usage of video conferencing technology in court hearings must be restricted to the present situation of crisis only. The virtual court rooms cannot in no way overtake or replace the open court proceedings system of administering justice to its citizens. The lack of proper infrastructure and inadequacies of the virtual court system has been encountered by everyone who have appeared before virtual courts and problems faced by lawyers have been widely reported.
LACUNE OF VIRTUAL COURTS
Accessibility to justice as promised under article 39(a) requires proper functioning of legal system. However, virtual hearing makes it difficult to ensure the same as our country not only fall short of the need for infrastructural development but also due to the prevalent digital illiteracy. The present virtual system has not been a complete success as it did not fully serve the ends of justice.
Only a small portion of population can afford and has access to the internet. There is a wide digital divide because of which large percentage of population does not have access to justice through virtual court proceedings.
False witness and evidence
Cross examination of witnesses plays a significant role in unfurling the truth with the help of body language, gestures, face expressions, which cannot be figured out over the internet and thereby the possibility of having false testification increases.
The probability of fraud identity also increases with the conduct of online proceedings. According to the set process of traditional court a litigant has to provide proofs for their as well as their client’s identity. But, in the virtual courts because of lack of human supervision identity theft might increase.
Apart from the technical internet glitches and connectivity issues which adds more complications to the working of the courts, there are various other problems that the member of legal fraternity is facing due the operation of virtual courts i.e.
No proper management by the Registry in case of virtual proceedings;
No active response to the calls by the dealing officers when required;
Dismissal of mentioning of urgent matters by mentioning bench without giving any valid reason;
Loss of livelihood of many young practitioners as being unable to meet daily expenses;
Various matters pertaining to life and liberty, including bail, requiring immediate and effective attention go unheard, creating helpless situation for the concerned parties and lawyers involved.
It is rightly said that, justice must prevail in the toughest times. These trying times of the pandemic have not only put the judiciary under a difficult situation but have also given an opportunity to improvise the shortcomings in the judicial and legal system, to innovate in terms of technological advancements and analyse the prevailing practices of court that could be utilised in a better manner. The internet has helped us in many ways such as in decreasing paper consumption, time consumption, the work load, categorizing the cases, e-filing of procedure and systems, et. But it is also important to realise that technologies alone do not improve the system, but the people working on it do and that human interaction and conventional court rooms should never be replaced by virtual courts.
1967 AIR, 1 1966 SCR (3) 744
writ petition (civil) no. 1232 of 2017
‘Virtual courts- the new norm?’ http://www.legalserviceindia.com/consult/advice.htm accessed on 14th January, 2021; 4:56 pm
https://vcourts.gov.in/virtualcourt/ accessed on 14th January, 2021; 10:25pm
‘Virtual courts- can it replace open court hearings?’ https://www.indialegallive.com/top-news-of-the-day/news/virtual-courts-can-itreplace-open-court-hearings/ accessed on 15th January, 2021; 2:49pm