Virtual courts, an opportunity to overhaul the system

The Covid-19 pandemic threw unprecedented challenges at the courts as they sought to remain functional for litigants. The courts adopted virtual hearings to cope with the situation, in view of the need to maintain social distancing and contain the spread of the virus. However, after the easing of restrictions, there are still demands from a section of lawyers as well as litigants to maintain the option of hybrid hearings even as Bar leaders have called for fully functional physical courts.

When the lockdown was announced in March 2020, the Supreme Court, being the guarantor of the fundamental rights of citizens against State actions, took a suo motu decision and announced virtual hearings in its court. Some days earlier, it had restricted the entry of lawyers and decided to take up urgent matters only. Subsequently, the top court also asked the High Courts across the country to follow suit and ensure similar arrangements in subordinate courts. On April 6, 2020, it passed the judicial orders under Article 142 of the Constitution. A standard operating procedure was issued for the purpose. Some of the High Courts, such as Kerala and Gujarat, went a step ahead by opening the virtual hearings to the common people. The live-streaming in the Supreme Court, on the other hand, has remained accessible only to a limited number of people, including journalists.

More than a year later, the Supreme Court has resumed physical courts on a limited scale. At the same time, it has given the option to lawyers to select hybrid hearings, amid repeated demands by Bar leaders to allow full physical functioning of courts.

Even before the pandemic, there were sporadic voices asking the courts to let people across the country to watch their proceedings online, if not in all cases then at least in matters of national importance.

It was a law student, Swapnil Tripathi, and others, including eminent senior advocate Indira Jaising who first broached the idea of live-streaming of court proceedings. Acting on their petitions, the Supreme Court had in 2018, much before the pandemic, ruled that initially a pilot project may be started by live-streaming cases that are of constitutional and national importance, and excluding those involving juveniles, marital and sexual assault cases to protect identities.

However, thereafter, the clamour to live-stream cases did not elicit any positive response. The onset of the Covid-19 pandemic heralded a new era with the courts adopting technology to let counsels argue their cases remotely. This can certainly be seen as a baby step towards implementation of the 2018 judgement. The pandemic situation showed that if the courts want, live-streaming of cases is very much possible. During this period, no doubt, initially, only urgent matters were taken up, leading to a concerning rise in overall pendency.

According to the latest data, as on November 8, 2021, the Supreme Court had the highest-ever pending cases -- 70,038. Of these, 14,368 matters are not ready for hearing. Such a huge backlog can only be ascribed to the pandemic-related lockdowns.

A Parliamentary panel last year strongly favoured virtual courts. It noted that ‘digital justice’ is cheaper and faster. Besides, such courts address locational and economic handicaps, ensure safety of vulnerable witnesses providing testimony, expedite processes and procedures, and are an improvement over traditional courts as they are most affordable, citizen-friendly and offer greater access to justice.

However, the shortcomings of virtual courts in the form of limitations of access, connectivity, digital divide and skills posed a serious challenge. The panel also found that over 50% of advocates, mostly at the district and lower courts, either do not have a computer or lack the skills required for virtual proceedings. The committee thus asked the government to enable the necessary infrastructure for integrating such courts into the country's legal ecosystem.

Experts feel that virtual hearings, though thrust upon the country by the pandemic, should be institutionalised. They can continue even under normal circumstances. Technology, having emerged as a game-changer, advocates would be required to use technological skills along with their specialised legal knowledge to keep pace with the changing times.

Access to justice has definitely acquired a new dimension. People, particularly litigants, are able to access the highest court from the remote corners of the country. Once institutionalised, it is expected to reduce the cost of litigation and enhance the reach of the court.

It can also be seen as the best opportunity to overhaul the system. A paradigm shift for the future -- and not only during an emergency -- would require doing away with the requirement of physical presence unless absolutely necessary and with petitions running into hundreds and thousands of pages. A substantial number of cases can be resolved through mediation and videoconferencing.

Rules can be amended for the courts to allow the accused to appear and at least for the formal witnesses to be examined through video conferencing, saving a lot of time and wasteful expenditure. Bulky documents can be uploaded for the perusal of judges. Lawyers will have to adapt to the new regime. To ensure secure, standard and functional virtual courts at all levels is a complex task, yet it must be accomplished in view of the times we live in, experts feel.

Speaking at the valedictory of the two-day Constitution Day function, Chief Justice of India N V Ramana said, “Necessity is the mother of all inventions. The pandemic demanded us to transform the way we approach various issues. It has forced us to develop certain good practices which will support us in the days to come, although at a terrible cost."

"Whatever criticism or obstacle that we may encounter, our mission to render justice cannot stop," he added.