This Article has been authored by Syed Mohd Zaid, a fourth-year law student at JEMTEC School of Law, Noida.
“Wallet? Check. Keys? Check. Phone? Check. Mask? Oh! I forgot my mask.” The decade has been off to a start which changed how human beings interacted with each other, making us prepare for the “new normal”. India went under a stringent lockdown from the 24th of March. Due to this, multiple public sector forums experienced hardships, not just the healthcare sector. Since then, courts all around the country closed their doors for lawyers as well. But it is not in any way realistic to close courts in a country of 1.2 billion people for months. Just because physical doors of courts are closed should not invoke that the doors of justice should close alongside. There had to be a way out, and thanks to the advent of modern technology and increased connectivity of people virtual courts came about to be the ideal solution.
Innovation is an important aspect in all forms of life, but it does not necessarily mean that the innovation will always be a better form than the norm. An example that most readers would agree with could be found in novels and books. No matter how many audio books and e-books come up, the authenticity of a paper book cannot be replaced. Therefore when the virtual courts system was suggested by the Supreme Court vide notification on 23rd March as a way to conduct hearings; it was met with mixed reactions.
To come to the conclusion that virtual courts have no benefits at all would be most futile. When it comes to a pandemic wherein a highly contagious disease is on the loose, conducting court hearings virtually is a better choice than to not have the court in session at all. But it has its downfalls as well, and through this essay we shall be looking into where the virtual court system lacks, its shortcomings as well as the reasons why that it is not a suitable replacement for physical courts.
Development of e-Courts
Video conferencing emerged first as a precedent in the case of State of Maharashtra v. Praful Desai. The Apex Court in the instant case studied video conferencing as a means of recording evidence. The Supreme Court gave a green flag to video conferencing in the case and also commended the way it has developed as an advancement in technology.
The virtual courts system is not just limited to a laptop and video conference where an advocate and a judge simply show up. For such a system to work, there are a number of facilities that need to work alongside. Paperwork filing is a key aspect of litigation in India, but in the presence of virtual courts how is a lawyer supposed to show key documents of the matter? This is where the e-filing system of the Courts came in the picture. Alongside there are a number of court fees one must pay in order to get ahead with their case, therefore the e-payments system of the courts came out to be the solution.
Since 2005, a number of governments had put in their efforts to get the e-courts initiative in India, however they failed to allocate the funds and incentives for it. The “National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary” was brought forward in 2005 by the e-Committee of the Supreme Court. Then in the year 2007, in accordance with the National eGovernance Plan the “eCourts Project” was implemented. Since then there have been multifold steps taken in the right direction of digitization of the courts, but not without hindrances which have slowed down the process. In 2018, the Supreme Court’s e-Committee had designed and launched the e-payment and e-filing systems for cases in all High Courts and District Courts throughout the country. The e-Courts Project found a stronghold by providing the e-filing platform which decreases the weight on the physical hassle taken to visit courts to file a case. Through this portal cases can be filed in all High Courts and District Courts that have adopted the system. The system also enables the police to file e-charge sheets and other documents necessary for criminal cases. The user manual was published along with the website to help parties and their lawyers to file cases electronically. The e-filing system can be accessed by registering on the website. The manual states that there are three separate categories of registrations- as an advocate, as a petitioner in person and as an authorized representative of a police station.
Although both these platforms are new and still not available at all the courts throughout India, they are vital to the conduct of the virtual courts system adopted during the lockdown.
Issues with the Virtual Court System
The virtual court system being availed during this unprecedented time has a plethora of issues in its operations. The argument in favor of virtual courts cannot fully ignore the gaps in the system, and it is vital to understand the blemishes in the virtual court system.
Lack of Infrastructure in Courts
Phase II of the e-Courts project had planned to provide video conferencing facilities in all courts, but according to the 2019 e-Courts Objective Accomplishment Report, District and Taluka courts still do not have computerized libraries. Also WAN connections in all states has still not been completed, therefore all courts still do not have internet facilities. The Bar Council of India (BCI) and Delhi High Court Bar Association (DHCBA) put forth that virtual courts system is not possible in many districts due to a lack of infrastructure and technology. If internet facilities have not even seeped through down to the whole system how is it justifiable to carry virtual courts and call them a replacement of physical courts?
The Delhi High Court had to wrap the Delhi government on its knuckles as it failed to provide district courts with good internet speeds during the time of this pandemic. It was brought to the court’s knowledge that the district courts had told the government to better the internet to facilitate the virtual courts system. If courts in Delhi are facing issues with regards to internet connectivity and speeds it can be only imagined what courts in rural areas and towns may be facing; that is if computerization has reached there in the first place. Is a virtual court system only meant for the metropolitan cities? Justice should be at one’s disposal regardless of such factors, especially in such trying times, but so is not the case when it comes to virtual courts. Therefore, in a country like India virtual courts will face the issue of lack of infrastructure if they are fully utilized.
What about the not so technologically savvy?
Even if the hindrances of slow internet can be removed, it is still evident to see that a client and the lawyer representing them along with the judges should have a reasonable know-how of the technology involved and the way to smoothly transition to the mode of virtual courts. Such a transition takes years to normalize through to the parties involved. The abrupt shift from normal court proceedings to virtual court system is not easy for all. The young lawyers and the ones who have a grasp of how the technology works may find it easier, but what about the lawyers who are not that adept with the functioning of the software and find themselves two steps behind? Even the Chief Justice of India opined in a webinar organized by the Supreme Court that his experience of virtual hearings had been disappointing, and that he was not well acquainted with the system; also adding that there is a problem in taking notes and marking files, which are a usual routine for a judge.
There is also the issue of justice in such a system being only for the privileged. Many lawyers may not have the luxury of having a laptop or internet facilities with themselves, especially during the current financial crisis. Although the Supreme Court in its 6th April order does provide that courts must make video conferencing facilities available to an advocate who does not have such means, that is mere instructions and the implementation would be shambolic. How can an advocate in the district court avail video conferencing facilities when the district court itself would not have the facilities? Access to virtual courts should not be limited to legal firms and advocates who are well off. Justice does not know economic classes; equality, non-discrimination and equal access principles should be enshrined even in the virtual world.
Leading Evidence is cumbersome
Evidence may be termed as the apparatus to proving or disproving a fact in the court. In a virtual court system there are hindrances aplenty when it comes to putting forth evidence in front of the learned judges. In the current virtual scenario the Supreme Court has firstly restricted hearings of cases to the ones which are in the trial stage, and evidence to be recorded “in no case except with both parties giving mutual consent”. Soft copies of documents can be accessible, but ascertaining physical evidences in criminal matters can come as a sizeable roadblock to the implementation of virtual courts. Trials are substantially based on the evidence put forth by the parties. Therefore there will always be a lack in the virtual courts system when it comes to cases which are in the trial stage.
The art of being an advocate, especially a trial advocate lies in the ability of cross-questioning a witness. Witness examination and cross examination is rendered almost useless in a virtual court. The advocate’s demeanor in front of a witness, the reading of the body language of a witness, the sharp and rapid questioning by a well versed advocate is lost somewhere between signal drops, connectivity issues and listening to an advocate dispelling his authoritative tone through earphones. This makes a skilled advocate look like a toothless tiger, and completely takes away the art of cross examining a witness which could be a turning point in a case.
Susceptible to Cyber attacks
Hacking and various other cybercrimes have developed alongside technology and the internet as well. Therefore it is quite certain where there is innovation there are also new ways to misuse such technology. The Supreme Court is using the Vidyo application to conduct its hearings, whereas some High Courts are using Zoom, Webex or other such applications to conduct hearings during this time. There is no standard application which has legitimate safety standards that is being used across the Courts. This makes it a scary ordeal if there are lapses and loopholes regarding encryption of the video conferences in such applications. Notorious hackers can easily find vulnerable spots and cause disruptions during the hearings. There may be a leak of sensitive information which the Courts may not be technically superior to notice. It is not a jab at the qualifications of respected court officials and judges but hackers are one step, if not more, ahead of the authorities. Recently during a court hearing in the state of Florida, USA a hacker played a pornographic clip during a virtual court hearing. Such nuisances disrupt the sanctity of the court. They may just not be limited to disturbances but may be even more severe threats. There must be a standard application which is capable of encrypted end to end video conferencing facilities that all courts throughout the country use and not just anything according to their whims and fancies.
The e-filing software of the Courts has to be encrypted so that it is foolproof and cannot be accessed. A drawback of keeping records of cases online is that if a cybercriminal does achieve to get into the software, a denial of service attack can be easily executed. With such an attack all the case records and documents can be at the mercy of the cybercriminal and they may well instigate a ransomware attack over the case records. This could completely shut down the virtual courts system and bring things to a halt. If a cybercriminal has backdoor access to the encrypted files and case records, they may also disclose sensitive information of clients which would make people stray further away from virtual courts and keep them in the physical courts system of huge files.
Justice DY Chandrachud in a webinar made it clear that virtual courts could not replace physical courts and that the judiciary had to resort to virtual hearings as there was no other choice left. When the Chairperson of the Supreme Court’s e-Committee himself keeps such views regarding virtual courts, it is indubitable that there lie faults in the system. A virtual court system, on paper sounds like quite the initiative, but it is still in its rudimentary form and its application is haywire to say the least.
The Indian courts were not ready for such a sudden shift, implementation of technology is vital for the advancement of the legal sphere, but a haphazard implementation does more damage than benefit. It is no surprise that there have been constant demands from bodies like BCI, DHCBA and SCBA to resume physical hearings at the earliest. The argument raised was, if various government bodies could function with social distancing measures in place, why not courts? This argument may not really be convincing as it would be a ruckus to control the crowds at courts throughout the country, but bodies like the BCI, SCBA and DHCBA being so displeased with the virtual courts should be focused upon.
The grandeur of courtrooms is amiss, due to technical snags in videos, login issues, audios overlapping each other, the words of an advocate failing to have the same magnitude in them coming from a speaker/earphone. There are instances of lawyers being disconnected during their submissions, being told they are inaudible. These are just some of the many defects in the virtual courts system, which some have termed as revolutionary. Although, there is no malice or corruption in the inherent system itself, it is just that it the implementation of such virtual set-ups is troublesome at its outset. A virtual set-up of courts cannot ever take over the divinity of physical courts, no matter how much of a hassle it is to spring from courtroom to courtroom. A virtual court set-up cannot ever function without an alternate physical court for people who cannot access it. The glass is more empty than full in favor of virtual courts in the current legal scenario. There exist too many lacunas for such a system to smoothly function in today’s times.
 Manish Dixit, Justice in the Time of Corona, INDIA TODAY, (last updated Apr. 2, 2020 9:45), https://www.indiatoday.in/india-today-insight/story/justice-in-the-time-of-covid-19-1662330-2020-04-01.  State of Maharashtra v. Praful Desai, (2003) 4 SCC 601.  Ranjeet Rane & Ahmad Pathan, Courts say no to paper trail, go digital from the top down, HINDUSTAN TIMES (July 10, 2017, 20:56)https://www.hindustantimes.com/tech/courts-say-no-to-paper-trail-go-digital-from-the-top-down-opinion/story-iyuMYWfLj48ugbuZE1vhEI.html.  e-Court Services, Supreme Court of India, https://ecourts.gov.in/ecourts_home/static/about-us.php.  User Manual e-Filing Procedure, Department of Justice, https://efiling.ecourts.gov.in/assets/downloads/efiling-User-manual.pdf.  e-Courts Project- Objectives Accomplishment Report, eCommittee Supreme Court of India, (last visited Aug. 12, 2020, 11:42) https://ecourts.gov.in/ecourts_home/static/manuals/Objective%20Accomplishment%20Report-2019.pdf.  PTI, Courts should resume physical hearing at earliest: BCI & DHCBA tells Parliamentary panel, INDIAN EXPRESS, (Aug 7, 2020, 01:23), https://www.newindianexpress.com/nation/2020/aug/07/courts-should-resume-physical-hearing-at-earliest-bci--dhcba-tells-parliament-panel-2180112.html.  Press Trust of India, District Courts need good internet speed for virtual hearings: HC to Delhi, BUSINESS STANDARD, (last updated July 29, 2020, 20:46) https://www.business-standard.com/article/current-affairs/district-courts-need-good-internet-speed-for-virtual-hearings-hc-to-delhi-120072901792_1.html.  Saniya Siddiqui, Virtual Courts and the Technologically Handicapped, THE LEAFLET, (May 18, 2020), https://theleaflet.in/virtual-courts-and-the-technologically-handicapped/. Suo Moto Writ (Civil) No. 5/2020, Supreme Court of India, (last visited Aug. 14, 2020.) https://main.sci.gov.in/supremecourt/2020/10853/10853_2020_0_1_21588_Judgement_06-Apr-2020.pdf.  Id.  DNA Web Team, Hacker plays porn clips during virtual court hearing in Twitter hack case, DNA INDIA, (last updated Aug 6, 2020, 10:33) https://www.dnaindia.com/world/report-hackers-play-porn-clips-during-virtual-court-hearing-in-twitter-hack-case-2836209.  Murali Krishnan, Virtual courts not a substitute to physical courts: DY Chandrachud, HINDUSTAN TIMES, (Aug 13, 2020, 19:28) https://www.hindustantimes.com/india-news/virtual-courts-not-a-substitute-to-physical-courts-justice-dy-chandrachud/story-8YrTg4dmP2IKzFJMnDrdqK.html.  Supra note 7  Samanwaya Rautray, SCBA urges Supreme Court for resumption of physical hearings to help those in distress, INDIA TIMES, (last updated Aug 7, 2020, 08:16), https://economictimes.indiatimes.com/news/politics-and-nation/scba-urges-supreme-court-for-resumption-of-physical-hearings-to-help-those-in-distress/articleshow/77400020.cms.  Puneet Nicholas Yadav, Do Virtual Courts Reserve Access to Justice Only for the Privileged Few?, (May 11, 2020), https://www.outlookindia.com/magazine/story/do-virtual-courts-reserve-access-to-justice-only-for-the-privileged-few/303146.