Virtual Hearings in India

In News

• Recently, the Chief Justice of India (CJI) expressed his dissatisfaction in open court over Cisco, the software newly put in place in the Supreme Court for virtual hearings.

About

• While the court stoically transformed from physical to virtual mode nearly two years ago without losing a single day’s work in the face of a debilitating pandemic, it seems to have not settled into a suitable software. 
• Though the court began hybrid physical-virtual hearings from September 1, the virtual mode continues to be in vogue amidst reports of a third wave.

Problems with the Software

• Poor connectivity
• Echoes
• Other disruptions. 
• Technical interruptions during hearings.

Principles to be followed before going virtual

• Equal access and non-discrimination: 
  • Article 14 enshrines equality before the law to all persons within the territory of India. Secondly, one can hope that technology might expedite the legal process. And given the increasing accessibility of the medium, it could dilute the complexity of approaching the legal order. However, it’s important to address that the same could act as a barrier for many too.
• Fair and due process: 
  • One of the reasons to introduce virtual courts in India is to provide a more open and fair platform following the due process. Digitisation of judicial documents could enforce the ideals of due process by saving the accused’s right to privacy. For instance, the authorised person can only mine relevant information, perhaps immuning the accused from unreasonable search and seizures.
• Adhering to the principle of natural justice: 
  • Natural justice principles aim to provide equal opportunities to be heard. However, certain technical loopholes may cause injustice to one party. For instance, if one party is physically present and the other is virtually present, technical glitches could delay or negatively affect the judge’s subconscious.
• Open justice and algorithmic transparency: 
  • The transparency associated with the open courts have traditionally built confidence and had set down the faith in the human intellect. However, when it comes to virtual courts, the e-Committees is ensuring transparency to the public digitised open courts via video conferencing and live streaming of proceedings and judgments held in courts.
• Privacy and data protection: 
  • Before virtual courts in India can become a reality, the legislature needs to frame laws to ensure privacy to protect sensitive data. There is a need to balance the interest of litigants, related parties to the cases, and the judiciary. The same could be achieved by laying down strict laws and standards to protect information stockpiles in the court’s database so that the concerned sensitive data would not be leveraged.
• Increased accountability: 
  • Furthermore, the Hague Charter for Accountability in the digital age imposes a duty for internet actors to demonstrate the appropriate level of responsibility for the consequences of their actions and operate within the confines of the rule of law.

Benefits of Virtual Courts

• Transparency
• Confidentiality is given importance
• Trespassing reduced
• It permits multiple appearances, not only within the same court system but in totally different cities from the safety of our homes.
• More pointed and shorter arguments, less simultaneous speaking and less interruption.
• Cost savings as it cuts down the need for travel of the lawyers and litigants to the courts. 
• It also gives the parties flexibility with respect to the seat of hearings and easier access to court orders online. 

Associated Issues

• Question of access: 
  • A large number of litigants and advocates lack internet connectivity and requisite infrastructure and means to participate in virtual hearings and the process. 
  • This has serious implications. 
  • The obvious one being that a large chunk of our citizenry is vulnerable to being excluded from the process of justice delivery owing to factors beyond their control.
• Degree of technological efficiency:
  • There are many Indias in one – in every sector, including law. 
  • The reasonable smoothness with which the Supreme Court runs, where cases are also fewer and have access to high quality conference softwares, does not mean that there is the same degree of technological efficiency in the lowest rung viz trial courts. 
  • It is there that most focus is required, on improvement, be it:
    • qua coverage, 
    • quality, 
    • numbers or 
    • efficiency. 
• Question of Privacy and Data Security: 
  • Courts across the world have had instances of intrusion and data privacy or security concerns while adapting to an entirely virtual mode of conducting hearings. 
  • Most virtual court proceedings in India currently take place using third-party software or platforms and a few of them have already been rejected earlier on grounds of being unsafe to use.
  • The committee opined that such third-party platforms pose a security hazard and are prone to hacking and misuse.
• Case Listing: 
  • The numbers of cases listed during Covid, even of the miscellaneous variety, are significantly lower in each court and at each level. Regular hearings have plummeted by over 90 per cent.
• Pending cases: 
  • With an all India pendency now touching over 3.5 crore, the significantly lower quantum of listing of cases (and the negligible listing of regular cases) means that on the one hand the litigant is irreversibly prejudiced and, on the other, the lawyer also suffers significantly. 
• Tool of Mentioning: 
  • Mentioning is an important tool to get urgent listing and to bring to the urgent attention of courts what the registry cannot handle or has refused to handle. 
  • For almost 18 months, mentioning had vanished completely and had restarted only two months ago. 

Way Ahead

• Even in normal times there should be a permanent system where at least 25-33 per cent cases in every court across the country at every level can be heard virtually. 
• Virtual Court is cleaner, more efficient, more cost-effective and more orderly, but it cannot become the norm and should be limited to a quantum and category of cases where both sides agree.

Source: TH