“COVID-19” A blessing in disguise for the Indian Judicial System
- Team Lawgram
- Apr 8, 2020
- 8 min read
Updated: Apr 16, 2020
Virtual Court & Indian Judicial System
" An improvement rather than perfection"
By Devika Mathur
Introduction
With the epidemic of COVID-19 the world has come to an unprecedented halt which was beyond the imagination of everyone except the directors of the movie Contagion who had foreseen this way back in the year 2011.
Though coronavirus is the worst thought nightmare ever which is wrecking the disaster all the over world sparing none but somehow this pandemic of COVID-19 has acted as a blessing in disguise for snail speed based Indian Judicial System.
The recent move by the Apex Court[1] of enabling urgent hearing using video conferencing has somehow acted as a sign of relief for the country’s legal fraternity.As per the direction issues by the Hon’ble Supreme Court for the very first time, the judges and lawyers appearing before them will be in separate r ooms. The judges will be sitting in their rooms, while the lawyers will argue from a designated room in the court complex.
But is the picture so rosy at it seem?
Supreme Court and High Court have been emphasizing the use of the video conferencing before the outbreak of the epidemic of Covid-19, there have been previous judgments which have clearly ordered the District Courts to use the video conferencing for the matrimonial cases. As per the article[2] published by the India Today, the Supreme Court had ordered the trial courts to take up divorce matters through Video-Conferencing, back in 2017 due to pendency of cases as well as to save time and to reduce the burden upon the parties by travelling if they stayed in different cities. Use of electronic media including the email and WhatsApp as a medium to summon notices to the parties has tremendously taken away the deliberate hindrances of the parties not accepting the service of summons and most importantly in the matrimonial cases where the completion of a service is an essential part. Smt. Anchal vs Sh. Raman Kumar [3]
The Hon’ble High court of Himachal Pradesh had in its judgement very clearly stated the following:
“We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons.
The safeguards can be:- i) Availability of video conferencing facility. ii) Availability of legal aid service. iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC. iv) E-mail address/phone number, if any, at which litigant from out station may communicate."
Maharashtra vs Praful B Desai (Dr.), [4] The Supreme court permitted recording of evidence of witnesses staying abroad through video conferencing. This Court held that the term ‘evidence’ includes electronic evidence and that video conferencing may be used to record evidence. It observed that developments in technology have opened up the possibility of virtual courts which are similar to physical courts. The Court held: “Advances in science and technology have now, so to say, shrunk the world. They now enable one to see and hear events, taking place far away, as they are actually taking place…Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence… Infact he/she is present before you on a screen. Except for touching one can see, hear and observe as if the party is in the same room. In video conferencing both parties are in presence of each other… Recording of such evidence would be as per “procedure established by law”.”
Md.Ajmal Md.Amir Kasab @Abu … vs State Of Maharashtra:[5] On March 23, 2009 the court permitted Kasab to appear through video conferencing.
Sucha Singh v. Ajmer Singh & Anr[6]: The Petitioner was a material witness, therefore the court allowed examination of the witness through video-conferencing via WhatsApp, Skype or similar other applications. During the Pandemic of COVID-19
Hon’ble Jharkhand High Court
SHILPI BAXI ALIAS SHILPI BAKSHI ALIAS SHILPI SINGH VS. UNION OF INDIA THROUGH CBI First bail order via video conferencing amid Coronavirus lockdown where the petitioner was set free on bail by furnishing a bail bond of Rs.10,000/- (Ten thousand only), with two sureties of the like amount each to the satisfaction of learned Additional Judicial Commissioner cum Special Judge, C.B.I., Ranchi in connection.
KERELA HIGH COURT, HEARD 8 BAIL MATTERS On 24.03.2020, the Hon’ble Court of Kerala High Court Heard 8 Bail Matters through Video Confessing, in the History of Kerala High Court it was the first time when the court room turned into the visual court room. The proceedings was through Zoom video conference app, on which the judge & lawyers were connected.
CALCUTTA HIGH COURT, SWITCHED TO MICROSOFT TEAM FROM SKYPE The Hon’ble Calcutta High court through a notification dated 07/04/2020, had asked all the lawyers to download “Microsoft teams” for the purpose of video conferencing in order to hear all the urgent matters. Of course there are pros and cons to everything, when it comes to technology there are of course less of cons as compared to pros.
The main benefits of Electronic courts are as follows:
1) Technology will greatly enhance the speed of Justice Delivery System in India which is the need of the hour due to the huge backlog of pending cases in our country.
2) Accessibility of the judicial system will be within the reach of all including the litigants who are mostly left without the access to their cases on date to date basis.
3) Connectivity of the Indian Judicial System by taking the traditional court towards the E-courts will surely impact the delivery of justice in the highly diverse population of our country who are mostly left out without the access to the judicial system.
4) Enable the dispensation of justice to take place in diverse settings and situations without compromising the core legal principles of adjudication.
But is this transition towards Virtual court so easy?
The judicial system have to tackle a host of problems which would greatly hinder the process of virtual courts becoming reality in our country. Certain problems which would crop up will be:
1) Protecting identity
If video recordings are done, it will be impossible to protect the identity of victim or convict, both of whom will face accusatory judgements of the society which basically believes that anyone dragged into court has done something wrong.
2) Do we have robust online infrastructure?
Our country does not hold a lot of IT infrastructure to support this huge transition of our court rooms completely into virtual courts. It would be highly complex and tedious to create this transition a successful one. It would require a complete makeover of our existing technical framework.
3. Technically Sound Skillset required
In order to have the dream of transition of the courts into virtual courts, it would require the highly technical skilled and equipped court staff who can tackle all the issues arising out of the virtual court room proceedings as the live court room proceeding may at times suffer from technical glitches which would require prompt solutions at the very moment itself in order to complete the proceedings.
Despite all the odds, it is the need of the hour as the pandemic has brought the justice delivery system to an abrupt halt and the Apex Court has already started the process of virtual courts and the matter is still under experiment. Whether or not courtroom trials will be recorded shall be decided only after the experiments prove successful and bear complete security to the identity of the people pleading or defending.
A RAY OF HOPE
Amongst all the gloom and doom, the Hon’ble Apex Court has finally shaped up the guidelines of the video conferencing thereby directing the district courts and other tribunals respectively to adopt the mode of Video Conferencing.
As per the order dated [7]06 of April, 2020 the Hon’ble Supreme court of India in exercise of the powers conferred by the Article 142 of the Indian Constitution which gives the apex court the power to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. In order, the Supreme Court has drafted measures keeping in mind the Social Distancing as well as speedy adjudication.
Such measures are:
a) Reducing the need for the physical presence of all stakeholders within court premises and to secure the functioning of courts in consonance with social distancing guidelines and best public health practices shall be deemed to be lawful;
b) The Supreme Court of India and all High Courts are authorized to adopt measures required to ensure the robust functioning of the judicial system through the use of video conferencing technologies;
c) Consistent with the peculiarities of the judicial system in every state and the dynamically developing public health situation, every High Court is authorised to determine the modalities which are suitable to the temporary transition to the use of video conferencing technologies;
d) The concerned courts shall maintain a helpline to ensure that any complaint in regard to the quality or audibility of feed shall be communicated during the proceeding or immediately after its conclusion failing which no grievance in regard to it shall be entertained thereafter.
e) The District Courts in each State shall adopt the mode of Video Conferencing prescribed by the concerned High Court.
f) The Court shall duly notify and make available the facilities for video conferencing for such litigants who do not have the means or access to video conferencing facilities. If necessary, in appropriate cases courts may appoint an amicus-curiae and make video 5 conferencing facilities available to such an advocate.
g) Until appropriate rules are framed by the High Courts, video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage. In no case shall evidence be recorded without the mutual consent of both the parties by video conferencing. If it is necessary to record evidence in a Court room the presiding officer shall ensure that appropriate distance is maintained between any two individuals in the Court.
h) The presiding officer shall have the power to restrict entry of persons into the court room or the points from which the arguments are addressed by the advocates. No presiding officer shall prevent the entry of a party to the case unless such party is suffering from any infectious illness. However, where the number of litigants are many the presiding officer shall have the power to restrict the numbers. The presiding officer shall in his discretion adjourn the proceedings where it is not possible to restrict the number.
Now when this pandemic of Covid-19 which will end sooner or later for sure and the world will overcome this havoc caused by this disaster to the mankind, what would be important to see would be the transition of our snail paced justice delivery system towards the more efficient and speedy virtual system of justice.
Hope the pandemic of Covid-19 will surely bring the much awaited change in the Legal System of our country which caters to the legal needs of the most diverse population of the world.
The time is near when people could be heard saying SEE YOU IN THE VIRTUAL COURT which would be a positive transition from the age old saying in India which goes by “ See you in the Court” taking the See You in Court attitude.
Author is lawyer practising in Delhi High Court and Tribunals. View(s) of the author are personal.
[1] https://economictimes.indiatimes.com/news/politics-and-nation/sc-to-conduct-hearings-via-video-conferencing-from-today/articleshow/74764793.cms?from=mdr [2] https://www.indiatoday.in/mail-today/story/sc-orders-use-of-video-conferencing-to-reduce-divorce-case-pileup-965342-2017-03-13 [3] https://indiankanoon.org/doc/125519763/ [4] (2003) 4 SCC 601 [5] https://indiankanoon.org/doc/193792759/ [6] https://indiankanoon.org/doc/37814014/ [7] SUO MOTU WRIT (CIVIL) NO.5/2020
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