Advocates Aarti Sathe and Niraj Sheth have prophesied that full digitization of litigation in the form of e-filing and virtual hearings will become a reality of our life in the near future. They have cited several real-life examples in our Country and in other Countries where virtual litigation has already been successfully conducted. The ld. authors have acknowledged the huge infrastructure challenges that have to be overcome to make the goal a reality and have offered a few suggestions on how it can be done
Courts are an integral part of our society and are required to keep functioning so as to maintain law and order. They are a necessary fixture not just for a section of the community but everyone at large. It is impossible to imagine the regular working of a nation without the regulatory supervision of the judicial system, even for a short period of time. This has been brought to light via the recent COVID-19 pandemic which called for a complete lockdown on all services to avoid the spread of the virus. The only solution which was recognised also by the Supreme Court was to turn to digitalizing legal proceedings through the medium of video conferencing. (1) This only goes to justify the understanding of courts as a ‘service’ and not a ‘place’. The object of this article is to emphasize upon the significance of using modern technology to conduct court proceedings to not only prevent disruption in the justice delivery system but also streamline the future of the Indian judiciary.
Unprecedented times to act as a needed impetus
India has been preparing for this leap towards the virtual world for over 15 years now. The Indian Government established the e-Committee of the Judiciary in December 2004, which has overseen the steady adoption of electronic infrastructure by courts across the country. (2) They had suggested video conferencing and recording facilities for courts and jails in all states in their 2014 report. This was initially meant for sensitive cases such as child abuse, domestic violence matters and sexual abuse incidents and then was to be steadily applied to other areas as and when the need arose. The Objectives Accomplishment Report (2019) of Phase II of the e-Courts Project states that as many as 3,388 court complexes and 16,755 courtrooms across India have already been computerised and video-conferencing equipment has been provided to 3,240 court complexes and 1,272 jails. (3)
Therefore, the current pandemic is only going to push forward a stone that was ready to be in motion, i.e., the path towards hearings on video conferences and taping of records was already set out since 2004 but not put into action completely. The chairman of the Supreme Court E-Committee, Dr. Justice Chandrachud held a video conference with chairpersons of the computer committees of various high courts on April 04, 2020, to ensure that courts could conduct urgent hearing matters through video conferencing and also to enable e-filing of documents and affidavits consistent with Section 6 of the Information Technology Act. (4) This shows that the usage of technology to operate courts or more appropriately e-courts is not impossible and must continue on a long term basis for reasons as listed in this article.
Necessity/Advantages of e-Courts
(I) ‘Social distancing’ is the only weapon which till date can actively help contain the spread of this pandemic. This is where video-conferencing plays an important role such that instead of going for physical hearings to courts or tribunals and exposing lawyers, litigants and judges to the spread of infection, video conferencing helps reduce direct contact with other human-beings thereby cancelling the chain of contact and the disease.
The usage of video conferencing facilities plays an important role in “social distancing”,which is the need of the hour. Therefore, by preventing physical hearings which hasten the spread of infection and crowding, video conferencing will completely help in observing “social distancing“
(ii) As per the established practice, the documents and submissions made are filed in at least duplicates or triplicates depending upon number of judges, etc. if we substitute these practices with e-filing of documents we can save substantial quantities of paper. E-filing of appeals / paperbooks is a very achievable goal since most records are already available / submitted in soft form before lower authorities.With video conferencing and especially e-filing facilities we can go paperless which will have huge benefits not only from making our offices paper free, but in turn will have far reaching environmental benefits also since being humane and not disturbing the ecological balance is one of the biggest takeaway this pandemic has or should have taught us.
(iii) Video conferencing can be used in almost any kind of legal matter including bail application, remand hearing, civil matters like matrimonial disputes, criminal proceedings, etc. as has already been the practice in India in special cases. The sole requirement of the act is that the court just requires the oral evidence to be made before it. Hence, the evidence can be presented before the courts by the way of video conference or other electronic means as well.
(iv) Remote-conferencing i.e. video conferencing from remote locations will help us overcome the geographical hurdle in physical appearances. Lawyers or litigants can be situated in one state and still appear for a case in another state, in India. Now, this achieves dual purposes, we contain the spread of disease and help the problem of overcrowding in courts in general and we can maximise our resources, save time and money in travelling to different courts or tribunals and therefore redirect our efforts in achieving higher productivity.
Video-conferencing must now be seen as a long-term alternative method of conducting hearings, incorporating it in the functioning of court will be a matter of great convenience. It will enable those involved in litigation to appear from remote locations and thereby allow one to work from home etc. which will again enable social distancing
(v) Another great aspect of remote conferencing is that it will help lessen pollution as well as traffic congestion on account of lesser travel to courts across the country. Video conferencing facilities will allow lawyers to appear pan-India and limit travel to matters which cannot be conducted virtually or due any other reason thereby reducing our carbon footprint and saving the environment.
(vii) Digitalization of operating systems has always brought out more efficiency and transparency. Video conferencing will further help to bring out more transparency as the entire hearing can be recorded and kept as an archive for future reference, keeping alive the spirit of courts of record.
(viii) To make the process more workable, lawyers and counsels can circulate in advance the written submissions of the arguments which they would like to plead before the judges during video conferencing (to primarily supplement what their submissions are). Assigned time can be given to each side to present their case, this will enable to streamline hearings and it will result in faster disposal of cases.
(ix) Like the two houses of parliament, High Courts and Tribunals can have their own television channel or webcasts on the internet where they broadcast proceedings of the court live. This of course has to be done keeping in mind the nature of case and sensitivity of the issue. This initiative will help bring about more awareness about the process of Indian judiciary and therefore more transparency. It will enhance public participation through live links, especially in matters of national interest and importance.
(x) Speaking of creating records for future references, creation of a digital library containing legal-reference books, commentaries, bare acts, case laws all in a single place will not only help with spread of knowledge but also conduct research for a particular case. It is also important that access to this library be kept free or at a minimal charge of fees so that really everyone can benefit from the same.
(xi) To show that remote conferencing and work is possible, many law firms and CA firms in India have already geared up and are conducting their work from home, opening possibilities for this to be extended to all fields
(xii) While initially conducting proceedings on a pilot basis, tribunals, like the ITAT, can consider onhearing of small/covered/SMC matters, however, ultimately the goal should be to make this a "permanent" rather than a "stop-gap" temporary solution. This may require investment in technology and gadgets both by the Bar and the Bench, which can already be seen as fructifying through the current directive to use unspent funds from phase II of E-courts project.
(xiii) It will help in reducing the pendency of cases through faster disposal via remote hearings. Justice Madan B. Lokur in-charge of E-Committee of the Supreme Court said that “twenty-five to thirty per cent of cases in the lower judiciary are pending because summons does not get delivered to parties.” This would be possible through e-mail summons/ SMS summons.
Inculcation of e-Filing
Courts can mandate compulsory electronic filings and registering of pleadings/ applications with synopsis of arguments and law relied upon. In the ordinary course, based on the pleadings, synopsis and written submissions filed, the Judge can pass speaking orders that are published (or issue notices that can be communicated electronically to all parties).
While it can be expected that written submissions can be the primary mode for case presentation, the concerned bench may require oral hearings in certain cases where the assistance from the lawyers presenting arguments in a time bound manner over video conference would meet the ends of justice. The reluctance in using video conferencing to conduct hearings is partly due to the secrecy of the process, however by sending links of the live proceedings on all news channels who will broadcast the same for the public at large, such a hurdle would be overcome. Rule 4(1) of the ITAT Rules, 2017 allows that "A Bench shall hold its sittings, either physically or through the video conferencing, at any of the places where benches are situated or at such other place as may be authorised by the President in this behalf.” It can be thus seen that the 2017 amended rules provided for virtual hearing, it is only a matter of execution of the said rules.
Changes bring about certain challenges
(i) A Video Conference call requires a computer along with a video-camera and a good quality internet connection, to be able to see, speak and hear clearly. Since a majority of Indian population live in poorer economic conditions, affording a PC system plus a regular working Internet connection is a matter of luxury one cannot afford, a computer becomes even rarer as one moves towards lesser developed areas.
(ii) There is also a problem of ignorance in handling technology in our country. While one of the reasons being lack of access to a computer due to weaker financial conditions, the other reason pertains more to the overall attitude towards technology. Where it is seen that the younger generation is more open to embracing new technology, i.e. tech-savy, the older generation is reluctant to let go of traditional methods, resulting in a general lack of skills in operating computers and technology.
(iii) To shift the perspective a little bit, the quality/ speed of the internet in India, is much slower as compared to other countries. As of March, 2020 India ranks 130 out of 141 countries in terms of average mobile Internet download speed, with India’s average 4G download speed of 10.15 Mbps being far lower as compared to the top ranked country, United Arab Emirates having an average speed of 83.52 Mbps. (5) This results in voice-cracking or distortion of video during the video-conferencing call, which creates a dangerous situation if the judges mis-hear the parties to litigation.
(iv) Video-conferencing, at present, requires dependence on third-party applications or websites to conduct hearings. The Home Ministry has issued an advisory stating that the use of ‘Zoom’ is not safe for government offices citing it as “unsafe and vulnerable to cyber attacks”. (6) This is especially concerning as the Hon’ble Supreme Court and some High Courts like the Bombay and Telangana High Court, etc. are making use of the Chinese based website/ application ‘Zoom’ to conduct hearings through video-conferencing. In order to continue the use of video conferencing and e-filing and online document transfer in daily court proceedings creating a website or application which is India-based and Government approved will become essential, primarily from the point of view of security.
(v) Speaking of creating a whole virtual infrastructure, one of the challenges usually faced is that of ‘overloading’ or ‘crashing’ of government websites or applications. One of the reasons it occurs is when a lot of people are trying to access the website or application at the same time. It is important that appropriate measures are taken like regular maintenance and continuously monitoring the site performance. It is also important that these websites are user-friendly and easy to navigate.
(vi) Sharing data virtually also brings with it security concerns. Incidences of government websites and AADHAR data being hacked has been reported in the past. Leaking of information can significantly impact the case of a litigant and it will also be a gross violation of their right to privacy. Steps like using ‘captcha codes’ or ‘one-time passwords’ on the user-end and employing high-end firewall security, etc on the creator’s end should be taken.
(vii) End of lockdown poses us with 2 questions, whether this method of conducting hearings will be dropped once the lockdown is lifted or will it be gradually incorporated and used for conducting hearings initially on a pilot basis of small/ covered/ SMC matters and ultimately to all other hearings? If we drop this method, it will be counter-revolutionary to the digital India movement. But employing this alternative will require significant investment in technology and gadgets as well as creating a system of schedule and guidelines for its smooth functioning by both bar and bench. Both the options have their own pros and cons but the scales clearly tilt in the favour of going digital permanently and not seen as a ‘stop-gap’ thing.
Response of Judicial systems across the world during the times of pandemic
The Supreme Court of India has announced that only matters urgent in nature shall proceeded with. It regularly issues updated guidelines to conduct hearings via video conferencing via ‘Vidyo’ but also Skype, Whatsapp and any other application if the need arises and has impressed upon using e-filing for filing petitions and other documents. It has also set up a helpline for assistance with e-filling and video conferencing. Various High Courts like the Bombay, Delhi, Madras, Karnataka and Orissa have cancelled their summer vacation, for the High courts as well as their subordinate courts, to make up for the working hours lost to COVID-19 lockdown. The National Green Tribunal too has announced cancellation of summer vacation.
In case of Telangana HC, all benches will function through video-conferencing from 20th April, 2020 onwards (7) . Previously it had operated through “virtual courts” where the judges would be present in one court room and the advocates for the respective matter in another court room, through video conferencing (8) .Gujarat High Court has been one of the most progressive courts in this front. A press note released by Gujarat HC informed that on 15th April, 2020 it heard a total of 111 matters out of which 59 were disposed of. These matters were heard via video-conferencing from the respective residences of the Judges. It has also installed a Sanitization Tunnel from which all the personnel entering the premises will have to compulsorily pass through. (9) Gujarat HC has also heard a Habeas Corpus Writ via video conferencing, the bench directed the police at the Rajula Police Station not to bring the 15 year old girl, hailing from Jharkhand, to Ahmedabad but to produce her before the HC Bench through video conferencing by taking her to the court of Court of Additional District Judge, Rajula in Gujarat. (10)
In the rest of the world, the Supreme People’s Court of China, in February, has urged courts at all levels to guide litigants to file cases or mediate disputes online, encouraging judges to make full use of online systems. From February 3 to March 31, 2020 about 150,000 cases were heard online by courts nationwide (11) . China has also set up “Internet courts” which handle litigation procedures online from filing a case to issuing judgment documents.
In the UK, the enactment of the Coronavirus Act provides for greater use of audio/video hearings. Courts in the UK have made arrangements to conduct proceedings through telephones, video and other technology; ‘Skype for business’ is largely relied upon. Italian and Australian Courts too are gradually increasing the use of video-conferencing for its activities.
In the US, courts are using multiple audio and video conferencing technologies to host oral arguments, initial appearances, preliminary hearings, arraignments, misdemeanor sentencings, and other procedures remotely. The many technology options being used and tested by the Judiciary include AT&T Conferencing, Court Call, Skype for Business, Cisco Jabber, and Zoom. (12)
Challenges are not insurmountable
The obstacles that lie in the path to e-courts and virtual litigation appear in the forms of digital illiteracy or not being tech-savy, poor internet connectivity in many areas of India, technical glitches and privacy concerns that arise while using video conferencing platforms. However, these obstacles can be overcome through the means of the Digital India programme launched by Hon’ble Prime Minister Shree Narendra Modi in 2015. The aim is to produce a digitally empowered society and knowledgeable economy. Already ex-Chief Justice of India Deepak Misra and Law and Information Technology Minister Ravi Shankar Prasad have launched e-filing, e-payment options, National Service and Tracking of Electronic Process (NTSEP), Supreme Court Legal Services Committee (SCLSC), and user manual and awareness guide for services offered under the e-Courts programme, in accordance with the judiciary’s digital india initiative. The Digital India Initiative has been a game changer. Under the said programme, the entire E-Courts project is a free open source project which saved more than Rs 1,670 crore of the public exchequer, showing the capabilities and readiness in terms of infrastructure.
Therefore, such worries will soon be a thig of the past leaving the road to full digitization of litigation in the form of virtual hearings and e-filing completely open and achievable permanently.
(2) ECOMMITTEE SUPREME COURT OF INDIA POLICY AND ACTION PLAN DOCUMENT PHASE II OF THE ECOURTS PROJECT (as approved on 8th January, 2014)
(6) Home Ministry division issues guidelines for safe use of Zoom amidst security concerns reported by Bar and Bench as on 16th April, 2020.
(8) Virtual Court Notification dated 21st March, 2020
(9) Hearing through Video Conferencing from Judges Residences – Gujarat HC. Date 15th April, 2020.
(10) HEARING OF HABEAS CORPUS WRIT PETITION THROUGH VIDEO CONFERENCING. Date 21st April, 2020.