By YASH AGARWAL :
Online courts have asynchronous hearings, while in virtual courts the interactions are synchronous. What that means is that while in virtual courts the advocates, judges, witnesses and litigants are all required to be present or available at the time of the hearing, in online courts this isn’t the case.
HOW do we integrate virtual courts and digital justice delivery into the broader legal ecosystem of India? The urgency for developing some methodology or procedure for this has gained new relevance in the wake of the COVID-19 pandemic. The Parliamentary Standing Committee (PSC) of the department of Personnel, Public Grievances and Law and Justice recently tabled its 103rd report on the functioning of Virtual Courts and Digitisation of Justice Delivery in Parliament. Although it is an interim report, it is significant given the times we live in. A final presentation is in the works and will be tabled later. The PSC, during its deliberations, interacted with several stakeholders. They include the Secretary, Department of Justice and Secretary-General of the Supreme Court, the Chairman of the Bar Council of India, President of the Delhi High Court Bar Association and secretaries of the Department of Legal Affairs and Department of Justice. Before delving into the key findings and recommendations of the PSC, one question considered by it is of immense importance.
Is a court a place or a service? If a court is indeed a service, then it is simpler for it to function online. On the other hand, if a court is a place, more than a service, then that may bring nuances and complications of its own as far as the digitisation of courtrooms is concerned. There are multiple definitions of a ‘court.’ But here is what the committee said: “As far as India is concerned, neither the Civil and Criminal Procedural Codes nor the General Clauses Act embodies the definition of the term ‘Court’. However, as per the legal glossary of the Legislative Department, Ministry of Law and Justice, ‘court’ is a place where justice is administered. From the above, it is clear that although the definition of court varies across jurisdictions, they all seem to have two elements in common-that a court is a Government entity comprising one or more judges and that court deals with the administration of Justice thus making it clear that court is more of a service than a place.”
The report draws a distinction between virtual courts and online courts, two terms often used interchangeably. It states: “In virtual courts, plaint and other documents such as vakalatnama, written submissions are filed electronically; court fees are paid electronically; Evidence is submitted digitally; arguments are heard over videoconferencing; witnesses give their testimony remotely over videoconferencing and Judge decides the case online either presiding from the physical courtroom or from some other place. A copy of the order or the Judgement is made available on the website of the court or through some electronic means.” In comparison, online courts have asynchronous hearings, while in virtual courts the interactions are synchronous.
What that means is that while in virtual courts the advocates, judges, witnesses and litigants are all required to be present or available at the time of the hearing, in online courts this isn’t the case. In such a system of hearing, all the participants are not needed to be present together or simultaneously for the hearing to proceed and the evidence can be presented to judges without the need for their synchronous availability. At the risk of eliminating nuances, while virtual courts are basically mechanisms of conducting a court over videoconferencing, online courts are a relatively more advanced means of justice delivery. As far as the legal sanctity of virtual courts or videoconferencing is concerned – it was provided for by the Supreme Court in its April 6, 2020 order invoking article 142 of the Constitution.
This order covered all the High Courts, and they were in fact endowed with the discretion of adopting such a technology basis to their own needs customisation in view of the evolving pandemic scenario in different States. Model rules were drafted and circulated as well amongst all the High Courts while the District or lower courts were to adopt rules as prescribed by their parent High Courts. The report details how representatives of the Bar testified that large number of litigants and advocates lack internet connectivity and requisite infrastructure and means to participate in virtual hearings and the process. 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.
Moreover, such issues are likely to hit lower courts the worst. And this would have ramifications of its own since district or subordinate courts are the first port of call for a vast majority. In view of this, the committee recommended that the Ministry of Communications should fast track the implementation of the National Broadband Mission, with the aim of providing reliable, and consistent connectivity infrastructure to all districts and lower courts across India. The committee also opined that the judiciary considers solutions such as mobile video conferencing facilities to allow for meaningful participation from those living in remote geographies. A highly underrated but equally consequential factor is whether everyone, even if access to reliable internet connectivity is universal, is comfortable and well versed with the new tools and mediums of justice delivery. It is interesting that the Secretary, Department of Justice stated that big, well-to-do law firms and advocates in urban areas would face no issues as compared to those participants in rural areas given the digital divide.
Another equally interesting suggestion made in this regard in the report is that the Bar Council of India introduces a computer course module in the syllabus of three/five-year law programmes so as to skill students in some of these aspects as a part of their college education and training. As regards the need for virtual courts, representatives of the bar went to the extent of stating that virtual courts “threaten the constitutionality of court proceedings and undermine the importance of Rule of law which forms a part of the basic structure of the Constitution.”