Virtual Courts: A new normal

The pandemic may be the much-needed turning point to better integrate online courts into the country’s legal ecosystem

“The legal system as a whole has to adapt and re-engineer itself, technologically, to face challenges of the times. India has complex problems and technology is not a magic wand which would sweep away arrears in a short time. However, information technology provides powerful tools in promoting efficiency in the entire process chain.” (Justice S. Ravindra Bhat, in a 2016 interview to India Legal Live. Justice Bhat presided over the first High Court-level electronic court – at Delhi High Court – in 2009.)

The concept of electronic courts (e-courts) was conceptualized in 2005, on the basis of the National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary. Almost 15 years later, limited progress has been made in the large-scale adoption of technology in India’s judicial system. The level of progress has also been inconsistent across various judicial processes, whether it relates to digitization of legal records, e-filing or the adoption of video conferencing for court hearings.         

The coronavirus pandemic, with its prolonged lockdown and emphasis on social distancing, has highlighted the pressing need for large-scale adoption of technology at all levels of the judiciary. The crisis may, in fact, be the much-needed turning point to better integrate virtual or online courts into the country’s legal ecosystem.

In 2018, the Supreme Court had, in Swapnil Tripathi vs. Supreme Court of India, espoused the benefits of adopting technology in the judicial system, particularly live streaming of court proceedings: Highlighting the potential “tangible and intangible benefits” to stakeholders, especially litigants, the Court had observed that technology could “epitomize transparency, good governance and accountability, and more importantly, open the vista of the court rooms, transcending the four walls of the rooms to accommodate a large number of viewers to witness the live Court proceedings.”

In the same judgment, the Supreme Court also recognized that live streaming of court proceedings had been implemented in other jurisdictions globally. In India, video conferencing was already in use for specific types of witness depositions and in select tribunals such as the National Green Tribunal (NGT) and the Income Tax Appellate Tribunal (ITAT). As a response to the coronavirus pandemic, the Supreme Court, in April 2020, mandated the use of video conferencing mainly for hearing arguments at the trial or appellate stages. In doing so, the apex court took recourse to the powers conferred on it by Article 142 of the Constitution. 

While framing guidelines for the use of video conferencing in court hearings, the Supreme Court notably observed that the use of technology could not be seen as a temporary issue – it was “here to stay.” These statements indicate the resolve to bring about momentous changes to India’s judicial system which will benefit all stakeholders and result in extensive benefits. 

Although virtual or online courts have become necessary during the current crisis, they can have far-reaching benefits not only for the judiciary but also for other stakeholders, including lawyers, the police force and prisons. It is over-ambitious to expect that technology and digital processes will be adopted overnight. Rather, the current crisis needs to be seen as a turning point which will gradually enable the adoption of technology to make it a permanent part of our judicial system. For this to happen, current and potential challenges will need to be mitigated.

To ensure the widespread use of videoconferencing, e-filing and other digital processes, issues related to bandwidth and seamless connectivity will need to be addressed. This is a critical requirement since transitioning to technology-based judicial processes will represent a major change for stakeholders, including lawyers and litigants. Although internet penetration is reasonably high, there is still a sizable population which is not comfortable using technological applications. Viewed in the context of the justice system, it is imperative that a user-friendly technology design is adopted with the aim of bringing maximum stakeholders on board. 

There are concerns that virtual courts will compromise privacy of data as well as confidentiality of discussions and court proceedings. In the current emergency necessitated by coronavirus-related measures, third-party software and applications are being used to avoid delays in hearing urgent matters. Similarly, third-party applications are being used for e-filing and document submission (non-evidence related). Along with being an unviable solution, third-party software is a major security risk for a critical function like the judiciary. All these issues have to be considered by the law ministry and the National Informatics Commission (NIC) while developing a new platform for India’s judicial system. 

The biggest change in adopting technology will need to manifest at the human level. Litigants and lawyers are likely to resist such a significant change citing lack of computer literacy and a general apprehension of transitioning to completely new processes.

Video calling for personal communication has become a way of life, even in semi-urban and rural areas. It has been an important medium of being socially connected during the nationwide lockdown. The pandemic is an opportune moment to promote the benefits of using similar technological interventions in the delivery of justice. While it is understandable that computer literacy will be a tough challenge to overcome among the general public and even lawyers/advocates, there has to be a starting point some time. And that time is now.

Cultural considerations have always been the biggest barriers to any change affecting a large population, and the judiciary is no exception. However, global experiences during the coronavirus lockdown have demonstrated that virtual courts – comprising video conferencing, remote hearings and written submissions – have worked well and delivered justice in a fair and reasonable manner. It may be argued that remote hearings took place for cases which were not extraordinarily complex, but routine or simpler matters comprise the bulk of the justice system’s workload.

The digital transformation of the judiciary has important implications not only for the current emergency but also for clearing the significant backlog of cases which the judiciary is burdened with. Technology may, in fact, be a catalyst for simplifying processes and making manual processes redundant. It will make justice accessible and affordable to a large section of the population and help in overcoming physical and logistical barriers which prevent many litigants from seeking justice.

Virtual courts and online hearings will become a permanent part of the new normal. This is not to say that physical courts will completely vanish. The future scenario will be one where virtual and physical courts co-exist, with technology transforming the entire judicial process.

It is now certain, the virtual courts will be a permanent fixture in India’s judicial system. Some critics oppose such a move, reasoning that virtual courts go against the principle of open court proceedings. The Supreme Court recently addressed this issue by comparing both types of courts. It noted that “the traditional Open Court System, in its physical manifestation, and new age Virtual Court System are not antithetical to each other,” and both could “definitely co-exist.” The apex court emphasized that courts of law, as public places, were different from public parks or other similar public spaces.

During the ongoing pandemic, the Supreme Court has published decisive guidelines and set a strong precedent for the adoption of technology and making virtual courts a permanent part of the judiciary. It is hoped that this momentum will not die down after a few months. Online hearings and digitalization of legal processes entails long-term benefits for all stakeholders. Of course, there are many hurdles to be crossed in terms of infrastructure and technology networks, privacy and confidentiality, and most importantly, changing people’s mindsets.

Proper training and awareness, a user-friendly technology platform, seamless connectivity and strict security protocols will lead to a much-needed transformation of judicial processes. Virtual courts will speed up timelines, reduce costs for litigants and take care of the bulk of work which burdens the judiciary. For complex and sensitive cases, physical courts will continue to function as before. A combination of virtual and physical courts will define the judiciary moving forward, and if such an approach is not taken, it will result in the loss of a significant opportunity.

The author is a Supreme Court Lawyer