On April 6, the Supreme Court of India (SC) announced its “Guidelines for court functioning through video conferencing during the COVID-19 pandemic”, for the virtual court system that kicked off on March 23. The Apex court recently decided to continue with this system to provide justice in these challenging times. Branded the ‘Virtual Court System’, the court decided to hear urgent matters only, with advocates joining through video from their homes and offices. Facing some objections from lawyers ill at ease with this alien system, the SC has begun considering a shift to physical hearings, according to some reports. This experiment, however, opened up a larger conversation about the future of the judicial system. Are Virtual courts the answer?
For the last decade, various countries have invested in digital infrastructure for remote hearings, and the pandemic has only bolstered their attempt to reform the judicial system. The Singapore High Court had earlier included provisions for virtual courts and adapted this further to meet current needs. The familiarity with the system made the court feel secure when issuing a death sentence for a drug trafficking charge over a Zoom video call. Similarly, Nigeria followed in declaring capital punishment virtually. Courts in Germany, Australia, The United States, Turkey, Netherlands and other countries have also moved online, with most of them hearing only urgent matters.
In India, the Supreme court has reportedly had higher productivity during this pandemic compared to other apex courts around the world, hearing 14 times more cases than the US Supreme Court. This goes to show that the Indian judiciary is quite adaptable to a virtual court system, considering that even photography was disallowed in courts, until provisions for live streaming of cases came about. However, the courts have often expressed their reservation in going completely digital, and rightfully so. There are still questions as to whether the Indian system is ready for a complete overhaul and even more questions about whether digitisation would threaten the fundamentals of the Common Law system.
To answer some of these questions, we must first consider the difference between virtual courts and audio and video enabled courts. The latter incorporates technology into the pre-existing system of physical courts. This has undeniable benefits for administrative aspects of law firms as well as courts. When used effectively, time and energy can be saved through the automation of repetitive tasks, electronically generated court dates for physical testimonials, audio and video testimonials, e-filing of cases, and various other procedures. Indian courts usually have low budgetary allocations (usually, around 0.2% of the GDP), and this would help to optimise the available resources and would need a (largely) one-time investment.
Indian courts have already taken steps towards going paperless, one of them being the Integrated Case Management System launched by the Prime Minister Narendra Modi in 2017. This, along with digitisation of more than one crore (10 million) case files, was said to greatly reduce the workload of courts and enable easy access to cases. E-testimonials could be life-saving in sensitive cases, where witnesses’ lives could be in danger, in reference to permission granted for the same by the SC in a 2018 case. Though we do not have widespread authorisation for e-testimonials yet, the wave of digitisation makes that development certainly foreseeable.
On the other hand, virtual courts are almost entirely different. It does not include a physical court system and cases would be handled online entirely. At face value, the shift in modus operandi looks straightforward. However, a widespread roll-out would be faced with the same reproach being expressed right now. The principle of Open Court, which originated from the 1215 Magna Carta, holds that universal access to judicial proceedings is imperative to just trials. This problem could have been dealt with, had India had respectable network and internet coverage. Rural and isolated areas would most benefit from virtual courts. A report by the Internet and Mobile Association of India found that rural India has 10% more internet users than urban India, but the quality of the connectivity invites some hesitation. With our current infrastructure, this system would not be sustainable, however, if strengthened well enough, access to justice could increase exponentially.
Additionally, there are current logistical issues with the way cases are carried out. Only one lawyer can speak at a time and some might not get turns at all. Verification of evidence and making sure that it is authentic would also pose a great challenge. As stated in a publication in the Utrecht Law review, there is certainly an “irreducible human element” to the legal profession and some might be unnerved by getting a judgement from a computer screen, let alone consider the scarcely spoken about (and currently far-reaching) advent of robotic and application-based interpreters of the law. Virtual courts are a lot closer to reality right now.
Long case-resolution times are often spoken about in most conversations surrounding Indian courts. There are 3.53 crore pending cases in India, which will take just about 360 years to clear at the current pace of case-resolution. A case, on average, spends about 6 years in subordinate courts, 10 years, if you are considering an appeal. Case backlogs and crowded courts block access to timely justice. Digitisation would help judges and lawyers sift through thousands of pages of files and make conduction of cases more organised and methodical. It would also reinforce the faith of foreign investors who typically have qualms about the uncertain fate of cases once they enter the Indian legal system, and hence encourage investment. Faster clearing of cases is one of the best arguments to support the e-court system.
The High Court of Judicature at Hyderabad launched the country’s first e-court in 2017, and similar courts for dealing with smaller issues were installed in Chhattisgarh, Karnataka, Delhi and in the Punjab and Haryana High Court, where traffic challan (invoice) cases of the entire state were handled. The e-committee of the SC had started a project for computerisation of Indian courts, but for lack of urgency, this matter hadn’t been taken up with vigour needed for mass digitisation. Things will change now. The First International Forum on Online Courts, in December 2018, noted that courts are going online and will likely stay there. In one of his statements, Chief Justice SA Bobde stated his belief that the Indian courts were unquestionably going down this path saying, “There’s no going back.” We’re already taking steps toward a future where we may never have to meet an arbiter in our case real life.
It is quixotical to think that all or even most of our problems will be solved by technology. Each alteration to the status quo will bring a host of newer problems, even if the introductory changes were meant to be reformatory. In one hilarious incident (if not an indication of issues with enforcing rules and SOPs), a lawyer presented himself in a vest for a bail plea, and another, lounging on his bed in a t-shirt, forcing the SC to issue orders for dress codes. Another hurdle would be revamping legal education to train young lawyers and ageing legal professionals to adapt. However, with an increasingly overburdened legal system, it is imperative to welcome any changes that might take that pressure off. So, as long as the essence of common law, equity of justice (and the improbability of robotic lawyers (literal ones, of course)) are guaranteed a place in the conversation around digitisation, we could be looking at long-awaited restructuring.
Utrecht law review:
Schäfke-Zell, W. and Asmussen, I.H., 2019. The Legal Profession in the Age of Digitalisation. Utrecht Law Review, 15(1), pp.65–79. DOI: http://doi.org/10.36633/ulr.454
The Indian Law Watch: https://indianlawwatch.com/practice/indias-preparedness-for-virtual-hearing/