Interim report of the Standing Committee highlighted many challenges with Virtual Court Proceedings
Sai Krishna Muthyanolla
November 20, 2020
Court Proceedings have gone online across the world and also in India ever since the restrictions were imposed to reduce the spread of COVID-19. While virtual court proceedings have many advantages, there are many issues that need to be addressed to ensure they are accessible by all. The interim report of the Parliamentary Standing Committee highlighted some of these issues.
Functioning of the judicial system was severely impacted during the COVID-19 pandemic. Fewer physical hearings, adjustment of operations, and even closure of courts were inevitable to curb the coronavirus spread. All this meant that the backlog of cases increased, and this had a significant impact on the undertrials from the vulnerable groups.
It is not just in India but court systems across the globe were put to test. Courts in many countries went for online hearings. The Supreme Court in Ireland too sat using remote video technology for the first time.
Online hearing of court cases was implemented for the first time in many countries including India
In India, Virtual Court (VC) hearings were used in select cases even before the pandemic for the conduct of remand matters of prisoners to restrict their movement. The Supreme Court suspended physical hearings of cases since the latter half of March 2020 and rolled out VC hearings. The apex court granted legal sanctity to video conference on 06 April 2020 under Article 142 of the Indian Constitution which bestows the Supreme Court with the power to pass any decree to do ‘complete justice’. High Courts have also been given the authority to work out detailed modalities suitable for adopting video conferencing technologies. In other words, High Courts were permitted to alter the guidelines in accordance with their practices. The District Courts had to adopt to the mode of video conferencing as prescribed by the concerned High Court.
Standing Committee report on challenges faced in VCs was tabled at Rajya Sabha recently
The Parliamentary Standing Committee of the Department of Personnel, Public Grievances, and Law and Justice recently tabled an interim report on the functioning of ‘Virtual Courts’ which highlights the challenges faced and shortcomings in VC proceedings. According to the report, VC streamlines the entire proceedings as complaint and documents are filed electronically while evidence is submitted digitally, and judges decide cases online from the physical courtroom or from some other place and they hear arguments over video conferencing. But there are many challenges hindering its smooth functioning.
Digital divide is a major roadblock to accessing VCs
A representative of the Bar Council of India stated to the Committee that almost 50% of the lawyers, mainly those in District Courts, did not have any laptop or computer which hinders their participation in VC and e-Courts. The committee opined that digital divide in terms of access (to equipment and infrastructure), connectivity (access to broadband connectivity) and skill (knowledge and skills to use digital platforms) needs to be addressed. The Department of Justice told the committee that E-Seva Kendras have been established in all High Courts and one District Court in each state to aid lawyers as a part of a pilot project. Appreciating the efforts, the committee suggested to explore the viability of involving private agencies to help people in connecting with Courts.
Further, the Committee recommended the Ministry of Communication to fast-track the implementation of National Broadband Mission. The aim of the mission launched in December 2019 is to provide affordable and universal access of broadband for all.
Advocates should keep themselves updated with the changing times
The committee further stated that advocates should keep up with the changing times and that training and awareness programmes should be conducted in all court complexes including Subordinate Courts to impart the skills required to handle digital platforms. Introduction of computer related courses in Law Courses will equip budding lawyers with the necessary knowledge and skills.
Another major issue during virtual hearings as highlighted in the report is the poor digital connectivity. Technical glitches plague VC hearings, especially in peak hours. Courtroom technology’s quality needs to be improved using customized software and hardware. Also, the Department of Justice was recommended to provide WAN connectivity and superior quality videoconferencing facilities to all Court complexes under the e-courts project as per a set timeline. The committee also recommended the government to explore the feasibility of collaborating with private sector if required.
Principle of Open Courts is not complied with when hearing cases online
A representative of the Bar Council expressed concern over the opaqueness of VC hearings as it conflicts the spirit of Open Court Principle which requires that court proceedings be open and accessible to public and media. Efforts taken in countries like England and Canada to adhere to the principle were cited as examples by the body. However, this is not the first time that the Open Court Principle has been discussed.
The apex court reaffirmed the importance of the principle and observed that live streaming of Court hearings is an extension of the same as per the judgements in Naresh Shridhar Mirajkar and Others v. State of Maharashtra and Others (1966), Swapnil Tripathi v. Supreme Court of India (2018), and Indira Jai Singh vs. Secretary General of Supreme Court & Ors (2018). Even in India, the Madras High Court permitted live streaming of contempt proceedings against lawyers in 2015 and the Calcutta High Court permitted live streaming of hearing in a case involving the Parsi community in 2020.
The Committee recommended that the Court proceedings be live streamed to reinforce public faith in judiciary and recommended livestreaming of important cases which have a potential impact on public. The committee felt that these will be a step towards upholding transparency. Furthermore, crowding inside the court would also be reduced with live streaming.
Data protection and privacy are a cause of concern globally
The issues of data protection and data privacy were also raised in the report. This is an issue not just in India but worldwide too. Third party software is being used in India for VC hearings which are susceptible to hacking and manipulation. Ministry of Law and Justice and the Ministry of Electronics and IT were asked to look into developing a new platform for Indian judiciary. They also added that private companies may be roped in for developing AI systems to support documentation and use of graphics.
Sluggish progress in government project for computerizing Court proceedings
An Evaluation Study of e-Court Integrated Mission Mode Project commissioned by the Law Ministry noted that the infrastructure of Courts in the country mainly in rural areas, is poor. The study also found that the digital connectivity is poor thereby making it difficult for them to adapt to the VC system. Since the 1990s, computerization of some of the processes of the judicial system is being done to improve the efficiency of the system.
e-Courts Integrated Mission Project was launched in a phased manner to extend services to all key stakeholders-including the judiciary, district and subordinate courts, and citizens, litigants, and lawyers by enabling all District and Subordinate Courts through ICT. For this, the Courts would be provided with Computer Hardware, LAN, and Broadband connectivity among others. The first phase was implemented between 2007 & 2015 and since 2015, the second phase is in progress. The Committee expressed its discontent in the sluggish progress of the same and hence called for revision of the policy.
Only about 73% of the funds released have been used by HCs in more than 4 years
According to a parliament response in September 2020, Rs. 1760 crores were allocated for the second phase of the project and the government had released Rs.1459.52 crores to various organisations. In 2020-21, Rs. 68.33 crore has been released. As on 31 August 2020, a sum of Rs. 1077.76 crore has been released to all High Courts of which Rs. 790.04 crore has been utilized. On an average, only about 73% of the funds released to High Courts have been utilized so far. The utilization of these funds ranges from 96% by Punjab and Haryana High Court to nearly 35% by Gauhati (Arunachal Pradesh). Punjab HC is the only High Court to have utilized more than 90% of the funds released. Meanwhile, Delhi HC and Calcutta HC have utilized only about 43% of the funds released so far.  The number of High Courts by percentage of fund utilized is given in the table.
Though convenient, VCs have their own shortcomings which need to be addressed
To sum up the standing committee report, VCs are convenient and help in faster clearance of cases and overcome the restrictions imposed during a pandemic like COVID-19. It also brings down the expenses of commuting and paperwork, and saves a lot of time, thereby making it an affordable and accessible platform not just during the pandemic, but in the future as well.
However, starting from the ground level, there are many challenges that need to be addressed to ensure a standardized and secure functioning of VCs and this isn’t as simple as it might sound. Even though the Minister of Law and Justice has also pushed for VCs, there are many challenges involved.  For instance, there is uncertainty on whether the person is being coerced to speak. Body language and other non-verbal cues may not be observable in VC hearings. Reportedly, there are even instances of judges and advocates not maintaining the judicial decorum when working outside Courtrooms. All these issues should be looked into in addition to addressing the infrastructure, connectivity & skill gaps, before making VC hearings a permanent fixture.
Featured Image: Virtual Court Proceedings