Author: Ankita Maji
There has been a gradual shift to incorporate the benefits of technology in a number of fields, but the entire judicial process of delivering justice remains unchanged. The past attempts at reform have been sluggish and reluctant at the best. The greatest dilemma that still remains is the inability of conventional courts to deliver justice in a speedy and timely manner, which defeats the very purpose of justice. The pandemic situation that hit the world in 2020, has however, forced the courts to catch up with the technological progress globally.
In India, the Kerala High Court created history on March 30, 2020 as it conducted live streaming of the proceedings of a case through video conferencing. Also, the Supreme Court on 13 May 2020 passed the decision to relax the dress code for the advocates who are to appear before the Court through video conferencing. While exercising its plenary powers under Article 142, it has directed all High Courts to come up with a mechanism of effective use of technology during this pandemic. The judicial systems of other countries like Australia, Brazil, and United Kingdom of Canada have also started hearing matters of urgency through video conferencing. Recently the apex court of US conducted its very first remote hearing through the medium of telephone.
With the legal system and governments trying to grapple the crisis situation and the unforeseen challenge that we are faced with, a major question has been raised by Richard Susskind, in his book Online Courts and the Future of Justice- ‘Is court a service or a place?’, which requires a more deliberate discussion now, more than ever.
CONCEPT OF VIRTUAL COURTS IN INDIA
The concept of virtual or e-courts refers to the elimination of litigants or lawyers in courts and adjudication of cases online. An electronic court is a location where matters of law are decided upon, in the presence of a Judge, in a well-developed technical infrastructure. Virtual courts promote an ‘online environment’ through Information and Communication Technology (ICT) and internet which aims at providing an affordable delivery of justice in a cost effective manner along with minimal paper filings.
The "National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian Judiciary -2005" was formularised by the e-committee of the Supreme Court of India, which was formed in 2004, in order to draw up an effective plan for ICT efficacy of the judiciary, under the Chairmanship of Chief Justice of India. his project was first approved by the Cabinet Committee of Economic Affairs (CCEA), with the latest version of the same being approved in September 2010. This is being implemented by the National Informatics Centre (NIC) and will allow the courts to deliver justice to people through an online mode. Also, an E-Court Integrated Mission Mode Project as launched by the government, which provides for upgrading ICT infrastructure and facilities to courts all around the country including district as well as subordinate courts. Phase 2 of this project is currently in progress, which aims at creating gateways for e-filing and e-payments, digitisation of documents and centralised system of filing. The main question that arises is whether these changes could be incorporated as the general practice of the Courts, and are these changes sufficient to tackle the ever increasing pendency of court cases?
ACCESSING JUSTICE IN THE BACKDROP OF COVID 19
Courts all over the world continue to be overburdened with pending litigations with around 3.5 crore cases pending in courts all over India, which is likely to experience a steep rise in view of the pandemic situation.
The judiciary in India has shown a very quick response in adapting the ‘work from home’ model recently. The apex court has issued guidelines for virtual hearing and directed all High Courts to take steps for implementing the same for video conferencing for themselves as well as the subordinate courts. This in turn will help the courts in becoming proactive and ensure that public service is not ‘quarantined’ during this period of lockdown.
Video conferencing apps such as Zoom having password protected meetings are being used with the ultimate goal of live streaming of proceedings. It is rightly remarked by the Chief Justice of India-“Even though these measures are meant to temporarily tide over the Covid-19 crisis, they are in all probability here to stay.” This access to justice has proved the fact that court is a service and not a place. Lawyers and litigants are not required to be physically present in court, which saves time as well as cost. Online filing of cases and exchange of documents in hassle free manner leads to potentially quick disposal of cases. According to the guidelines, written submissions are required before the hearing for reducing the time spent in oral hearing so that the court can direct its attention directly to the matter in issue. Also the evil practice of delayed hearing on account of adjournments can be avoided to a much larger extent, as now there cannot be any major excuse for litigants not being able to attend the court proceedings. However, the most important part of shifting into a permanent system of online hearing is the fact that justice will no longer remain a reclusive virtue. A system of transparency in the functioning of the judiciary will make the litigants as well as the judge more accountable. It highlights the principle of Open Court which states that the public should have free and fair access to all court proceedings. Keeping in mind the freedom of speech and expression of the press, this principle guards a number of rights of the people as reporters, spectators or partakers. The Apex Court has in case of Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Ors, upheld the importance of Open Court principle and said that open court public trial is essential for a fair and just administration of justice, and trials which are subjected to public scrutiny acts as a check against judicial fluctuation and creates confidence among the public. This principle has the concept of Natural Justice as its core and is expressed under Section 327 of the Code of Criminal Procedure, 1973 and Section 153B of the Code of Civil Procedure, 1908 and Article 154 (4) of the Indian Constitution.
The fact is that Courts cannot go back to the pre-pandemic style of functioning because social distancing is here to stay for a considerable amount of time, and it is unimaginable that the existing infrastructure will be sufficient to implement these without any major changes. It is important to harness the power of technology to lower the burden and build an effective system to tackle the existing obstacles. This not only means shifting the entire legal system to an online mode, but overcoming the notions of the existing legal system and working towards an improved version.
CHALLENGES TO BE FACED
Despite of the promise of speedy delivery of justice to people, there might be a section of people who will be left behind. Those people who do not have access to internet or lack knowledge of language or IT skills or people who simply are not willing/are sceptical about the functioning of courts online are the ones who will have to face major challenges.
Also, with the increasing use of technology, cyber security threat will also be an issue of concern too. Even though remedial steps have been initiated for addressing such problems, along with the formulation of Cyber Security Strategy, these are mere guidelines, and the actual implementation of the same remains to be seen.
Maintenance of e-court records will also be a challenge, as legal assistants are not well trained for handling online records or documents and making it easily accessible to the litigants as well as the court.
Issues such as insufficient infrastructure and poor connection or non-availability of electricity could be obstacles in the path of accessing justice. Also, setting up of e-courts will be in itself a major task, and will be a cost-intensive affair as it would require the latest technology and expertise. In the long run, e-courts may be faced with the issue of insufficient funds.
Lack of co-ordination and communication between different departments, lack of technical expertise in courts and among litigants and the acceptance on the part of the people are also multiple challenges which may arise.
Testimonies and evidences online lack the necessary tension that one finds in a courtroom, and may often lead to false testimonies and statements by the accused or witnesses. The implementation of online proceedings also questions the lack of confidence that litigants may have in the system and the concept of identity theft may also come into picture.
CONCLUSION: THE WAY FORWARD
If the e-court project is implemented, it would surely go a long way in terms of saving costs and time for future litigation in India. The government is making efforts for establishment of e-courts all over the country. This way, access to proceedings of any case or retrieving any documents will be made easy just with the click of a button. It is therefore important to draw up a well-defined framework to provide a concrete direction to this scheme in India.
Training sessions for lawyers as well as judges, and making a user friendly e-court mechanism will encourage and help in easy access to justice. It is also important to provide dedicated efforts in the training of personnel for handling of e-data, which include record of orders, summons, bails, e-filings etc. The security of e-courts should be prioritised and steps should be taken towards creating a strict security system for accessing information. Upgrading the present infrastructure will be a step in this direction. It is necessary for the government to develop the infrastructure in order to support this mechanism.
The Legal Services Authorities Act, 1987 and the officials functioning under them can play a huge role in establishing a system for aggrieved parties, to file an online complaint with the Legal Services Authorities who can guarantee accountability and its effective implementation.
The e-courts can be responsible for the cases filed digitally while another set of courts can focus on getting rid of the pending cases till date. This will in turn reduce the burden and ensure a smooth functioning of the judiciary.
The adversarial system of India, when shifted to an online scenario is expected to face problems, be it digital illiteracy or lack of willingness on the part of citizens to accept the change. However in the long run, chances are that the advantages of accessing online justice are likely to outweigh the disadvantages that may be faced during its early stages of implementation. Justice cannot be delayed and embracing the change is what is needed at present. The judiciary has been constantly evolving, and this pandemic has acted as a catalyst for transformation of the justice system.
 Richard Susskind, Review of Online Courts and the Future of Justice by Richard Susskind Oxford University Press, 2019, International Journal for Court Administration 11(2)
 Richard Susskind ,Review of Online Courts and the Future of Justice, Oxford University Press, 2019,Colin Rule, https://www.iacajournal.org/articles/10.36745/ijca.346/  E-committee Newsletter, Supreme Court of India, https://main.sci.gov.in/pdf/ecommittee/eCommittee,2016  E-Court Mission Mode Project, https://districts.ecourts.gov.in/nalanda/e-court-mission-mode-project
In Re: Guidelines for Court Functioning through Video Conferencing during Covid-19 Pandemic, Suo Motu Writ (Civil) no. 05/2020 Zarir Bharucha, India: India's Embrace Of Online Courts, https://www.mondaq.com/india/operational-impacts-and-strategy/969822/india39s-embrace-of-online-courts  1967 AIR