Covid-19 or the Corona virus as it is commonly called has not only played havoc in the lives of people all over the world but it is also going to have a profound effect over, and for that matter had already changed the way how countries and communities conduct their lives and businesses hence forth.
Since, the virus spreads more rapidly amongst congregation of people and nobody can predict where the virus is lurking around or who the carrier is, with many carriers having found to be asymptomatic, usage of masks and social distancing has become mandatory and a way of life.
The world has adapted to this new scenario and economic activities in the corporate world are being conducted by working from home, conducting meetings through Skype and conferences by various applications like Google Meet and Zoom App etcetera.
With the advent of the Internet, there have been numerous technological innovations and developments penetrating every domain of society, simultaneously offering vast improvements in communication and information, while presenting challenges with protecting privacy and sensitive information. At the same time, the pace of change in life is quite rapid – access to information and the need for efficiency have motivated many institutions, in the private and the public sector to transfer at least some of their activities and services to websites they manage. These activities have contributed both to social and economic connections, primarily saving time and money; existing backlogs have been reduced, processes have been streamlined, and wait times have been minimized. Using a website is accessible, convenient, and user-friendly. With the push of a button and from the convenience of one’s home, it is now possible to pay most bills, including electric, water, and property taxes. One can even buy airplane tickets online at a discount. The Internet provides many and sundry services. The inherent advantage in moving certain activities online has not escaped the attention of the courts. It is no secret that justice systems in many countries are overburdened by a backlog of thousands of suits filed annually.
The COVID-19 pandemic has had a significant impact on the legal fraternity of India as well. The spread of Coronavirus and the nationwide lockdown has prompted the Supreme Court and various High Courts to conduct judicial proceedings online. The Supreme Court has detailed the measures to ensure continuity of administration of justice during the COVID-19 pandemic. IT infrastructure has been installed to aid the proceedings that will take place in the virtual presence of the clients and their legal representatives. Even though the courts have stopped advocates from coming to court, important matters effecting the life and liberty of citizens are being adjudicated by courts using video conferencing from virtual court rooms.
II. Pros and Cons
Clearly, having video and audio enabled hearings is beneficial as it saves significant court costs in terms of building, staff, infrastructure, security, transportation costs for all parties to the court proceedings, especially transfer of prisoners from jails.
The use of video and audio enabled hearings have also faced significant legal and practical problems including admissibility and authenticity of the evidence received through the video and/or audio transmissions, the identity of the witness and/or individuals subject of the hearings, the confidentiality of the hearings.
The practical issues have been wide ranging; they include poor quality of internet connection, poor and outdated the audio and video equipment, power cuts, inability to establish connection at the agreed time, inability for multi-party to partake especially involving interpreters and vulnerable witnesses.
III. Virtual Courts in other Jurisdictions
Many other countries have adapted the judicial procedure to allow virtual court proceedings and some of them even have been using video and audio enabled hearings for the past many years.
In United Kingdom, Recent government announcements have stressed the vital importance of the continued administration of justice in England and Wales and the courts continue to operate, though with adjustments.
Most civil court buildings currently remain open, but civil hearings are now being conducted remotely wherever possible. Physical hearings are only to take place if a remote hearing is not possible and suitable arrangements can be made to ensure safety. Civil courts have long permitted remote hearings in appropriate circumstances, but a new “Protocol Regarding Remote Hearings” was issued on March 20, 2020 to provide further guidance, including on the forms of remote technology offered and use of electronic documentation. The courts’ technological infrastructure is also being rapidly up-scaled to support expanded utilization of telephone, video and other remote technology (including Skype for Business, Zoom and BT conference call). On March 24, 2020, the Supreme Court conducted its first ever remote hearing. The Supreme Court building has closed and it will be hearing all cases and delivering judgments through video conferencing until further notice.
In United States of America, The Coronavirus Aid, Relief, and Economic Security Act, Public Law No: 116-136 (the CARES Act), signed into law on March 27, provided more than just the fiscal stimulus, importantly Section 15002 allows for the use of videoconferencing in certain* judicial matters. USCourts.gov has a page dedicated to Judiciary Preparedness for Coronavirus (COVID-19) which is updated frequently and which includes a link to various federal courts to assess the individual steps being taken by the respective courts. The Supreme Court, in keeping with public health precautions recommended in response to COVID-19, postponed all oral arguments currently scheduled for the March and April sessions and intends to examine the options for rescheduling those cases before the end of the Term. The May session is due to see the virtual hearing of a limited number of previously postponed cases with Justices and counsel participating remotely. The US Court of Appeals for the Federal Circuit issued an advisory that it would hold all oral arguments telephonically during the court’s May 2020 session. Lower courts, like the United States District Court for the Eastern District of New York have issued a number of administrative orders regarding the administration of justice. One such Order encourages judges to conduct proceedings by telephone or video conferencing where practicable.
In France, the French courts have been closed since March 16, 2020 with the exception of essential litigation, including litigation relating to “correctional hearings for pre-trial detention and judicial review measures,” “immediate appearances,” “appearances before the investigating judge and the liberty and custody judge,” and “hearings of the sentence enforcement judge for emergency management.” Apart from these essential matters, hearings have been postponed.
In Germany, the courts continue to operate albeit with reduced court staff. In-person hearings, however, have been postponed for up to six months. The specific handling of these delays is left to the courts resulting in some regional differences. Generally oral hearings are only taking place for urgent matters. While German civil procedure law makes provision for the use of video conferencing for hearings it has seldom been used. This is in part because the courts are not equipped to do so, and further because this provision is not applicable if the parties or witnesses are located outside of Germany.
In Singapore, before COVID-19 hit Singapore, the Singapore courts had an existing practice in place that enabled lawyers to make applications by video link. The Singapore court is also quite used to parties or witnesses appearing in court by way of video link. Insofar as the Supreme Court is concerned, hearings are continuing. Since the spread of COVID-19, the Singapore Court has implemented a justice continuity plan by dividing the judges of the High Court into two separate teams, Team A and Team B. The High Court has adopted arrangements such that no judge from Team A will be in physical proximity or in close contact with a judge from Team B. As a result of this, there have been court proceedings with a bench of three judges where one judge attends by video link. For example, in situations when two judges are from Team B and one judge is from Team A, the judge from Team A attends by video link. In short, whilst the Singapore courts have taken measures to implement social distancing, these measures are an extension of the pre-existing use of attendance by video link prior to COVID-19.
IV. Challenges to Virtual Courts
Some enthusiasts, policy makers and other influencers want court hearings to be conducted via video conferencing even after normalization of the situation due to availability of new technology and to provide access to justice for litigants staying in far flung areas. Whereas there are others who are of the firm opinion that video conferencing cannot replace open court hearings since, the fundamental principle in the administration of justice is that courts must be open to the public.
A. Annihilating the Open Court principle
The Open Court principle carries presumption that the public (including media) has free and fair access to court proceedings. With its foundation in freedom of speech and expression and freedom of the press, the principle protects a wide scope of activities enabling the public to attend court hearings as a spectator, reporter or partaker.
The Supreme Court reaffirmed the importance of the Open Court principle in Naresh Shridhar Mirajkar and Ors. v. the State of Maharashtra and Ors, 1966 SC 0082, stating,
“… Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice.”
Given its vast umbrella, the principle is better appreciated as a notional bridge between the public and courts, built on broader values. Article 145(4) of the Constitution of India provides that no judgment shall be delivered by the Supreme Court other than in open court. It further, provides that no report shall be made under Article 143 other that in accordance with an opinion also delivered in open court. Section 327 of the Criminal Procedure Code and Section 153-B of Civil Procedure Code also mandates open court hearings in all criminal and civil cases.
It preserves the rights to freedom of speech, expression and press provided under Article 19 of the Constitution of India. It is only in “special and limited cases as prescribed by law” or under the Court’s authority to regulate its own proceedings that these central tenets of justice can be deviated from, only to the minimum extent required.
However, the Supreme Court and various other High Courts across the country are adjudicating on extremely urgent matters amidst a pandemic. There is an indispensable requirement to enable public access to such proceedings, and the lack of the same is raising concerns about the future of virtual courts in India.
The initiative has been welcomed with open arms by stakeholders of the legal fraternity, which unfortunately includes only certain privileged and technology-aware class of lawyers, and not to the entire brethren.
The Open Court principle finds its origins in the much-revered 1215 Magna Carta. The specifically relevant portion is clause 40, which translates to
“To no one will we sell, to no one will we refuse or delay, right or justice…”
This term envisages not only the right of litigants to have their case resolved by Court, but also the right of the public to attend legal proceedings. This clause has laid the foundation stone for many subsequent constitutional provisions that articulate for open courts.
The commitment of judiciaries and legislatures across the globe to protect the principles of openness of courts is expressed in a variety of national and international legal instruments and decisions.
The Supreme Court of Canada, while asserting the significance of this principle in The Vancouver Sun v. Attorney General Canada, 2007 SCC 43, adopted a similar view of the Supreme Court in Naresh Shridhar Mirajkar. It had cogently stated,
“…openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts”.
One could also advert to the United Kingdom for suggestions on ensuring that the principle is not hindered. It is by way of the amendments brought in by the Coronavirus Act, 2020 that it was possible to broadcast the proceedings live to the public and even provide the transcripts online.
B. Other challenges to conducting proceedings online
1. Accessibility to Justice
Presumably, many would argue that online proceedings or virtual courts would grant wider access to justice as enshrined under Article 39A of the Constitution, because of the reach of internet in general. This would only be true if each and every person involved, i.e. the litigants, their advocates, judges, court staff, media and other persons from the public are given the means to engage and understand the proceedings.
However, statistics suggest that till 2017, nearly 72% of the population does not have any access to internet. Similarly, the internet connections that India does have are pretty unevenly distributed. While TRAI’s data recognizes that urban India has a high rate of subscriptions, rural India that stands only at 27.57of subscriptions per 100 people in 2019.
There’s also a yawning gap in connectivity between states depending on their network infrastructure and relative affluence. While Delhi and Mumbai assert about 2.20 crore and 1.5 crore Internet connections respectively, the complete North-East region has only about 4.3 lakh connections.
All in all, this data clearly highlights that while metropolitan cities like Mumbai and Delhi, which have continuous access to internet, might have persons who would be able to avail virtual court services, there is vast majority of citizens who would continue to suffer due to lack of basic infrastructure. It is pertinent to mention that there are still High Courts across the Country that face shortage of IT infrastructure. Inclusive growth demands that all social groups have equal access to the services provided by the State.
Additionally, we cannot lose sight of the fact that to make such drastic technological advancements, there has to be exhaustive digital literacy and training of all judicial officers, advocates, and other court staff including those in charge of filing and presenting files before the appropriate court. It is too far-fetched to imagine that every person involved in the justice system at all levels will be able to learn by themselves and adopt to the new medium within days or weeks.
2. Demeanor of witnesses and false evidence
Undisputedly, there is a significant difference between audio-video and in-court testimony, as the latter offers greater opportunity for the court to evaluate the witness by way of his testimony along with their demeanor.
Physical presence can serve important expressive functions, particularly during cross-examination, which ultimately leads to the discovery of truth. Evidence recorded by means of video conferencing may distort non-verbal cues such as facial expressions, postures, and gestures. For instance, delayed streaming may come in the way of detecting facial reactions. Even in a live stream that is working perfectly, merely the face of a person may overemphasize facial expression while leaving gestures partially obscured or out of view entirely.
John Henry Wigmore, a stalwart on evidence law, once said that “cross–examination is the greatest legal engine ever invented for the discovery of truth”. An inability to cross-examine properly inadvertently increases the risk of error.
Another issue that arises in recording testimonies and conducting evidence through video conferencing is that the litigant or the witness testifies from an environment they find most comfortable, either their home or office. Such scenarios lack the necessary tension that comes with appearances in the Courtroom, with the ceremonies such as taking the oath in physical presence of a judicial officer. In such circumstances, there are all the chances that in such proceedings, the parties testifying may feel free perhaps excessively so to testify falsely.
Section 159 of the Indian Evidence Act, 1872 permits a witness to refresh his memory during the time of examination with the permission of the Court, for a writing concerning himself. A situation where a witness is answering questions during his cross-examination with material placed before him will defeat the entire purpose of such examination.
3. Defeating the objective of punishment under Criminal law
Prescribing a universal definition of ‘crime’ has proven to be a fruitless exercise over the years. There is broad agreement to focus on the consequences following the act rather than focusing on the nature and types of crime to criminalize any conduct or action. Therefore, broadly, the deterrence, retribution, incapacitation and rehabilitation theories of punishment play a pivotal role in imposing criminal sanction.
However, there is also another very crucial element of imposing criminal sanctions, commonly known as the communicative theory of punishment propounded by Antony Duff. According to Duff, the objective of punishment is to communicate the consequences of the crime. Apart from communicating a response appropriate to the crime committed by the offender, it is also paramount to communicate the degree of censure and condemnation the crime deserves, to the public at large, which invariably will also add to the deterrent value of punishment and refrain people from committing the crime.
4. The threat of identity theft by either party or even by a third party
Until now, as standard practice, litigants typically identify themselves before their counsel prior to filing anything before the courts and the counsels are required to identify their clients. In addition, hearings are still held in court before a judge, so it is more difficult to steal another’s identity.
This concern increases when more activity is conducted online, without human supervision. The implementation of remote hearings begs the question of the lack of confidence litigants may have in the system and how many litigants would be agreeable to divulge such information on an online platform.
Predominantly committed for using personal or financial information for personal gain, there has been a fast rise in the number of Identity theft cases across the globe. The documents and information of a case are sensitive. In many cases, this information would be subject to protection if collected by other actors in other contexts. Therefore, protection of litigants, lawyers and judges from such illegal acts which are facilitated by the internet are of utmost importance.
From the reaction to this pandemic, it is clear that the future of the Indian legal system will see many changes, most significantly, the adoption of virtual courts for conducting proceedings. Beyond the praise for such quick adoption of virtual courts by the Apex Court and few High Courts, video conferencing raises some serious and complex concerns.
An adversarial system built and functioning on the concept of frontal cross-examination, when transferred to an online arena, is bound to encounter problems especially when majority of the citizens do not even have simple access to internet or any form digital literacy. The Court should adopt virtual courts fully only after there is sufficient infrastructure in existence to cater to the citizenry. Even then, it should be duty of High Courts to develop a desirable model based on simple procedure, keeping in mind the practice and procedures of the subordinate courts in mind.
However, it also necessary to state that in the long scheme of things, the advantages of virtual courts are likely to outweigh the disadvantages, provided infrastructure, training, and cogent mechanisms for recording evidence and cross-examinations are adopted by the Courts.
Thus, in the light of the above discussion, it is concluded that virtual Court hearings cannot replace ordinary/public court hearings for a permanent basis, but for the time being, i.e. during the pandemic conducting virtual hearings is a good measure taken by the judiciary, as it will facilitate and confer justice without the fear of being infected with the disease.