Litigation and virtual courts: Prospects and Challenges

The year 2020 has posed a lot of challenges that have rooted in the well known Corona Virus
pandemic. The world is suffering and a loss of life and bread has become a diurnal phenomenon.
Manpower rationalization, pay cuts, closure of business houses, disturbance in economic chains,
non-performance of contracts, and the list goes on. This will eventually add up to the already
existing cases in the courts and is likely to burden the judiciary. Consequently, the pandemic has
had a potential impact on the legal framework of the country. An efficient approach is the need
of the hour to help the sector subsist. 
On the other hand, technology is now being used as the sole mean of carrying out the work that
has been done socially in offices for centuries. The courts have shown a proactive approach to
this uncalled situation and have started virtual court hearings of important and urgent cases. But
to make it work so that everyone seeking justice has to have access to proper internet
connections and bandwidth. To participate in online proceedings, the required minimum
speed is 2mbps/sec & this speed is available only with 4G & as per TRAI data till 2019,
only 436.12 million of users having access to 4G services and considering total population,
the statistics suggest that till 2017, nearly 72% of the population does not have any access
to the internet. Similarly, the internet connections that Indians 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 27.57 of subscriptions per 100 people in
2019. The statistics clearly show that though courts have to make way for the virtual
proceedings, not many of the people have access to the same. In the present circumstances, the
judicial and quasi-judicial bodies must take steps not only to remain operational but also to
achieve maximum functionality at the earliest. The virtual court system can be of great assistance
in achieving this goal.
The Importance and Legality of Open Courts
The Black’s Law Dictionary defines “open court” as a court where the public has a right to be
admitted. Now many of the litigants have suggested that proceedings through video conferencing
should be continued even after the pandemic ends but some are of the strict opinion that it cannot
replace open court hearings as that is a fundamental principle that courts must be open to the
public.
  Article 145(4) provides that no judgment shall be delivered by the Supreme Court save
in open Court, and no report shall be made under Article 143 save in accordance with an
opinion also delivered in open Court. It further, provides that no report shall be made
under Article 143 other than in accordance with an opinion also delivered in open court. 
 Section 327 of the Criminal Procedure Code & Section 153-B of the Civil Procedure
Code also mandates open court hearings in all criminal and civil cases.
The principle of open courts was originated in the English Law and was known to be formed
by Lord Chief Justice Hewart to mean justice should not only be done, but should manifestly and
undoubtedly be seen to be done. In the case of, R. vs. Secy. of State for Foreign and
Commonwealth Affairs Lord Judge, C.J. drew a link between open justice and democratic values
and held that the principle of open justice represents an element of democratic accountability and
the robust manifestation of the principle of freedom of expression. Ultimately it supports the rule
of law itself. In the case of Naresh Shridhar Mirajkar vs. State of Maharashtra, wherein the
High Court passed the order prohibiting the publication in newspapers of evidence given by a
witness pending the hearing of the suit to keep a check on judicial order, the Supreme Court
overturned the said order and held that it was a well-settled principle that all cases brought before
the courts, whether civil, criminal or others, must be heard in open court.
The Court further elaborated that public trial in open court is essential for the healthy,
objective and fair administration of justice. The court held that trial under 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 in the administration of justice.
The court was of the opinion that public confidence in the administration of justice is of
such great significance that there can be no two opinions on the broad proposition that in
discharging their functions as judicial tribunals, courts must generally hear causes in open
and must permit the public admission to the court-rooms.
In Virtual Courts, the links are made available only to the advocates appearing in that
particular matter. Besides, some courts restrict the number of links that are forwarded to
the advocates and litigants. The public has no access to the hearings. This also affects
several public interest litigations. Many court circulars say the recording of the hearing is
strictly prohibited. It destroys the open court principle and is to result in a big threat to
democracy as the judiciary is an independent body and without a check , it gains absolute power
and that is concern worthy.
Indian Court orders 
In this backdrop, the directions passed by the Supreme Court, on 6 April 2020, for the
conduct of court proceedings across the country via video conferencing (VC), during the
period of the outbreak of the COVID-19 pandemic are a welcome step. Broadly, the
Supreme Court has directed as under:
 All High Courts shall ensure functioning of the judicial system through use of VC
technologies and to this end, shall decide the modalities for use of VC technologies
after considering relevant factors (such as peculiarities of the judicial system in
every state as well as the dynamically developing public health situation).
 District Courts in every state shall adopt VC technologies prescribed by the
appropriate High Court.
 Courts shall make VC facilities available for those litigants who do not have access
to these facilities, including by appointment of advocates as "amicus curiae" and
making VC facilities available to such advocates (if necessary).
 Till such time as the High Courts frame rules in this regard, VC technologies shall
primarily be used for hearing arguments, both, at the trial as well as appellate
stages. However, evidence shall not be recorded using VC facilities except with the
parties' mutual consent.
 The directions shall remain in force till such time as further orders are passed by
the Supreme Court.
On 7 April 2020, the High Court of Telangana passed directions for conduct of hearings via
video-conferencing in the state during the period of COVID-19 lockdown. It is expected
that other High Courts as well as tribunals will adopt similar measures in the coming days.
Separately, on 8 April 2020, the Bombay High Court issued special directions in connection
with live-streaming of matters listed for hearing on 9 April 2020 before His Lordship the
Hon'ble Mr Justice G S Patel. Previously, the Kerala High Court had live-streamed its
hearings for the general public via Zoom App.
The decision to make proceedings being conducted in the time of COVID-19 accessible to
all via live-streaming is a welcome move. In doing so, our courts have sustained a primary
principle of the justice system, namely, justice must not only be done but seen to be done.
We will update this section as and when fresh directions/guidelines are issued by judicial
and quasi-judicial bodies regarding conduct of court proceedings virtually.
Virtual courts and the problems:
 Accessibility to justice:
Being a developing country, India has courts in places where internet connections seem like a
dream. Though, internet connectivity is the new normal people cannot afford it and most of the
population does not know how to operate such systems. This results in discrimination and loss of
employment in such desperate times. If availability of justice is not accessible to all, then this
calls for attention. Some lawyers are concerned about their livelihoods, claiming that virtual
courts are currently accessible only to a few. In the near present, some lawyers have written to
the Chief Justice of India to return to physical hearings and the Bar Council of India, claims that
approximately 90% of lawyers and judges in the country are unaware of the technology.
India is far behind in defining virtual courts. On the other hand though there is urgency in
matters, and changes are necessary, the citizens have to be patient as the lawyers as well as the
judges are trying to acquire them gradually.
 Fair trail
Physical hearings cannot be done away with and virtually the epitome of justice cannot
be reached as the court room has that sort of environment, that really affects the behavior
of the parties, their facial expressions,etc. Internet glitches really take the essence of the
hearing away and the trail might not be able to administer justice in such a scenario.
 Health

Measures that Courts ought to take

a) Issue notification/s to sufficiently deal with the issue of notarization of pleading/s, e-filing of
pleading/s without annexure/s etc. to aid parties to file pleadings to stop limitation
b) Have a set of clear guidelines to effectively deal with such situation/s in the future which
would encompass matter/s such as attendance of staff, moving of urgent matters, hearing of
urgent matter/s only through video conferencing.
c) Digitize its processes to aid remote functioning (including mandatory and exclusive e-filing.
d) Guidelines for effective processes in criminal matters, especially those requiring production of
the accused.
e) Setting up of appropriate infrastructure to enable e-hearing, filing and remote functioning of
the court in such scenarios
f) Effective training should be imparted to the staff to enable them to function remotely in such
scenarios.
CONCLUSION
Whilst restricting the hearing of matters to urgent ones is a short term measure that can be
adopted, should such a situation continue, it is likely to add to the already heavy pendency list of
the court/s and effective permanent solutions to deal with such situations are necessary.
If the courts/Advocates/Litigants alike become accustomed to remote hearing/s (as now being
attempted by the Supreme Court), not only would the same save immense costs for litigants (in
terms of having advocates having to travel from one city to another) it would also reduce the
time invested by Advocates. In the world of tomorrow, remote hearing could in fact pave the
way for a new normal.
To summarize, the courts have presently adopted the policy of whosoever comes to court must
come with urgency and clean hands (in every sense).