Author- Sarvesh R, Bcom LLB, SASTRA UNIVERSITY
Co-Author- Keerthana NR, Bcom LLB, SASTRA UNIVERSITY
Introduction:
The coronavirus crisis had triggered the global economy to become unstable, businesses and individuals to lose income. It had also led to the increase in the unemployment rate and stock markets to see massive losses. The Covid-19 tragedy had exerted a catastrophic global impact on all major sectors in India.
Lockdowns imposed as a result of the spreading of viruses limited the nation’s ability to function, which had prompted the development of new mechanisms to adapt to the changing environment.
The legal sector was one such business that was not exempted by the outbreak; as a result of lockdown and various protocols for travelling and working, traditional courts’ ability to operate normally, with all of the associated heavy paperwork, was severely hampered. To address these issues, electronic courts were introduced for the first time.
In general, an electronic court is one where all judicial procedures are conducted electronically. The Indian Information and Communication Technology (ICT) system, which is attributed for providing transparency and accountability to the Indian judiciary and ensuring quick case resolution, includes electronic courts as one of its key enablers. Virtual Courts are a component of the change that the Indian court was undergoing to improve access to justice and legal services for all.
In 2004, the Chief Justice of India requested that an E-Committee be created to help him develop a policy on the computerization of the Indian judiciary and make suggestions for managerial, technological, and communication-related reforms. The establishment of two e-courts in India was also announced by the Kerala High Court.
The advocates in all of India’s courts were the group most impacted by this change in the legal landscape. The main disadvantage of this shift is the advancement of technology, which the majority of the public was less aware of because they are accustomed to the conventional way of doing things. Thus, the transition to E-court has impacted this group positively as well as negatively.
Objectives:
The main objectives of our study are as follows:
1. To determine whether the use of virtual courts during COVID-19 was effective.
2. To find out whether advocates need to upgrade their skills for the present situation.
3. To determine whether virtual courts can completely replace traditional courts.
4. To offer solutions to the issues faced by the advocates.
Methodology:
The qualitative approach was employed to carry out this study, and secondary sources were utilized to gather the data. The descriptive research design was used in our study and all the secondary data was collected from law journals, articles, newspaper reports, and other relevant sources.
Aftermath of COVID-19
Our legal system had found a mechanism to stop the spread of this sickness inside India as the outbreak of the disease was higher here. In order to keep a strategic distance from human interaction, several courts and tribunals in India have been somewhat shut down and will henceforth only conduct serious hearings. Several Courts and Tribunals have also provided guidance for closing recorder counters and attorney offices. Due to the current situation, the Hon’ble Supreme Court of India had also decided to enhance visual court procedures and e-recording to discourage legal counsel from attending courts, which would aid in preventing the spread of the illness.
The Maharashtra High Court ruled in 2003 that video conferencing used by a court to record testimony shall be regarded as being “as per the method set by law.” However, the Chief Justice of the Punjab and Haryana courts did not establish India’s first virtual court until 2019. Since then, the usage of virtual courts has grown, especially in light of the pandemic scenario, and tech-driven arbitration has become customary. Having said that, it’s important to remember that the actual courts, which have existed for a very long time, are a crucial component of the Indian judicial system.
Whether this will continue even after the lockdown is taken back is a crucial question. A few advocates like Supreme Court Adv. and Rajya Sabha MP K.T.S. Tulsi states that the courts ought to do as such, “For what reason should it not proceed?” he asks, “on the off chance that a lawyer sitting in Chennai can defend his case [via video conferencing] and the Hon’ble Supreme Court can provide a choice. “This will improve the equity process.” According to Supreme Court advocate Virag Gupta, such sessions prove that the court is “neither shut nor open,” and they will advance India’s judicial process for equity. He points out a few notable developments, such as the online documentation of claims and the thoroughly carried out processes for legal notification. Another Supreme Court lawyer, Gyanant Singh, claims that the lockdown has made it difficult for the Indian legal system to adopt modern technology. He claims that this will also reduce the necessary authoritative resources, such as those related to the introduction of imprisoned people who have been accused to the courts.
The Covid-19 outbreak had also interfered with the liquidation procedure under the 2016 Insolvency and Bankruptcy Code (IBC). The period of lockdown must be omitted from the computation of any statutory deadlines under the IBC, per an order.
The Coronavirus pandemic also had an impact on India’s alternative dispute resolution procedures. Arbitrations and mediations cannot be physically conducted due to the nationwide lockdown. Hearings are typically being held online via video conferencing or have been postponed. The Supreme Court of India had, however, suspended the deadline for passing an arbitral award as required by Section 29A of the Arbitration and Conciliation (Amendment) Act, 2015 until further orders in light of the severity of the pandemic and the fact that India is once again subject to curfews and lockdowns.
The pandemic had also changed how students are taught in law schools. To maintain the flow of learning, law schools in India have stopped using campus-based teaching methods and switched to online modes. However, many judges and advocates across the nation have been hosting webinars, lectures, and presentations on a variety of legal topics in order to accept the new normal and stay connected to the legal system.
Need for upskilling
During the pandemic, unemployment and job security skyrocketed since people were not competent enough due to a lack of concurrence with technological advancements, the entire world was out of control as it faced a sudden shift from offline to online mode.
Given the uncertainty surrounding and the future of employment, the best we can do is to begin preparing for potential outcomes by proactively determining the next course of action.
Thus, upskilling becomes extremely crucial to overcome this scenario. Upskilling is the process of assisting individuals in becoming more knowledgeable and developing new competencies related to their current position.
The pandemic had further highlighted the critical need for professionals across all professions to upskill in order to survive in the increasingly technological competitive marketplace. This is also true of the legal industry.
So, the pandemic made it possible for the court to operate in a new way—a virtual model for hearing cases—in order to address the aforementioned problem in this pandemic. It is a platform that helps the judiciary run smoothly by supporting video conferencing, electronic filing, telephone conversations, online payment methods, etc.
Several senior advocates as well as new advocates encountered numerous issues with this new phase since they had to keep up with the technical aspects of the virtual mode as it felt unfamiliar to them. The advocates encountered “digital divide” within which skill divide was the major issue as it stresses the need for upskilling for them to function through this new model. Thus, upskilling was the only option to tackle the problem.
Scope of E-Courts
The “National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary-2005” submitted by the eCommittee, Supreme Court of India served as the foundation for the creation of the e-Courts Project, which had the goal of transforming the Indian Judiciary by enabling Courts with ICT.
The e-Courts initiative offers a quick and cost-effective, litigant-centric, accessible, inexpensive, open and responsible justice delivery system. All significant stakeholders, including the judiciary, the high courts, the district and subordinate courts, and the citizens/litigants/lawyers/advocates, are catered to by the project’s services. The automation of case management had raised awareness and aided courts in handling cases more quickly.
This project’s primary goal was:
- To deliver citizen-centric services in an effective and timely manner, in accordance with the terms of the Litigant’s Charter for the eCourt Project.
- To create, set up, and put into action decision support systems in courts.
- To increase judicial productivity, qualitatively & quantitatively, to make the justice delivery system inexpensive, accessible, cost effective, predictable, dependable & transparent.
- To automate the procedures to give transparency and accessibility of information to its stakeholders.
In phase I of the e-Court Mission Mode Project, 14249 court sites were apparently computerised, and in phase II, 18735 district and subordinate courts were reportedly computerised, according to the Ministry of Law and Justice.
Major outcomes of the said project is as below:
1. Virtual Courts: As of July 4, 2022, there are 20 virtual courts in 16 states and federal territories, including West Bengal, Delhi, Haryana, Tamil Nadu, Karnataka, Kerala, Maharashtra, Assam, Chhattisgarh, and Jammu and Kashmir, as well as the states of Uttar Pradesh, Odisha, Meghalaya, Himachal Pradesh, Madhya Pradesh, and Tripura. A judge can preside over a virtual electronic court system that operates around-the-clock and may have state-wide authority. More than 1.69 million cases were heard in these courts, and 271 crore rupees in fines were collected. In order to hear instances involving check bounces under Section 138 of the NI Act, the Delhi High Court recently established 34 Digital Courts.
2. Video Conferencing (VC): The District and High Courts have used video conferencing to hear 1,28,76,549 cases in the District Courts and 63,76,561 cases in the High Courts, for a combined total of 1.92 crore cases, through April 30, 2022. After the lockdown period started on June 1, 2022, the Supreme Court convened 2,61,338 hearings. Also, VC facilities have been put into service between the 3240 Courts and 1272 Prisons. The money to erect 2506 VC Cabins is now available. A further 1500 VC Licenses have been purchased. High Courts in Gujarat, Orissa, Karnataka, Jharkhand, Patna, and Madhya Pradesh have begun live streaming video conferencing of proceedings, enabling the media and other interested parties to participate. In Telangana and Uttarakhand, mobile e-courts vans with Wi-Fi and PCs for video conferencing had been introduced to expedite case resolution.
3. eFilling: For the electronic filing of legal documents, an eFiling system (version 3.0) had been launched. It includes cutting-edge features like online Vakalatnama submission, eSigning, online video oath taking, online payment, filing multiple IAs/applications, Portfolio Management, multilingual mode, and more. With https://pay.ecourts.gov.in, online court costs, fines, penalties, and judicial deposits can now be paid.
The steps taken to provide efficient and time bound access to citizen centric services of courts to plaintiffs having no access to internet and facing digital divide was:
– By offering e-filing services to attorneys and litigants, eSewa Kendras have been implemented to close the digital gap. It is being expanded to include all court complexes after beginning as a pilot initiative that covered all High Courts and one District Court. For the construction of 235 eSewa Kendras, the government has allocated Rs. 12.54 crore. The eSewa Kendras are being put up at the entrance to the court complexes in order to help any attorneys or litigants who require assistance, including information, facilitation, and electronic filing.
– There were other online portals which also helped the judiciary, advocates and the related judicial staff in maintaining the court case records. One such was the introduction of the National Judicial Data Grid which showcases the number of pending cases along with all the necessary details of the cases in all the high courts, district and subordinate courts. This indeed helped in the reduction of pendency in cases in each court.
Major pitfalls
As stated in the Rajya Sabha’s 103rd report the article, titled “Functioning of Virtual Courts/Court Proceedings to Video Conferencing,” focused on the challenges that advocates faced when implementing this virtual mode. It also provided an explanation for why it cannot be completely replaced. The interim report prompted the creation of a committee to investigate the advantages and disadvantages of this new normal.
The Committee was informed of a few initial glitches that Virtual Court sessions experienced over the course of its discussions. The bar representatives talked extensively on the drawbacks of virtual courts and why they can never be a full and sufficient replacement for traditional courts.
Unfortunately, the legal system is also rife with this problem
-digital division
The digital divide is the difference between populations and geographic areas that have access to contemporary information and communications technologies and those who do not. The term has expanded to include access to (or lack of access to) the internet as well as the technical and financial capability to use available technology, although the gap it alludes to is continually changing as technology advances.
Although virtual services have numerous advantages, including those described above, this pandemic has emphasised the urgent need to more effectively address the digital divide that many people have been discussing so far.
The Committee had provided three dimensions to the concept of the digital divide. The three dimensions are as follows:
◦ Access divide: It includes access to equipment and infrastructure.
◦ Connectivity divide: It provides access to the high-speed internet connection required during virtual hearings. Speaking about the Connectivity divide, the Secretary Department of Justice said, ‘There is a problem in terms of internet penetration, especially in remote areas and therefore, the District and Subordinate Courts are perhaps more badly affected’.
◦ Skill divide: It includes the know-how and abilities required to use digital platforms. This is a significant difficulty since, unlike the other two problems, it involves improving the legal experts’ skill set. Nonetheless, this affects a sizable portion of the legal population because it is essential for all advocates and professionals to keep learning.
Open court system:
Several scholars believe that the essential concept outlined in the Indian Constitution is violated by virtual courts. Virtual courts violate the fundamental tenet of the rule of law and jeopardise the legality of court procedures.
According to the Supreme Court’s ruling in the Anita Kushwaha v. Pushap Sadan case, “Access to Justice” is a constitutional right guaranteed to rural (and other) residents under Articles 14 and 21 of the Indian Constitution.
The recent admission and acknowledgement by Judge Dr. DY Chandrachud that virtual courts cannot entirely replace the open court system is noteworthy. Justice Deepak Gupta, a recently retired Supreme Court Judge, had made similar comments.
The Supreme Court stated in a news release that “Virtual Courts Not Antithetical to the Open Court System” in the first week of May 2020. In theory, this is accurate. The Supreme Court then created an admirable and well-structured e-filing process and standard operating system in the second week of May.
Confidentiality:
All attorneys, judges, and clients are looking for a good balance between safe case staging and case hearing during the pandemic crisis. Virtual courts were set up to stop prisoners from moving between the Court and the prison. Concerns about the confidentiality of conversations that take place during judicial procedures are raised by virtual courts. There are worries that it will jeopardise data privacy.
Technology must be included so that core legal values like fairness, impartiality, and participatory justice are not compromised. The legal technology companies engaged in innovation can play the crucial function of utilising the limitless potential of technology to connect parties in the system of delivering justice. These startups can also provide funding for reasonably priced and effective data security solutions.
Solutions and suggestions:
The following tactics can be used to overcome the challenges faced by the legal system.
1.The “access divide” will be significantly reduced thanks to e-Seva Kendras, which are anticipated to be established as soon as possible in all court complexes around the nation. To address the connectivity gap, the Committee had recommended stepping up efforts to ensure prompt implementation of the National Broadband Mission, which envisions broadband access for all, in order to fully utilise the services offered by domestic communication satellites and achieve the goal of universal broadband access.
2.To tackle ‘skill divide’, the Committee had recommended that training and awareness programmes should be conducted in all court complexes across the country in order to acquaint advocates with the technology and to enable them to acquire skills required for handling digital platforms so that advocates operate digital platforms themselves. Advocates would be required to use technological skills in combination with their specialised legal knowledge and therefore, they should keep up with the changing times.
3.To address the issues pertaining to data security The Committee formed under Rajya sabha’s 103rd Report had also recommended to the Ministries of Law and Justice and Electronics and Information Technology that when creating a new platform for the Indian judicial system, data security and privacy concerns be taken into account and addressed. Additionally, it was suggested that blockchain technology be used to increase the trustworthiness of evidence and the security of transactions. The online systems must be supported by adequate standardised authentication mechanisms and procedural protections in order to increase the security of the data related to court proceedings.
Conclusions:
In the sense that the use of Information and Communication Technology (ICT) in the courts earlier was primarily computerization of the courts, listing the cases from the computer, posting the judgments on the internet and filing of the petitions, this Covid-19 situation came as a blessing and disguise. The benefits and cons of using virtual courts are like the two sides of a coin, each with their own side. On one side the virtual courts provide better access to justice, are cheaper and more user-friendly. Digital Justice is more affordable and quick. On the other side it had its own drawbacks, likely the technical backwardness of advocates and poor accessibility to the internet and lack of necessary advancement in their skills. When there was a nationwide lockdown, this approach was extremely helpful in resolving open cases. Nevertheless, it was not effective enough to be adopted permanently, so the answer to the efficacy question is negative and unanswerable. According to our study’s conclusion, advocates must upgrade and update their abilities to cope up with the digital improvements to sustain in the contemporary environment filled with competition and this shift towards technology is inevitable also.
