THE NEW DIGITALLY LEGAL INDIA
“Necessity is the mother of all invention.”
This quote is the present situation of the country. No one dreamt or imagined of the country’s situation to be like this. No one in India would have ever dreamt of courts getting virtual. From law schools to law firms and the courts getting virtual. The dream of digital India was very not ancient but can’t be called as the fresh dream for a country like India. Time passes by and so did the Covid -19 whose existence has been with us for more than a year now. Tough times are not only faced by our country but by the entire world.
It’s not just a mere earthquake or terrorist attack or a cyclone which could be controlled or compensated. It is a global pandemic. From losing livelihood to losing lives in various countries. India has also been affected in various ways but has the country just lost? We are always asked to look towards the positive aspects. We cannot even imagine what people have gone through and what actually people have lost. But this too shall pass and things do pass. So, there are a lot of things that the country has gained and one being a very important thing being the country becoming self-reliant on the digital platform.
The country emerged only and only because it was a need. A need which could not be have been possible if there was not a digital platform. Online learning for students was a major change that all countries went through in the pandemic which shifted the whole education system to a new and virtual platform. The concept of virtual learning was never a primary mode of teaching but this pandemic has brought a major shift of learning for students and teachers across the globe.
But, in a country like India where there is a lack of knowledge, literacy and awareness, people really take a lot of pain in accepting something which is very new but has become a part and parcel of life now luckily. No doubt, lockdown has taught that anything and everything can be done behind the closed doors. Things are tough but at the end definitely not impossible. The development of the country in the virtual court’s eventually happened because of the necessity. This paper will eventually unfold how gradually developments took place in this pandemic in the context of virtual courts.
Keywords: Digital, Legal, Development, Self-Reliant, Covid-19
The sudden outbreak of COVID-19 has brought drastic changes to our day-to-day activities. Social distancing became the primary source of breaking the virus chain due to which work, education, labour everything turned digital. Over the years, digitalization was being gradually introduced into our country through various means but didn’t become a primary method for all. In a country like India, where there is a diverse crowd, not all want to shift from their traditional approach to a digital approach.
If we talk about education in our country, schools and colleges could be shifted to a digital platform wherein online books and online tests could be conducted in today’s digital world. But not until the pandemic was this step taken. The global pandemic, which has been a global issue for more than a year, now changed digitalization from a choice to a compulsion. The pattern, which was being followed earlier, has completely changed, and people across the globe are adapting to the change gradually. With the changing times, the concept of virtual courts was brought more into the light.
Our legal system and courts have undergone a severe change of the past year due to the pandemic, and the virus has caused a speeding up of the process of virtual courts, which was stagnant before last year. In 2013, the Hon’ble Chief Justice of India launched the official virtual court site, which was the e-Courts National Portal
The concept of the virtual court is the most demarking concept that the pandemic has introduced to the legal field worldwide, and this wave has brought a massive change in the professional world and the process of carrying out legal proceedings in the Indian Courts. Even though introducing the concept of digitalization of courts was introduced a few years back, the concept was not applied in the practical world as a primary method. It was a concept that was considered an option to the traditional way of carrying out legal proceedings.
The rise of the pandemic created a situation wherein virtual courts were the only means to keep the legal proceedings flowing, and the progress would otherwise have taken a few years to be made if the pandemic did not exist. In our country, as we all are familiar with, the number of pending cases in our Indian Courts is increasing day by day. The pile of cases keeps on going up due to our densely populated country. The alarming situation that the pandemic created resulted in people locking themselves at home, nationwide lockdown and restrictions on physical contact with one another. This situation led to the shutdown of offices, schools, colleges, labour work and other crowd-attracting places.
Meanwhile, the complete shutdown of our judiciary system was not possible. There was a definite alternative that had to be figured out during a global pandemic that would carry out similar proceedings keeping in mind that justice has to be delivered through a fair and unbiased trial. To limit the number of people entering the court and maintaining the social distancing norms, during the sudden rise of the virus in 2020, our judiciary shifted to virtual hearings and proceedings as a means to stop the infection from spreading and for the judicial system to carry out the legal proceedings.
Importance and Advantages of Virtual Courts:
Virtual hearings add ease to many people’s lives, including the judges, advocates, witnesses, and general public. Travel, the main feature of court proceedings, is to arrive on time, on the date of the hearing and present their pieces of evidence. This not only does cost-cutting but also makes it flexible for all parties to proceed with the case. Easy access from anywhere is another privilege of virtual courts as through one click. A person can join the video conferencing and proceed with the hearing. All facts and shreds of evidence are presented virtually themselves and are reviewed for further judgment.
The concept of virtual hearings is not familiar to most of our country due to the diversity present. The digitalization of courts is a cost-saving and more accessible justice-delivering method that will encourage people to learn and explore the technological aspect of the world and make it easier for work, businesses, and the judiciary to function. Every system has its drawbacks, and so do virtual hearings.
Technology is not a perfect replacement for the traditional approach we all have been carrying out for decades. Still, technology is most certainly a step forward into the future. The virtual hearings and video conferencing of legal proceedings is a faster process with better convenience for the people of our country. The pandemic led to the shutdown of all institutions, offices, schools and all workplaces to break the virus chain; the judiciary, on the other hand, is the official justice serving system of our country that cannot be paused or stopped. Through virtual proceedings, the judgments of the cases were given, faster delivery of justice was taking place.
The Law and Logic Behind:
In addition to the various challenges already being faced by the Indian Judicial and Legal System, the pandemic has added another challenge of conducting the court hearings. During the lockdown, the Courts across the country embraced a novel way to conduct hearings virtually. As things are coming back to normal with the resumption of physical hearings, and even though appearing in Courts poses its challenges, primarily due to the crowding that goes hand-in-hand, there is a dissection of lawyers having separate opinions and reservations on resumption of physical hearings.
The Supreme Court had recently rolled out the Standard Operating Procedures (SOPs) for a Hybrid System of hearing before itself. However, these Standard Operating Procedures have not been received well by the Supreme Court Bar Association (SCBA). In the recent order of the Hon’ble Supreme Court in Supreme Court Bar Association & Anr. Vs. Supreme Court of India1 has given considerable thought and advice on a series of connecting Special Leave Petitions heard on March 16, 2021.To record shreds of evidence through video-conferencing due to regard should be given to the safeguards enlisted in the different decisions like Amitabh Bagchi v. Ena Bagchi,; Sujay Mitra v. State of West Bengal; and Twentieth Century Fox Film v. Nri Film Production Associates.
Moreover, to give due regard to the background of an advocate, availing for e-courts can also be made subject to the consent of both the advocates, like it’s done in deciding the place of arbitration. A wholesome effect of these steps can lead to achieving an efficient, speedier, accessible, and affordable judicial system. These issues have been chronic issues of the Indian judicial system.
Here, it would be apposite to quote the words of Justice Bhagwati from National Textile Workers’ Union v. P.R. Ramakrishnan, and reiterated in the State of Maharashtra v. Dr. Praful B. Desai, a leading case wherein the Court held that witnesses could give evidence through video-conferencing.
The above observation calls for the law to adapt to the changing society, yet it befits the present situation of the pandemic. The traditional system of open courts should also adapt to the changing technology-driven society. Laws must evolve, and practices must upgrade if the institutions are to progress. This becomes more compelling when the objective is to render justice more speedy, affordable, and accessible and strengthen the rule of law.
Article 39A of the Constitution of India puts the State under an obligation ‘to secure that operation of the legal system promotes justice‘ and ‘to ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities.’ E-hearings ensure that even citizens living in remote areas are not deprived of their right to contest their court cases because of their limited financial resources.
The words of Supreme Court in the matter of Swapnil Tripathi v. Supreme Court of India,  in the context of Live-streaming of court proceedings, are very apt:
“Slow as we have been to adapt to the complexities of our age, it is nonetheless necessary for the judiciary to move apace with technology. By embracing technology, we would only promote a greater degree of confidence in the judicial process.“
The proverb’ opportunities lie in the adversity’ should be remembered, and the Indian judicial system should thoroughly teach reform in continuing certain judicial proceedings for e-hearings.
The Other Side of the Coin:
The concept of virtual courts was most certainly a saviour during the rise of the pandemic. Still, this factor was not enough to stop the criticism it received during the initial days of the virtual proceedings. The general public, the officials and advocates, complied even the judges went through a complete transformation, from physical courtroom proceedings to virtual. The main burden which falls due to virtualizing the courts is the knowledge of the digital world. Our country consists of literate and illiterate people, where the ratio of illiterate people is more.
People belonging to rural areas see laptops and smartphones as a luxury, not a necessity. This is one of the significant setbacks of virtual courts. Practical problems such as a stable internet connection, digital pieces of equipment are also a common issue faced during a virtual video and audio conferencing. Technical issues aside, other main issues also lead to virtual courts not being the best substitute for physical courtroom proceedings. In these virtual courts, everyone joins in through video conferencing. All the arguments, facts and shreds of evidence are presented through video conference only, increasing the risk of false evidence being passed around.
Unlike the physical court, where all the expressions the body language of the witnesses are noticed and questioned, through video conferencing, it can be so that the witness is under pressure or is being bound to give a false testimony which can only delay the justice being served. Virtual court hearings also increase the risk of faking a person’s identity or the witness as virtual hearings are on video conference calls that are not as clear as physical courts. In a live legal proceeding, minute details can be observed, whereas there are higher chances of oversight over a video conference call.
The Supreme Court, in specific cases, has considered the importance of providing open access to the public to follow up on the proceedings, which keeps up the value and respect of the court and builds a better connection between the government and the citizens. In 2018, The Supreme Court had recommended and set up a few guidelines for the people who wanted to join in on the live court proceedings. Later in November 2020, a panel of 3-4 people was set up by The Supreme Court to explain the live streaming guidelines and how the rules are set up. The virtual court aims to provide a platform where people who wish to attend and observe the proceedings as an audience may do so.
Post Pandemic Future of Virtual Courts:
The e-committee is a virtual part of the Supreme Court that laid out the points and steps of the post-pandemic status of the digitalization of courts in India. Virtual courts are not said to replace the traditional physical court proceedings that had been taking place before the pandemic. However, a few changes are to be added to the legal system of our country, which will not only make the process easier for the citizens of our country and speed up the overloaded cases in the courtroom.
Digitalization has shown drastic changes over the years, especially in the last two years. Virtual courts have brought ease in the administration of the court cases and have made courts easily accessible to every individual without overloading of economic aspects. Before the pandemic, the concept of virtual courts existed but was not applied or prioritized by our government. It was considered as a future alternative and a step into the digital world. The working of the courts was still taking place in the original physical environment as it had been going on in this manner from the beginning.
Digitalization is a concept of the modern world where technology is at the top, and people are dependent on technology and virtual connections more than the physical approach. The pandemic has lasted for more than a year now, and people have gradually adapted to the new concept of “digital” living and are now well versed and familiar with the virtual era. The post-pandemic situation of our country is quite debatable as various legal bodies of our country have different opinions regarding the future of virtual courts post-pandemic. All agree to the fact that virtual courts are the reason why our judiciary system did not fall apart when COVID-19 hit us initially.
The parliamentary panel reported that virtual courts are proved to be faster and cost-friendly than the standard method of court proceedings. People with financial restrictions and traveling issues will find digital courts the best possible solution to their problems. Thus, virtual courts shall be continued even after the pandemic is over.
The panel also suggested that with the consent of all the parties, a decision for the brighter and economic future of the country shall be made. Various tribunals that don’t require the physical presence of the people shall be continued to be virtual for better and faster solutions to the cases. Various other settlements can be made virtually through video conferencing, which will be far more feasible for the people and the legal authorities.
In an interim report submitted to Rajya Sabha chairperson M Venkaiah Naidu on Friday, the Parliamentary Standing committee on Personnel, Public Grievances, Law and Justice said underlined digital justice is cheaper and faster.
Court proceedings have been held digitally for over five months to adhere to social distancing norms as part of the measures to check the spread of the pandemic. The Supreme Court late last month notified standard operating procedures (SOPs) to govern physical court hearings which were expected to commence soon. The physical hearings of matters are expected to begin only in three courtrooms initially, the SOPs said. The court was scheduled to call on how many lawyers and litigants will be permitted inside the courtroom, depending on the capacity and physical distancing norms.
Physical hearings of cases in the Supreme Court were suspended on March 23 because of the pandemic. The apex court has been hearing cases via video conferencing since then. The top court issued a circular on March 23 suspending entry of lawyers and litigants to the court premises and directing that the courts take up only urgent cases. Only acute cases will be taken up for hearing through video conferencing.
The panel’s recommendations have come even as various Bar councils have questioned the efficacy of the digital proceedings and pointed out the limitations of the infrastructure required for them. They have said digital proceedings favour tech-savvy advocates besides depriving many lawyers of changing the course of arguments based on the changing dynamics of a case during hearings.
From a country that never imagined turning all the things virtually to a country whose Apex Court is also running effectively and successfully. Virtual Courts are the new normal amidst the global pandemic. When Covid 19 hit India, the country was not in a state to take this entire thing online, but today it is developing steadily and smoothly. With COVID-19 sparking a colossal rise in remote and virtual hearings, the legal community has become one area that rapidly conversant with the technology that makes this possible after schools and education system Facing a massive backlog of cases, the profession is also evolving rapidly to embrace the best possible solutions to securely conduct hearings, trials, and other proceedings in the long term. While straightforward videoconferencing and webinar solutions address audio-visual requirements for general purpose meetings and events, going virtual is a remarkably complex process in international tribunal-led hearings. These involve multiple parties, languages and cultures, highly sophisticated matters under dispute, and substantial document bundles for the arbitral record. We were already applying digital services and technologies to industry, businesses, agriculture, defines, governance, education, and health in India. Today, court proceedings have been used not only to human beings but to animals, rivers, and even gods. Therefore, any case involving decisions affecting the life and liberty of persons must remain in the realm of physical courtrooms. Forceful interventions and often repeated stressing of a point are required in a courtroom. Lawyers need to interrupt when they feel the arguments of their counterparts are factually inaccurate — we are, after all, according to Amartya Sen, “argumentative Indians” — but this cannot happen unless the ‘host’ of the video court hearing unmutes you.
 Student, UPES, Dehradun.
 Student, UPES, Dehradun.
 AIR 2003 Kant. 148, para 10.
 (1983) 1 SCC 228 .
 (2003) 4 SCC 601.
 AIR 2018 SC 4806.