(Part 1 of a two-part series)
Courts are an integral part of our society and are required to keep functioning to maintain law and order. It is impossible to imagine the regular working of a nation without the regulatory supervision of the judicial system, even for a short period of time. The recent Covid-19 pandemic and the ensuing complete lockdown has made this even more evident. The Supreme Court recognized that the only solution was to turn to digitalizing legal proceedings through video conferencing. This solution furthers the understanding that courts are a ‘service’ and not a ‘place’.
Unprecedented times act as a needed impetus
India has been preparing for this leap towards the virtual world for over 15 years now. The Indian Government established the e-Committee of the Judiciary in December 2004, which has overseen the steady adoption of electronic infrastructure by courts across the country. Their 2014 report had suggested video conferencing and recording facilities for courts and jails in all states. This was meant initially for sensitive cases such as child abuse, domestic violence matters and sexual abuse incidents and then was to be steadily extended to other areas as per need. By 2019, as many as 3,388 court complexes and 16,755 courtrooms across India have been computerised and video-conferencing equipment has been provided to 3,240 court complexes and 1,272 jails.
The judiciary had already set out towards hearings on video conferences and taping of records since 2004 but not gotten there completely; the current pandemic is simply moving it forward.
Rule 4(1) of the ITAT Rules, 2017 allows that “A Bench shall hold its sittings, either physically or through the video conferencing, at any of the places where benches are situated or at such other place as may be authorised by the President in this behalf.” The chairman of the Supreme Court E-Committee, Dr Justice Chandrachud held a video conference last month with chairpersons of the computer committees of various high courts to ensure that courts could conduct urgent hearing matters through video conferencing and to enable e-filing of documents and affidavits. This shows that it’s not impossible to operate courts, rather ‘e-courts’ through technology, and in fact, must continue on a long-term basis.
The need and advantages of e-Courts are many. In the case of the Covid-19 pandemic, as ‘social distancing’ is the only way, till date, to contain its spread, video conferencing helps reduce direct contact with other human-beings thereby cancelling the chain of contact and the disease. Lawyers, litigants and judges need not go for physical hearings to courts or tribunals and fear exposure to the infection; video conferences can help maintain social distancing as well as keep the work going.
Video conferencing can be used in almost any kind of legal matter including bail application, remand hearing, civil matters like matrimonial disputes, criminal proceedings, etc. as has already been the practice in India in special cases. The only requirement of the act is that the court just requires the oral evidence to be made before it. Hence, the evidence can be presented before the courts by the way of video conference or other electronic means as well.
Remote-conferencing i.e. video conferencing from remote locations would mean that lawyers or litigants can be situated in one state and still appear for a case in another state. This way, the system not only contains the spread of Covid-19, but also addresses the problem of overcrowding in courts. Courts can now maximise their resources, save the time and money lawyers and litigants spend on travelling to different courts or tribunals and redirect the efforts towards achieving higher productivity. This will help reduce traffic and lessen pollution, thereby reducing our carbon footprint and saving the environment. Many law firms and CA firms in India have already geared up and are conducting their work from home, opening possibilities for this to be extended to all fields.
Initially, on a pilot basis, tribunals like the ITAT (Income Tax Appellate Tribunal) can consider hearing small/covered/SMC matters virtually. However, ultimately the goal should be to make this a “permanent” rather than a “stop-gap” temporary solution. This will require investment in technology and gadgets both by the Bar and the Bench, however, given the current directive to use the unspent funds from the second phase of the E-courts project, such an investment would be most productive.
It will also help in reducing pendency of cases through faster disposal via remote hearings. Justice Madan B. Lokur, in-charge of the E-Committee of the Supreme Court, said, “twenty-five to thirty percent of cases in the lower judiciary are pending because summons does not get delivered to parties.” E-mail/ SMS summons would solve this issue. Further, lawyers and counsels can circulate, in advance, the written submissions of the arguments they would like to plead before the judges during the video conference (which would then primarily supplement their submissions). While written submissions can be expected to be the primary mode for presenting cases, the concerned bench may require oral hearings in certain cases. Here, lawyers should cooperate by presenting arguments in a time bound manner over video conference in order to deliver timely justice.
Digitalization of operating systems has always increased efficiency and transparency, and through video conferencing and remote hearings, entire hearings can be recorded and archived for future reference, keeping alive the spirit of courts of record. Further, a digital library containing legal-reference books, commentaries, bare acts, case laws all in a single place will not only spread knowledge but also enable research on a particular case. Such a library should be kept free or charge minimal fees so that everyone can benefit from it.
Just as Parliament, High Courts and Tribunals can have their own television channel or webcasts to broadcast live proceedings of court (keeping in mind the nature and sensitivity of the case and the issue). This will increase public awareness about the judiciary, more transparency and enhanced public participation through live links, especially in matters of national interest and importance. The reluctance in using video conferencing to conduct hearings is partly due to the secrecy of the process, however, public broadcasting of the live proceedings would take away the secrecy and help overcome the reluctance.
Currently, all documents and submissions need to be filed in duplicates or triplicates, depending on number of judges and other aspects. This practice can be replaced with e-filing of documents, which can save substantial quantities of paper. This is a very achievable goal since most records are already available/submitted in soft format before the lower authorities. Courts can mandate compulsory e-filings and registering of pleadings/ applications, along with the synopsis of arguments and the relevant law. In the ordinary course, based on these e-filings, the Judge can pass speaking orders that are published, or issue notices that can be communicated electronically to all parties.
Going paperless will greatly benefit both courts and legal offices, making them paper-free, as well as save trees and the environment. After all, being humane and not disturbing the ecological balance is one of the biggest takeaway this pandemic has or should have taught us.
(with inputs from Adv Niraj Sheth)
The views and opinions expressed in the article are those of the authors and do not necessarily reflect the official policy or position of The Tilak Chronicle and TTC Media Pvt Ltd.