(Part II of a two-part series)

The Challenges

Indeed, as with any transformation, there are challenges to digitalizing the Indian judiciary as well. Video conferencing would require access to a computer with a video camera and good quality Internet connection. For most of the Indian population which lives in poorer economic conditions and backward areas, these are a matter of luxury. Many, especially the poor and the old are also ignorant of the technological know-how; elders are less tech-savvy than their younger counterparts and especially reluctant to let go of traditional methods. 

The quality/speed of Internet in India is also low as compared to other countries. As of March 2020, India ranks 130 out of 141 countries in terms of average mobile Internet download speed. India’s average 4G download speed is 10.15 Mbps, far lower than the top ranked country, United Arab Emirates, whose average speed is 83.52 Mbps. 

Low Internet speed causing voice-cracking and distortion of visual, which can create a dangerous situation if the judges mishear the parties to litigation during the video conferencing.

At present, video conferencing depends on third-party applications or websites to conduct hearings. The Home Ministry has issued an advisory against the use of video-conferencing app/website Zoom in government offices citing it as “unsafe and vulnerable to cyber-attacks”. This is especially concerning as the Hon’ble Supreme Court and some High Courts like those in Maharashtra and Telangana are already using it to conduct hearings. 

From the point of view of security, an India-based and government approved application/website for videoconferencing and e-filing and e-transferring of documents is essential. This app/website and the entire digital communications infrastructure must be user-friendly and must also be maintained and monitored continually to prevent its overloading or crashing. 

Data privacy and security concerns should also be addressed; leaking of information can significantly impact the case of a litigant and it will also be a gross violation of their right to privacy. Steps like using ‘captcha codes’ or ‘one-time passwords’ on the user-end and employing high-end firewall security, etc on the creator’s end should be taken. 

The end of lockdown poses us with a question: will this method of conducting hearings will be dropped once the lockdown is lifted, or will it be gradually incorporated and streamlined for conducting hearings? If we drop this method, it will be counter – revolutionary to the digital India movement. However, employing this alternative will require significant investment in technology and gadgets as well as a system of schedule and guidelines for its smooth functioning by both bar and bench. Both options have pros and cons, but the scales clearly tilt in the favour of going digital permanently and not seeing this as a ‘stop-gap’ thing.

Response of Judicial systems across the world during the times of pandemic

The Supreme Court of India has announced that only urgent matters shall be proceeded with. It regularly issues updated guidelines on conducting hearings via video conferencing via Vidyo, Skype, Whatsapp and any other application if the need arises and has impressed upon using e-filing for filing petitions and other documents. It has also set up a helpline for assistance with e-filling and video conferencing. 

Various High Courts like the Bombay, Delhi, Madras, Karnataka and Orissa have cancelled their summer vacation, for the High courts as well as their subordinate courts, to make up for the working hours lost to COVID-19 lockdown. The National Green Tribunal too has announced cancellation of summer vacation. All benches of Telangana HC will function through videoconferencing from 20th April, 2020 onwards. Previously, it had operated through “virtual courts”. 

The Gujarat HC has been one of the most progressive courts in this front; a press-note it released informed that on 15th April 2020, it heard a total of 111 matters via videoconferencing from the respective residences of the Judges and 59 of them were disposed of. 

It has also installed a Sanitization Tunnel which all the personnel entering the premises will have to compulsorily pass through. Gujarat HC has also heard a Habeas Corpus Writ via video conferencing. The bench directed the Rajula Police not to bring the Jharkhand-based 15-year-old girl to Ahmedabad but to take her to Court of Additional District Judge, Rajula in Gujarat and produce her before the HC Bench through video conferencing.

Globally, the Supreme People’s Court of China, in February 2020, urged courts at all levels to guide litigants to file cases or mediate disputes online, encouraging judges to make full use of online systems. Between February 3 and March 31, 2020 about 150,000 cases were heard online by Chinese courts. China has also set up “Internet courts” which handle litigation procedures from filing a case to issuing judgment documents online.

In the UK, the enactment of the Coronavirus Act provides for greater use of audio/video hearings. Courts in the UK have made arrangements to conduct proceedings through telephones, video and other technology; ‘Skype for business’ is largely relied upon. Italian and Australian Courts too are gradually increasing the use of video-conferencing for its activities.

American courts are using multiple audio and video conferencing technologies to host oral arguments, initial appearances, preliminary hearings, arraignments, misdemeanour sentencings, and other procedures remotely. The technology options being used and tested by the judiciary include AT&T Conferencing, Court Call, Skype for Business, Cisco Jabber, and Zoom.

Challenges are not insurmountable

The obstacles that lie in the path to e-courts and virtual litigation can be overcome through the means of the Digital India programme launched in 2015. Already ex-Chief Justice of India Deepak Misra and Law & Information Technology Minister Ravi Shankar Prasad have launched a number of services under the e-Courts programme. These include e-filing, e-payment options, National Service and Tracking of Electronic Process (NTSEP), Supreme Court Legal Services Committee (SCLSC), and user manual and awareness guide for these and other services.

The Digital India Initiative has been a game changer. Under it, the E-Courts project is free, open source and has saved more than Rs 1,670 crores of the public exchequer. 

Lastly, privacy concerns that have cropped up in the recent past continue to remain, but they are being solved. For instance, Zoom has updated its privacy policy and terms and conditions after the uproar over its security and usage of personal data of users of the service. Therefore, such worries will soon be a thing of the past, fully and permanently opening doors to full digitization of litigation in the form of virtual hearings and e-filing. 

(with inputs from Adv Niraj Sheth)

Read Part I of the two-part series here.

Adv. Aarti Sathe

Adv Aarti Sathe is a Tax Counsel practicing in the Bombay High Court and a BJP Mumbai spokesperson.

Anushka Mehta

Anushka Mehta is a student at Government Law College, Mumbai.

Asawari Kadam

Asawari Kadam is a student at Government Law College, Mumbai.

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.

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