GIST OF RAJYA SABHA TV: COVID-19 & Social Distancing

Introduction:

The Supreme Court passed directions for all courts across the country to extensively use video-conferencing for judicial proceedings saying congregation of lawyers and litigants must be suspended to maintain social distancing amid the coronavirus pandemic. The top court, which has restricted its functioning and is conducting hearing through video conferencing since March 25, exercised its plenary power to direct all high courts to frame a mechanism for use of technology during the pandemic. A bench headed by the Chief Justice stressed that "technology is here to stay". On this edition of The Big Picture we analyse the concept of virtual courts and the way ahead.

Excerpts from the debate:

What are virtual courts?

• A virtual court is a conceptual idea of a judicial forum that has no physical presence but still provides the same justice services that are available in courtrooms.
• Virtual courts do not exist in physical form nor do they enjoin upon the defendants and petitioners to be physically present at their premises. This is a technology-based system where the internet is heavily relied upon for its smooth functioning.
• Access to virtual courts would, however, be limited to online access, videoconferencing and teleconferencing.
• Videoconference technology allows witnesses to testify at trial without being physically present in the courtroom.
• In contrast to a traditional, in-person witness, the videoconference witness is not physically present in the courtroom, but ‘virtually present’ through the use of technology.
• This enables the witness and those in the courtroom to interact with each other.

 What is the importance of artificial intelligence (AI) for courtrooms? 

• With nearly 3 crore cases pending, delays in courts remain a grave concern. Technology can, indeed, be a major catalyst in facilitating reduction of backlog in courts.
• The judiciary could explore the assimilation of technology that is disruptive and seamless to build upon its proactive effort to integrate IT and communication-led technologies, including through the e-courts project.
• Tools derived from AI will help expedite case-flow management, unclog the processes that are slowing justice down, and in many cases, ease administrative aspects.
• The use of AI in Indian courts does not envision replacing the wisdom, experience and objectivity of judges in determining verdicts.
• In the conceivable future, there is absolutely no question of replacing human reasoning, logic and intelligence of the judiciary with automations.
• But there are many usages of technology that can be adopted and integrated immediately. This could free up the judiciary to solve complex matters that require its full attention and expertise.
• Significant progress has already been made. There is now standardisation of data collection.
• AI would enable real-time governance of courts based on simple metrics like frequency of case disposal per judge, or categorisation of subject matter with respect to judges.
• The CJI and chief justices of high courts can have a live dashboard constantly updating them on the performance of lower courts based on colour-coded markers for various key performance indicators (KPIs). This would bring a great deal of accountability and trust in the system.
• AI systems in the US and Canada have been implemented to assist judges with matters that include bail applications and parole matters. In the US, algorithms reportedly help recommend criminal sentences in certain states. Chinese courts are believed to have established dedicated public platforms to facilitate the availability of information to litigants through IT-based options.

 Can a litigant raise a challenge based upon the doctrine of “coram non judice” ?

The concept of virtual court can raise an issue of legality of a potential challenge to the proceedings on the ground that the adjudication happened neither in a courtroom nor even a place declared to be a Court. Can a litigant raise a challenge based upon the doctrine of “coram non judice” on the ground that neither the adjudication took place in the court room/court precincts declared as such nor the Judges and/or the lawyers even attended the Courtroom?

• Though the Civil Procedure Code, the Criminal Procedure Code and the Rules framed for the High Courts and the Supreme Court provide for the “seat” of the court, it does not provide for the “venue” (to loosely borrow the expressions used in arbitration law).
• Though the issue appears to be a mere twattle, the ingenuity of a legal mind and the dauntless adventurous nature of some compulsive litigants can never be underestimated.

What are the pros of this concept?

• Cost effective: Through virtual courts, video and audio enabled hearings is beneficial as it saves significant court costs in terms of building, staff, infrastructure, security, transportation costs for all parties to the court proceedings, especially transfer of prisoners from jails.
• Saving manpower: Virtual courts will cut much police work and spare a large number of them for other duties. On an average, one in every five policemen is generally out on duty for court-related matters—serving of summons.
• Transparency & accountability: Virtual courts can bring transparency and accountability in the judicial system as they can bring a lot more judicial reforms in India while helping in dealing with the long pending cases.
• Boosting India’s legal framework: E-courts will prove to be a major step in the evolution of India's legal framework and will play a major role in boosting the confidence of domestic and foreign businesses as they explore investments in India.

What are the major challenges?

• Authenticity issues: The use of video and audio enabled hearings have also faced significant legal and practical problems including admissibility and authenticity of the evidence received through the video and/or audio transmissions, the identity of the witness and/or individuals subject of the hearings, the confidentiality of the hearings.
• Connectivity issues: The practical issues have been wide ranging; they include poor quality of internet connection, poor and outdated the audio and video equipment, power cuts, inability to establish connection at the agreed time, inability for multi-party to partake especially involving interpreters and vulnerable witnesses.
  • So, it is crucial to have good infrastructure for audio-video enabled hearings to be effective and successful. This would involve significant investment in court and IT infrastructure.
• Difficult in confidential discussions: Defendants in virtual court hearings find it difficult to hold confidential discussions with their lawyers, become disconnected from remote proceedings and may be disadvantaged during sentencing.

 What needs to be done?

Access to justice is fundamental to India’s democratic framework and must not be ignored even in these dire circumstances. One way to retain access for most litigants as quarantine, self-isolation and social distancing are being implemented to avoid contracting the deadly virus, is by using technology. Some jurisdictions abroad have the facility to operate online courts and even telephone hearings for non-substantive issues. 

• Adopting judicial platform: The importance of allowing technology within the judicial process is already recognised in studies conducted by Indian legal analysts. For instance, DAKSH’s white paper serieson a next-generational justice platform moots the idea of re-calibrating the Indian judicial system through a natively digital platform.
• E-filing of cases: Also, filings related to a case, and non-essential hearings — which take up a substantial amount of time — can be moved online.
  • E-filing and video conferencing should be available to litigants at all levels.
  • In matters of bail hearings and habeas corpus petitions, where individual liberty is at stake, it is imperative to allow for video conferencing or other suitable mechanisms to ensure their disposal.
• While courts cannot function in the manner they do regularly in the midst of a pandemic, using technology can help to some extent. We need the judiciary to be a pro-active force that will ensure access to as many litigants as possible, even during a health crisis.
• In a nutshell, justice-sector reforms should provide increased access to e-justice, enabling citizens to get their disputes resolved more conveniently and quickly. Litigants should engage with online proceedings that ensure, first and foremost, procedural fairness. 

Way forward:

Across the world, we are witnessing lockdown of public and private services in an attempt to deal with the COVID-19 pandemic. However, in such extraordinary circumstances, the role of the judiciary is even more vital to the survival of democracy. In this context, the move of the Supreme Court is a welcome and extremely important step in these unprecedented times. These measures will for sure strengthen India’s justice system and enhance its capacity to meet the global crisis, including, in the first instance, the crisis growing out of encounter with the Covid-19 virus.