“The fog of information can drive out knowledge.”
Due to COVID-19 incited nation-wide lockdown, the judiciary has been compelled to look for methods in technology to label apprehensions with respect to ‘access to justice’. Since court proceedings can’t be administered in person due to the lockdown, the Hon’ble Supreme Court and several High Courts have cautiously been going ahead by taking up matters through videoconferencing (VC). On April 6, the Supreme Court, had discharged guidelines for compulsory VC in all courts, as well as District Courts, for making sure ‘absolute justice’ in the course of COVID-19 outburst. The Supreme Court’s order is a remarkable move regarding virtual courtrooms, and hence should surely be given a warm greeting.
Nevertheless, given the ad-hoc character of the ‘e-proceedings’ taken up till date, doubts have antecedently surfaced as to whether the judiciary can move ahead by hearing to matters in a just and neutral fashion, and whether the parties will be provided an unbiased occasion to be heard, among all. Such propositions of natural justice must be upheld by the courts.
Backlashes of an action grossed during a crisis have to be examined to certify that technology doesn’t thwart the system from the ideals of impartiality and lucidity. This segments puts light on deliberations, which the judiciary must heed to while it opens its doors to technology. The guidelines of the Supreme Court however don’t define whether such VC provisions will continue to be restricted to ‘urgent matters’ alone or will apply covering all unsettled cases. The Supreme Court has fairly put on this to High Courts to determine, perhaps in accordance with their ICT infrastructure and internet penetration.
DIGITALISM BROUGHT TO COURTS
High Courts of Kerala and Bombay have initiated live streaming of the hearings through the Zoom App. The link to connect to the proceedings has been made public on the cause list for the respective courtrooms.
The Kerala High Court, specifically, has issued guidelines for all advocates elaborating on how
one can join the VC through the link. It might look like the finest and the plausible method to evolve and reform the legal community of India, and that it has no pitfalls involved. Yet, that is not the case. These ways may give rise to several legal problems which relate to the relevancy and legitimacy of the identity of witnesses or the evidence produced before the court etc. Also the secrecy of court proceedings shall be at peril because, at the end, the complete mechanism comprises the usage of technology and several other software and tools that might cause some dangers to the security and privacy of data.
Although, apps such as Zoom have antecedently given birth to security concerns and can’t be trusted for chief institutions as the judiciary for a long time. In spite of this, it is mandatory for a vigorous apparatus to be fixed which is particularly sketched for the judiciary.
Evidently, advocacy of technology in court processes elevates many policy questions on topics neighboring access to justice, impartiality, lucidity and vis-a-vis discretion of individual judges. The JALDI (Justice, Access and Lowering Delays in India) inventiveness at the Vidhi Centre for Legal Policy has put forward some of these concerns in the report ‘Open Courts in the Digital Age: A Prescription for an Open data Policy’.
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Several technical issues with VC that should be hunted through are:
• Possession of copyright to the online footage, and limitations on reusing/ reproducing the footage by individual people(s).
• Evolution of tools to house regional languages online to go across English-speaking citizenry; Furnishing courts with sufficient tools for secure data storage,
• Limiting the scope of principles of privacy acknowledged in open courts jurisprudence and legislations to only certain exceptions such as cases of sexual offences, juvenile justice, certain family disputes and national security, among others.
On the other hand, one more practical issue which is Indian-specific is that in India, there are 24 High Courts, more than 600 District courts and other subordinate judicial institutions. The figure of setting up and installation of essential features and virtual mechanism will surely need a colossal amount of investment. To alter the judicial mechanism into a remote-working triumphant ‘virtual’ world, technological up-gradation, development and investment in court are quintessential.
Nevertheless, virtual matters were taken up only in some cases whereas physical hearings were held in most. During the pre-COVID times, the add on to the pile of unsettled cases in all the courts was about 5.7 lakh cases per year. But in 2020 alone, it added to make a total of 51 lakh. It seems as if a hybrid virtual hearing model as well as a complete physical model as in the pre-COVID times is not endorsed, then the backlog of the unsettled cases could cross 5 crore mark in 2022.
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And hence, the dysfunctional justice system would be perpetually overwhelmed. Besides this, one crucial facet which gets neglected is that, will speedier justice lead to downturn of the quality of justice?
We need to assure that the fastened delivery of justice is not taken up at the cost of the efficiency and effectiveness of justice. As for having a more efficacious justice system, the technology should be accessible to each and everyone.
The answer why India is still not having a full-fledged mechanism of e-courts is the presence of several loopholes into the implementation methods. It has been seen that several district and subordinate courts don’t update the National Judicial Data Grid (NJDG)6 which sets aside the motive of having accountability in the functioning of the judicial system of the nation.
Also, many a times we distinguish the court system from the legal community. The legal society of our nation comprises of litigants, law firms, judicial officers, and every staff functioning in this domain. They are the backbone of the legal structure of the nation. And hence, for the reformation and evolution of a specific institution, it’s mandatory for the others also to upgrade themselves. Even law firms need to adapt the technology and more towards setting up for what we call “virtual law firms”.
This has also been taken into consideration by the Supreme Court as seen in its remark,“Virtual hearings cannot be a norm, courts have to function physically.”
CONCLUSION:
The Supreme Court must, having a prime concern, work along multidisciplinary experts to certify that technology inoculation in the judiciary doesn’t takes place at the cost of inherent principles of justice. Our judiciary’s retaliation to this pandemic, while laudable, is the initiation of a long expedition towards technology integration, which must done in a lucid and accountable manner.