An Analysis of the System of Online Court Proceedings in India
- Utkarshini Rai
A New Normal
The coronavirus pandemic has forced courts around the globe to modernise with unprecedented haste. America’s covid-19 stimulus package includes a provision for federal judges to use teleconferencing. Its Supreme Court conducted hearings by telephone for the first time. India’s Supreme Court began hearing all cases on an app called Vidyo on March 23rd. Spain held its first internet trial in May. Britain’s Supreme Court changed its rules to require all evidence to be submitted digitally. A branch of government built on precedent is now procedurally breaking it. The speed with which it is doing so means the effects are hard to predict but is certain to reshape the judicial system, even after covid-19 has subsided.
On 6th April, the Supreme Court issued guidelines for holding proceedings via video conference. Video conferencing facility has been established in each of the seven district courts for lawyers and litigants to attend the virtual court hearings at the Supreme Court, apart from the additional Supreme Court complex situated at Pragati Maidan. Anybody intending to avail of this facility has to send an intimation to email@example.com 24 hours prior to the scheduled hearing. Earlier, the Court had even allowed e-filing of cases and opened chamber blocks for lawyers wishing to attend the virtual court hearings.
It has caused us to change our mindset and adopt something which was prohibited in the past. Just two months ago, if a person was to go to court and take a photograph or even more heretical, undertake an audit or video recording, he would be thrown out and would likely be thrown in jail.
This matter of recording and filming has been a subject of great debate and discussion in many countries. It appears that photography was permitted in courts in the US till about 1925. Thereafter, restrictions were introduced. Committees were constituted and rules framed towards prohibiting or restraining photography. But in some cases, exceptions were made, such as in the trial of O J Simpson, which was telecast.
However, the US Supreme Court, since as far back as 1955, has been recording oral arguments made before it, which are available to the public online. The oral arguments have also been transcribed and put up on the same website. They are available soon after the arguments have taken place. Other countries too have been concerned with this issue.
Coming back to India, the matter of Swapnil Tripathi is very relevant. Tripathi, a student of National Law University Jodhpur, was interning in Delhi. He had worked on a particular matter and wanted to accompany his senior to the Supreme Court. However, on Mondays and Thursdays, interns were not allowed in the Court on account of a large number of matters being taken up and the fact that the Court gets completely filled up. Tripathi, was very upset that he was not permitted to go to the Court office and with the consent of his senior, filed a writ petition praying that at least live streaming should be allowed. The matter was taken up along with other matters involving similar issues.
The judgment of the Supreme Court states that it is “open to explore the possibility of live streaming”. Many conditions were provided for — the filming would be done on cameras of the Court, the copyright would belong to it, that live streaming could be heard only in a separate Court room, in the press room and in the office of the Attorney General and Solicitor General. It did not direct live streaming or even a recording, to be done on a regular basis, or permanently.
Article 145(4) of the Constitution states that all orders have to be pronounced in open court. The Constitution itself does not state that hearings have to take place in open Court. However, Section 153B of the Civil Procedure Code, 1908 and Section 327 of the Criminal Procedure Code, 1973 do state that hearings should generally be accessible to the public. So, although the Supreme Court has accepted, in principle, the concept of filming in order to make the proceedings accessible, this was at first a somewhat hesitant step.
But since the pandemic has struck, virtual courts are no longer in question. The questions now are: Under what circumstances should there be a virtual hearing, in what kind of cases, in what manner should these be conducted, and in what other ways can technology be effectively used.
The dignity of the court must be maintained and the ultimate touchstone on which such steps should be tested, is whether the cause of justice is served. Virtual courts cannot be a substitute for actual live courts. However, in certain circumstances they can supplement or step in to fill the gap. We must recognise that technology has led the way and we must use this in the best manner possible.
Virtual Court Systems in other Fora
The Central Information Commission of India has a robust video conferencing system in place. The petitioners and respondents can come to the nearest National Informatics Centre studio and appear for the hearing. This was the usual practice for daily hearings. Due to the pandemic, the only change seen is that people can join the hearing from their homes.
Scope for Improvement
Once the lockdown is lifted, it is possible that this urgency will come to an end and we will get back to the situation as it existed before. But we must use this opportunity to implement the technology available for improving the procedural and the substantive aspects of the legal process.
Permanent video conferencing facilities can be set up at district courts which can be connected to the High Courts and Supreme Court. This will give opportunity to petitioners who don’t have the resources to travel to appear for their cases. To paraphrase Winston Churchill, “Never let a good crisis go to waste!”