The Perplexity of Virtual Justice
SECOND PLACE ARTICLE: The author, Jane Christina is a third year student at St. Joseph's College of Law, Bengaluru.
This article is an attempt to bring forth the actuality of how the ongoing pandemic of COVID-19 has disrupted the functioning of the criminal justice system throughout India, thus, adversely affecting the very foundation of our judicial system. The judiciary plays the most vital role in safeguarding the rights of an individual and is the sole dispenser of justice. However, owing to the pandemic the inability as well as the incapability to employ conventional legal methods in the process of adjudication has brought about another set of serious concerns which need to be addressed at the earliest. Judges across various courts of India have estimated that if swift and appropriate steps are not taken by the government then it will cause huge burden upon the general public and the judicial system as some estimates suggest that there are over 3 crore pending cases in India, out of which over 60,000 are pending Supreme Court alone. Thus, even if there is complete easement of all lockdown restrictions, it will take months to consider normalcy for the judiciary as a whole.
INTRODUCTION:
On 30th March 2020, The Supreme Court of India said that “it was necessary that all courts throughout the country respond to the call of social distancing to ensure that they do not contribute to the spread of the virus”[1] and though the purpose of this comment was to safeguard the health of the public, the abrupt halt in the functioning of the entire judicial system resulted in a complete detachment of the most important principle of every democracy which is to follow the due process of law at every stage of the trial. Therefore, the role of the judiciary as parens patriae (parent of the nation) is most necessary and must be constantly accentuated especially during these challenging times. The following are a few questions that one must be aware of when it comes to the pivotal changes that the judiciary is currently facing:
CAN THE VIRTUAL COURT SYSTEM SUSTAIN AND REPLACE THE CONVENTIONAL JUDICIAL SYSTEM IN INDIA?
On account of the pandemic, the Supreme Court of India on 6th April 2020, invoked its powers under INDIA CONST. art, 142, by issuing directions to state officials of the National Informatics Centre (NIC) to affiliate with various High Courts and formulate a plan for virtual functioning of courts through telephone or video conferencing facilities and this plan would therefore also be followed by the District Courts of their respective High courts accordingly[2]. However, on 28th April 2020, the chairman of the Bar Council of India, Mr. Manan Kumar Mishra wrote to the Chief Justice of India saying “90% of Advocates and Judges throughout the length and breadth of this country are themselves unaware of technology and its nuances and some of them even after training might find it difficult to be self-sufficient in this regard”[3]. Supreme Court Judge, Justice D.Y. Chandracud said “I want to dissuade people from the idea that virtual court hearings are some sort of a panacea. It will not replace physical court or be a substitute for physical court hearings. We had to resort to virtual court hearings because Covid-19 descended without warning and we had no other choice. We had to protect those who come to court – lawyers, litigants, media personnel, para-legal, interns[4]” thus, it should be acknowledged that the virtual court system can in no way replace the traditionally established judicial system in our country.
CAN THE PRINCIPLE OF OPEN COURT PROCEEDINGS BE COMPROMISED WITH, REGARDLESS OF A GLOBAL PANDEMIC?
The Open Court principle finds its origins from a portion of the highly-esteemed Magna Carta, which translates to “no one will we sell, to no one will we refuse or delay, right or justice...”, ideating not only the right of litigants to have their case resolved by Court, but also the right of the public to attend legal proceedings[5]. In current circumstance of an ongoing pandemic, the predominant concern is that the virtual court proceedings are not being open for the public to view, the excuse given is that these government facilities are only restricted to judges and the counsels representing the parties, whereas Article 145(4) of the Constitution of India provides that no judgment shall be delivered by the Supreme Court in any other manner than in an open court. Section 327 of the Criminal Procedure Code (CrPC) and Section 153-B of Civil Procedure Code (CPC) also mandates open court hearings in all criminal and civil cases[6].
In the case of Naresh Shridhar Mirajkar & Ors Vs. State of Maharashtra it was held that “Public hearing of cases before courts is as fundamental to our democracy and system of justice as it is to any other country”[7] and in the recent case of Swapnil Tripathi Vs. Supreme Court of India (2018) the Supreme Court commented on the issue of online court proceedings that “access to justice can never be complete without the litigant being able to see, hear and understand the course of proceedings first hand”[8] thus making it explicit that the principle of open courts should not be compromised with, even amidst the ongoing health emergency[9].
DOES PHYSICAL PRESENCE IN A COURTROOM PLAY AN IMPORTANT ROLE IN THE PROCESS OF ACHIEVING JUSTICE?
Out of all the above listed concerns, the most grievous concern of an online court system is the inability to be physically present in court which immediately places the lives of all people involved at peril. Taking note of the global pandemic, the Supreme Court said that from 16/03/2020 it will only take up urgent matters inside its courtrooms and through video conferencing facilities[10] however, there is no mention of what qualifies as an urgent matter and what does not and even if it is urgent, justice can never be fully accessible during a pandemic and especially not through a virtual platform like video conferencing.
Few other important factors against the virtual court system are: –
1. The importance of investigating police officers to be present in court during the hearing- The basic duty of the police forces is to register cases, investigate them as per the procedure laid down in the Code of Criminal Procedure (CrPC) and to send them up for trial[11]. However, the police department is now overburdened with the task of making sure that all persons adhere to the rules imposed by the government during the lockdown period, thus making it very difficult to conduct thorough investigation and to appear in court for cross-examination and so on.
2. Lack of consultation- As lawyers/advocates occasionally find need to consult their client during the hearing and the same applies to judges, when there is a two judge bench or more, it is imperative for the judges to consult each other during the hearing in order to arrive at a mutual agreement.
3. Unreliable testimonies and evidence- Witnesses play a pivotal role in bringing an offender to justice and without physical presence of the witness, it is very difficult for a Judge to evaluate the testimony of a witness as physical presence can serve important expressive functions which cannot be done outside the uncomfortable and imposing conditions of a court hall.
4. Ignorance of protection pertaining to victims, witnesses as well as the accused - The criminal justice system has a responsibility to ensure victims witnesses, accused and all other stakeholders in the case feel equally safe during the entire process of adjudication. In the case of Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, the Supreme court held that “the state is the protector of its citizens and the state has to ensure that during the trial in the Court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed”[12].
5. Deprivation of anonymity of victims- When it comes to sensitive cases where the victim of a crime decides to remain anonymous, the virtual court system does not allow it because all activities on online platforms are being recorded and stored with or without the consent of the user. In the case of Delhi Domestic Working Women's Forum Vs. Union of India, the apex court emphasized that it is empirical that the anonymity of
victims of rape is maintained as they are the key witnesses in the offence of rape”[13].
DO THE MERITS OF THE VIRTUAL COURT SYSTEM INVALIDATE ITS DEMERITS?
The virtual court system does have its merits however, The crux of the matter, are issues like absence of a legislative framework that accommodate an online court model, the alleged increase in frivolous suits on an online platform, danger of identity theft or the high-risk involved while litigants share their personnel documents online, falsification of evidence, lack of a unified portal - the Supreme Court had initially directed litigants to use an app called Vidyo to conduct video conferencing, however there have been many instances where apps like whatsapp, zoom, and other conferencing tools were also used[14] thus raising serious questions of the security of judicial proceedings all of which have emerged due to the switch from the conventional legal proceedings to a virtual set up of court proceedings[15].
The most popular assumption of a virtual court system is that it is much faster and much more efficient than conventional court proceedings; however this is not the case. As on April 26, the Supreme Court had been operational through virtual courts for 17 days and during the span of 17 days, the Supreme Court heard 593 cases (out of which 203 were connected matters), pronounced 41 judgments, decided 84 review petitions and convened over 87 benches. Whereas, as stated by Senior Advocate Menaka Guruswamyon, on an average Monday, the Supreme Court Judges are able is hear 70 cases in each of the 14 court halls, making it an approximate of 980 cases heard just in a day[16]. Thus raising further concerns and taking cognizance of the various discredits regarding the functioning of virtual courts in India.
CONCLUSION:
As a consequence of the pandemic, the present system of justice is totally out of place and out of tune with democratic procedures and norms of this country. However, it must be recognized just like any other institution of society, the judiciary has been constantly trying its level best to keep up with the present trends in order to tackle the COVID-19 virus by safeguarding the lives and health of the public as well as members of the judiciary. As retired Justice S.R. Singh said, "The courts are useful only if you are alive. [In the face of the pandemic], there was no option other than a lockdown. It is a matter of public interest”. Adding to this, the government and the public must also be mindful of the questions raised in this article so that by keeping these conversations going, we are able to manifest a collective responsibility in the attempt to make justice accessible to all.
[1] Press trust of India, Top Court Issues Guidelines for Court's Functioning Amid COVID-19 Crisis, (Apl 6. 2020, 06:20 PM), https://www.ndtv.com/india-news/coronavirus-india-supreme-court-issues-guidelines-for-courts-functioning-amid-covid-19-crisis-2207142. [2] K.Subramanian, The epidemic and ensuring safety in court, (May. 11, 2020, 01:12 AM), https://www.thehindu.com/opinion/lead/the-epidemic-and-ensuring-safety-in-courts/article31552305.ece. [3] Akshita Saxena, 90% of Advocates and Lawyers unaware of technology, (Apl. 28, 2020), https://www.livelaw.in/top-stories/90-advocates-and-lawyers-unaware-of-technology-bci-chairman-writes-to-cji-advising-against-continuation-of-virtual-hearings-post-lockdown-read-letter%20155917#:~:text=%22I%20can%20emphatically%20say%20that,even%20with%20training%20to%20make. [4] Murali Krishnan, Virtual courts not a substitute to physical courts: Justice DY Chandrachud, (May 24, 2020, 08:25 PM), https://www.hindustantimes.com/india-news/virtual-courts-not-a-substitute-to-physical-courts-justice-dy-chandrachud/story-8YrTg4dmP2IKzFJMnDrdqK.html. [5] Pramod Kumar Dubey, Virtual Courts: A sustainable option?, (Apl.12, 2020 , 11:44 AM), https://www.barandbench.com/amp/story/columns%2Fvirtual-courts-a-sustainable-option. [6] Arjit Prasad, Virtual Courts- Can it Replace Open Court Hearings, (June 21, 2020, 01:20 PM), https://www.indialegallive.com/top-news-of-the-day/news/virtual-courts-can-it-replace-open-court-hearings. [7] Naresh Shridhar Mirajkar & Ors vs. State of Maharashtra, https://indiankanoon.org/docfragment/1643138/?formInput=blitz. [8] Arjit Prasad, Virtual Courts- Can it Replace Open Court Hearings, (June 21, 2020, 01:20 PM), https://www.indialegallive.com/top-news-of-the-day/news/virtual-courts-can-it-replace-open-court-hearings. [9] Risha Kumari, COVID-19 urges Courts in India to go Online: Pros and Cons of Court Hearings via Video Conference, (May 21, 2020, 12:52 PM), https://indianlawwatch.com/covid-19-urges-courts-in-india-to-go-online-pros-and-cons-of-court-hearings-via-video-conference/. [10] Monisha Mondal,The Print Supreme Court to only hear urgent matters from 16 March due to coronavirus threat, , (Mar. 13, 2020, 07:57 PM), https://theprint.in/india/supreme-court-to-only-hear-urgent-matters-from-16-march-due-to-coronavirus-threat/380791/. [11] Madan Lal Sharma, The Role and Function of Prosecution in Criminal Justice, https://www.unafei.or.jp/publications/pdf/RS_No53/No53_21PA_Sharma.pdf. [12] G. S. Bajpai, Witness in the Criminal Justice Process: A study of Hostility and Problems associated with Witness, (2009), https://bprd.nic.in/WriteReadData/userfiles/file/201608240419044682521Report.pdf. [13] Devika Agarwal, Anonymity for rape victims: Law must strike delicate balance on holding internet intermediaries liable, (June 9, 2018, 11:21 AM), https://www.firstpost.com/india/anonymity-for-rape-victims-law-must-strike-delicate-balance-on-holding-internet-intermediaries-liable-4503863.html. [14] Civilsdaily, [Burning Issue] Judiciary in Times of COVID-19 Outbreak, (May 12, 2020), https://www.civilsdaily.com/burning-issue-judiciary-in-times-of-covid-19-outbreak/. [15] Doron Menashe, A Critical Analysis of the Online Court, (2018), https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1967&context=jil. [16] Puneet Nicholas Yadav, Do Virtual Courts Reserve Access To Justice Only For The Privileged Few?, (May 11, 2020, 12:09 PM), https://www.outlookindia.com/magazine/story/do-virtual-courts-reserve-access-to-justice-only-for-the-privileged-few/303146.