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(Srishti Nigam and Snehil Ajmera are second and third year students respectively, at Maharashtra National Law University, Nagpur) The whole world is shaken by the outbreak of the pandemic COVID-19 which has put almost every activity on halt. At the outset of such a difficult time, we find that technology is marked as a panacea for each nation. In this difficult time, everyone has started working from home and judiciary is no exception to this. Due to this crisis even they have started functioning virtually by taking up the matters through video conferencing. All of this raises some questions as to the aspect of access to justice, which is a constitutional goal for our country. The words ‘Access to Justice’ immediately stir up in our mind the idea that every person who seeks justice must be provided with the requisite opportunity to approach the Court of Justice. Delivery of justice is essential in dispensing the rights of the citizens whose life-long earnings are exhausted during the pending trials. Some measures have been taken, in this regard, by the courts of our country. The courts will now use virtual-hearing in all matters including bail applications, remands and in criminal trials and civil suits where a witness is located intrastate, interstate, or overseas. Further, there is no bar in examining witnesses by way of virtual-hearings. This paper goes on to analyse these measures. COVID-19 & Courts The outbreak of COVID-19 in India has brought put a stop to the functioning of several businesses and industries, also resulting in amending the working process of many essential services. The Health Ministry and the Central Government have excluded the essential services from the requirement of putting a halt their services so that they can be useful in serving the citizens of the country. Further, during this pandemic, the apex court has realized the importance of the situation and suo motu passed guidelines for court functioning through virtual-hearings during this COVID-19 pandemic. Dispensing of judicial services through video conferencing is an essential service. The social distancing norms in order to prevent the spread of the pandemic have pushed for a change in the functioning of the judiciary. In National Textile Workers’ Union v. P.R. Ramakrishnan, the Court in Para No. 9 laid down the opinion that “Law must constantly be on the move adopting itself to the fast changing society and not lag behind”. The court adopted the latest technology and started virtual hearings as per the guidelines issued by the Supreme Court and various High Courts. In SomPrakash v. State of Delhi, the court rightly observed that “in our technological age nothing more primitive can be conceived of than denying discoveries and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only thereby discouraging the liberal use of scientific aids to prove guilt.” The court also justified the practice of virtual-hearings for taking evidence in State of Maharashtra v. Dr. Praful B. Desai. Thus, the insertion of Sections 65A and 65B in the Evidence Act by virtue of the enactment of Information Technology Act, 2000 which provides for the admissibility of electronic records and to evidence relating to electronic records, is helping Judiciary in this online mode. Access to justice especially to the helpless people not only strengthens the rule of law in a country but also has a direct impact on an individual’s quality of life. Virtual-Hearings: A Trump Card Virtual-hearings have proved to be life-saving during the period of COVID-19 in legal environments. As normal life has been blocked, the court started functioning virtually and have been a positive addition to the lives of all the stakeholders, i.e., judges, advocates, administrators etc. Otherwise, all of them dealt with the risk of contaminating themselves by congregating in courts. The advantages of virtual hearings are as discussed below:
Issues & Challenges In Way Of Virtual-Hearings Indian Courts lack sufficient infrastructure for conducting virtual-hearings without any security threat. There is neither any indigenous technology nor any proper and safe software which does not lead to a security threat. Today, the applications like Zoom used by our courts have their origins in foreign countries, and the possibility of a transfer of data to non-Indian actors can’t be denied. The possibility that the judicial and other government data can be exploited and used against our country is something that should give us all a pause. As Neeta Verma, the Director-General of National Informatics Centre, observed-“All the videos are stored on a secure government server and cannot be accessed by anyone else...The app is hosted on our own data centre and is end-to-end encrypted ensuring complete security.” The activist K.N. Govindacharya, in a recent PIL filed by him on this issue, said “the government and the judiciary should use video-conferencing software provided by the National Informatics Centre (NIC). In case NIC does not have such sophisticated software, then it should audit a suitable one from a private vendor for the government and the judiciary.” The petitioner also stated “…Transfer of data, especially governmental and judicial data outside India impacts national security and contravenes the Public Records Act, 1993, the Official Secrets Act, 1923, the Email Policy as well as Policy for usage of IT Resources of the Government of India. Transfer of data, which inevitably takes place as a result of the use of foreign-based video-conferencing software, might assist, directly or indirectly, an enemy or might prejudicially affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States.” There are many other issues which indirectly affect the smooth functioning of the courts, like the using soft copies of the documents, maximum limit of file size while uploading any document, technical glitches in the software, loss of internet connectivity, procedural issues like advocates not maintaining the decorum of the court, not presenting his case in the formal outfit. The Chairman of Bar Council of India, Manan Kumar Mishra in a letter to CJI expressed that continuing virtual-hearings after the lockdown is far-fetched as 90% of the lawyers and judges are unaware of the technology. He also added that the economic disparities are rooted in the legal fraternity and everybody does not have the stipulated technological resources. Mr Mishra seemed to be opposing the view of continuing virtual hearings after the lockdown as he mentioned that “thought process may be advanced, but we cannot be jumping the gun”. Conclusion & Way Forward It is apparent that technology is acting like a windfall in this crucial time for our judiciary. Judiciary is also taking the bull by the horns in this crisis via virtual-hearings. It is making the legal system more efficient and get-at-able in the time of lockdown. The more accessible the courts are, the better justice a party can seek. Now, it is time to promote the e-filing of cases which might result in curbing the volume of filthy files lying in the courtroom. In the opinion of the authors, the practice which is adopted by the courts in this crucial time seems to have a long way to go. If all the nuts and bolts are tied in a proper way then the impediments which come in the way of access to justice can be thrown out. The pros of virtual-hearings as discussed above weigh more than the cons so its efficacy cannot be ignored. The authors would suggest that this practice, with some tweaking of the issues discussed above, can be continued after COVID-19 for a better justice delivery system. The commonly observed phrase, “Law cannot stand still; it must change with the changing social concepts and values” holds true here. The legal system is adapting this new normal change and it is pleasing to see the traditional Indian Courts handling the technology the best that they can.
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