Virtual Hearings and the Future of Justice

“Advances in science and technology have now, so to say, shrunk the world. They now enable one to see and hear events, taking place far away, as they are actually taking place…Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence… In fact, he/she is present before you on a screen. Except for touching one can see, hear and observe as if the party is in the same room. In video conferencing both parties are in presence of each other… Recording of such evidence would be as per “procedure established by law”.” – State of Maharashtra V. Praful Desai (2003) 4 SCC 601.

It is often stated that we cannot predict the future. This truism appears to fortify both the unimaginative and the myopic to reject any foresights as meaningless. Indeed, we cannot know about the “technologies not invented yet,” however, we may anticipate some broad trajectories, if not the particular details of the times to come. After a decade or so, our courts will have been metamorphosed by tremendous innovative technologies that have not found presence yet. We are, undoubtedly, at the dawning stage of the ineluctable technological transfiguration of our courts. Artificial intelligence is one such technological transformation which is going to play a pivotal role in the organization of courts. Machines and systems are becoming capable of doing such tasks that only human beings used to do once. Artificial intelligence would surely aid in the classification of court matters and streamlining case management, hence, prove to be a boon for the effectual functioning of online courts.

   

The right of access to justice is a fundamental right guaranteed by the Constitution of India which has to be strengthened invariably in order to protect the rule of law. Article 14 of the Constitution of India ensures fairness and equality of treatment of all the citizens. The mushrooming of the Coronavirus disease (COVID-19) has precipitated the unfolding of virtual courts and hearings. Courts and tribunals all over the country have started taking effective measures for the reduction of the physical appearance of advocates, litigants, court staff, etc., while ensuring smooth dispensation of justice via virtual platforms. The Coronavirus disease has brought inordinate challenges before us which need to be confronted meticulously and thus, technological advancements must balloon to ensure that practice of law and administration of justice do not suffer in future.

The Judiciary has already embraced the e-Courts Integrated Mission Mode Project (e-Courts Project), a part of National e-Governance Plan (NeGP), which has significantly reduced obstacles girdling the concept of virtual courts. Justice D Y Chandrachud, Judge, Supreme Court of India, while speaking at a Webinar organized by Nyaya Forum, enunciated that the future of courts will be a healthy mix between the use of technology for court hearings in areas where technology is well suited but open court hearings were also needed as they constitute the spine of our system. According to the National Judicial Data Grid (NJDG), which maintains the details of cases at original, appellate, and, execution stages, all over the country, the total number of pending cases in India is 32.45 million as on May 24, 2020, out of which 9.045 million are civil cases and 23.39 million are criminal cases. Time is ripe for developing virtual courts with clear and resourceful systems which can deliver fair decisions and eventually help in the smooth dispensation of justice even in times of a pandemic.

Though, the virtual hearings are now the only option until the pandemic is over, however, we must treat these virtual hearings as a development of law rather than thinking of them as a roadblock in accessing justice, even though, there are some issues in conducting virtual hearings. A lack of know-how about technology is one of the major impediments in the burgeoning of virtual courts and online dispute resolution in India. Accessibility to virtual courts is a distant dream for those advocates who have never used computers, laptops, etc, for their works as they never required them till this unprecedented pandemic. There are numerous other obstacles in virtual hearings which may be faced with, like internet connectivity issues, network snags, etc., and these need to be addressed carefully for uninterrupted hearings. Different time zones in virtual arbitration may also become stumbling blocks in the conduct of proceedings. For example, if the parties are in New Delhi and the arbitrator is in New York, then they will have to come to terms with the different time zones for holding a virtual hearing. Another issue in conduct of virtual hearings is that there may be challenge to a judgment on the ground that the principle of natural justice was violated, etc. Even in cross-examination of witnesses, the observance of conduct and demeanour of a witness are very important which may be hindered by conducting such a cross-examination virtually.

Virtual arbitration has started to spread its wings as the pandemic continues to wreak havoc globally. The concept of virtual arbitration needs to be encouraged as the introduction of virtual procedures in arbitration proceedings would prove to be cost-effective, opportune, and, apposite in the prevailing circumstances. The parties to an arbitration have to repose confidence in the virtual arbitration proceedings and at the same time, a system which is able to withstand or overcome adverse conditions needs to be adopted in letter and spirit so that arbitration proceedings can be conducted efficaciously. The pool of arbitrators, advocates, and mediators, etc., will expand substantially as virtual hearings will make all jurisdictions accessible for the reason that the advocates or arbitrators will not have to travel for attending the hearings. Advocates can, in the comfort of their homes, appear for matters in courts of different jurisdictions. Virtual hearings will surely reduce the cost of travel, be it for arbitrators, parties, or advocates, who used to travel from one country to another or from one state to another, for their matters.

Virtual Courts are the new normal but it would surely take time for all of us to switch over from physical courts to virtual ones. The Supreme Court of India has started to lead from the front to make virtual hearings a reality while preserving the rule of law. Litigants need to trust this new system of hearing, though, it in no way, can replace physical courts but we really do not foresee any other option at present. There has to be a change in our mindsets, as aptly enunciated by Heraclitus that the only constant in life is change and we have to adapt to all the changes correspondingly. Written submissions before the hearings commence, would prove to be worthwhile in virtual hearings as those advocates who are not well-acquainted with technology will be able to put forward their points in a lucid manner, even if they miss certain points during virtual hearings. We have to look at the positive side of virtual hearings though various hurdles continue to have an impact on these hearings but a robust e-infrastructure will surely help in achieving the desired results.

The Supreme Court has risen to the occasion as always and has put its best foot forward to preserve the rule of law in our country envisaged by the Constitution of India even at this cataclysmic juncture not to forget the invaluable contribution and steps taken by the High Courts of our country in ensuring that access to justice remains approachable. The fruitful use of modern technology for enhancing justice dispensation has been profusely encouraged by the Supreme Court of our country so that hearing can be carried out effectively and successfully through virtual mode. The virtual hearings have proved to be a boon in this pandemic and the Supreme Court and High Courts deserve commendation for successfully implementing the concept of virtual courts which will further improve with the efflux of time. With these concerted efforts, everyone is confident that the virtual hearings and the future of justice look promising. Justice, physically or virtually, has to be dispensed at all times, in the words of Lord Chief Justice Hewart in the case of R v Sussex Justices ex parte McCarthy ([1924) 1 KB 256, [1923] All ER Rep 233) when his lordship stated, “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Tariq Khan is Principal Associate at Advani & Co., New Delhi and Muneeb Rashid Malik is a fourth-year law student at Lloyd Law College, Delhi (NCR). The Authors can be reached at Advocate.tariqkhan@gmail.com and muneebrashidmalik@gmail.com respectively.

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