Procedural law in India requires statements to be made in the presence of the magistrate to ensure it is made without duress. In video conferencing, the entire process is depersonalised.
The spur of necessity pushes for innovative changes in the manner how we live; run our businesses; conduct our affairs and even the manner in which we resolve our disputes. As efficiency, the ratio of output to input, became the buzz word and the focal point of the brain-storming sessions in every industry, the legal sector too was not left untouched.
Even before the Covid-19 pandemic, lawyers and courts were using artificial intelligence-based case management systems that made legal practice simpler. From my initial days in legal practice, where junior lawyers sprinted from one court room to another keeping tabs on cases to today where the cause list can be accessed online and is updated every 30 seconds, there has been a virtual overhaul of the case management system. I really don’t know how we functioned. The erstwhile system has become a blur!
However, in the Covid-19 times, we are faced with the unique challenge of conducting court hearings while maintaining social distancing. That is quite a challenge considering the number of people, lawyers, juniors, associates, interns, clients with their supporters. Many courts were experimenting with different systems to reduce the clogging. During these dire times, the response from the top court of the country to switch to video conferencing for conducting hearings was both prompt and effective. Although one can only hope that this is a temporary phase and once normalcy is resumed, social distancing mandate relaxed, things will be back to as they were. But an interesting debate has been stirred regarding introduction of Virtual Technology in the justice delivery system, particularly in court hearings and filing of cases.
With economic activities having come to a grinding halt, the big law firms; corporate law firms etc. employing hundreds of lawyers have realised the futility of maintaining huge office spaces at considerable investment and expense. Such firms, working in a highly industrialised corporate sector, possess state-of-the-art digital infrastructure and therefore can successfully explore the option of reducing their real estate requirement by opting for the work from home model. However, dispute resolution/litigation has certain peculiarities which will make the transition to virtual courts difficult.
To what extent will the virtual courts/online dispute resolution make inroads and replace the existing set-up? Are we looking at a total substitution of the crowded court premises with virtual courts?
The answer lies primarily in identifying the type of disputes which can be successfully resolved using virtual hearing and artificial intelligence.
Disputes which can be settled through Alternate Dispute Resolution (ADR) are one such category where the AI techniques are employed successfully. ADR came to occupy the place it has today owing to the delay in resolution of disputes through the traditional infrastructure of Courts as trials took indefinitely long and consequently, the outcome of the case availed no benefit to the successful party and the victory was only pyrrhic. The quest for making ADR efficient, faster and cost effective has taken ADR to online platforms as ODR (Online dispute resolution- to borrow the phrase from www.odr.in). ODR is a step ahead of the ADR process where claims are filed on an online dispute resolution forum and the verdict is given without the parties ever having to be personally present.
The Supreme Court of India already employs Artificial Intelligence for identifying cases involving similar questions of law. This method has been successful in reducing the pendency of cases, particularly in the field of taxation, with great success. “Justice can be equally done without robes or congregation,” said the Hon’ble Chief Justice of India while commending the use of virtual tools.
Such proceedings of the constitutional courts i.e. the Supreme Court and the High Courts, which do not require much face-to-face interaction; and proceedings of specialised tribunals such as the Company Law Tribunals, Income Tax Tribunals, TDSAT etc; proceedings that can be carried on the basis of written submissions and documents which can be filed online obliterating the need of physical filing may be another category where virtual hearing can be successfully implemented.
We have a vast country of 135 crore with a pendency of around 3 crore cases and access of digital technology limited to a minuscule portion of the population. In a judicial system informed by the principle laid down in Naresh Shridhar Mirajkar v. State of Maharashtra  3 S.C.R 744 which had held that Article 19 of the Constitution included the right of journalists to publish reports of court proceedings thereby accentuating the fundamental legal maxim that justice should not only done but must be seen to be done, a complete turnaround of court proceedings to a virtual world does not seem to be an acceptable solution. We can however evolve in the constitutional courts the much-needed procedures of written submissions and time restricted oral hearings. Live streaming as directed by the Supreme Court in Swapnil Tripathi’s case can aid in reducing the jostling crowds who have a right to the hearings but their rights need to be balanced with rights of health and life by optimisation of digital technology. Structuring court hearings is also an imperative. The old world has to give way to a new discipline at all quarters.
The proceedings in the trial courts–the traditional criminal and civil proceedings stand on a different footing as they require examination and cross-examination of witnesses, production of physical evidence, recording of testimonies etc. For example, the procedural law in India requires statements to be made in the presence of the magistrate, this requirement ensures that the statement is made without duress etc., and therefore requires the personal presence of the maker of the statement. However, in case of IT-enabled video conferencing such assurance will be pyrrhic as the entire process is depersonalised.
The other impediments being;
Lack of basic IT knowledge amongst lawyers particularly in smaller centres. This sentiment was expressed by the Bar Council of Delhi on behalf of lawyers who were unable to avail the video conferencing facility owing to lack of technical know-how. The same was reiterated by the Bar Council of India in its letter to the CJI.
The issues related to cyber-security of the proceedings and the exclusion of interference by third parties (read hackers) with the proceedings.
The unauthorised recording of the proceedings and retransmission of selectively edited parts.
The current evidence law relating to electronic evidence is in a flux and not yet crystallised, e.g. the question of requirement of Section 65B certificate for admissibility of electronic evidence has now been referred to a larger bench.
Unavailability of IT infrastructure at the lower court levels.
The dedicated electronic/virtual systems as that of nuclear fuel complexes, which are guarded by extremely sophisticated security systems, have been hacked into without a trace for months. This only goes to add to the fear of tampering with evidence and electronic record in cases of e-filing and e-storing of evidences.
e.g – NotPetya a ransomware attack that beginning in 2017, caused more than $10 billion in global damages.
Another widely reported incident is when the website of the permanent Court of Arbitration in The Hague went offline during a hearing of the South China Sea dispute. This was attributed to Chinese hackers!!!
Thus, the fear that the trial proceedings can be tampered with by an interested party is not mere fanciful thinking.
Advocacy requires keen sensitivity to the words and body language of the witness and judges, and some might say that video conferencing affects that aspect as the whole process is depersonalised.
However, these are concerns which will eventually be answered by technological advancements and can at best be categorised as teething problems and need not keep us from discussing the changes, an opportunity which this otherwise grim period offers. It is difficult to predict how the events will unfold and whether the present system of brick and mortar court houses can be replaced by virtual court houses. But what can be said with a great certainty is that the justice dispensation system as we know it is going to change drastically and this change should be embraced.
Pinky Anand is a Senior Advocate and Additional Solicitor General of India