Posted on: August 16, 2020 Posted by: Rupesh Saraf Comments: 0
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This COVID-19 pandemic and the consequent lockdown have forced the legal profession into overnight digitization. For the first time in the history of the legal profession, the Supreme Court of India and other subordinate courts are hearing matters virtually, due to social distancing norms. In fact, the Supreme Court of India is pushing for an electronic filing system, which will radically change the filing processes for lawyers. With electronic filing becoming a reality, they will be able to file matters at their convenience from any location.

This virtual revolution will make legal professionals more receptive toward embracing technology to increase efficiency. The future of the courts is greatly dependent on technology and how technology can improve their functioning. There are three basic categories of changes in courtroom technology:

– There are the technologies that legal representatives use to present arguments and evidence.

– The existence of E-documents has fundamentally changed the discovery process.

– Lawyers can use new technology outside the courtroom to start their cases, maintain their cases, and get the word out about their cases. Electronic filing, social media, and legal research have transformed the traditional work of lawyers.

A virtual court is a conceptual idea of a judicial forum that has no physical presence but still provides the same judicial services that are available in courtrooms. Access to virtual courts would, however, be limited to online access, teleconferencing, and videoconferencing.

Videoconference technology allows witnesses to testify at trial without being physically present in the courtroom. In contrast to a traditional, in-person witness, the videoconference witness is not physically present in the courtroom, but ‘virtually present’ through the use of technology.

The use of videoconferencing technology in all the cases is discussed below. In many criminal cases in India, it is necessary to have testimony from fingerprint or chemistry experts usually stationed in major cities. They are assigned to cases throughout the country and are often requested to testify on the same day in courts that are kilometers apart. Often, a trial in a small town may have to be postponed because the expert must testify in another town. If, however, closed-circuit TV (CCTV) was used, the expert could work in the laboratory until needed to appear on the screen in either of the two towns. The saving in time for many people, namely the presiding officer, legal representative, witness and the improvement of the trial calendar are obvious advantages in this situation. With real-time reporting, expert witnesses can respond instantaneously across the country.

As the world moves towards greater transparency, with mobile phone tracking movements, increased online payments, video footage of most public spaces, and data records of most conversations, one is likely to witness a drastic change in trials. In fact, this has been triggered with the inauguration of new virtual courts, which are supported by software that allows a party to point out discrepancies in the footage captured by traffic cameras before the court. Similarly, tools such as AI could prove valuable for future lawyers to scan volumes of data, audio recordings, and video data and thus reduce the time taken to complete trials. Proficiency in using these tools and a basic understanding of these technologies will enable students to effectively use technology in the profession.

To make students relevant, law schools should provide a platform to learn extensively about smart contracting, the use of blockchain in law, artificial intelligence and law, cybersecurity, data privacy, and so on.

Globally, jurisdictions are reinventing legal processes to tackle challenges of the lockdown and, in the longer run, to increase efficiency by embracing technology. Therefore legal academia must work closely with the judiciary and members of the fraternity to revisit legal curricula and pedagogy techniques. There is a need for a strong collaborative effort to devise a roadmap to tackle these uncertainties and move forward successfully.

However, while these measures are commendable, they are not sufficient. This is because of the following reasons:

The virtual system of functioning has not been adopted by all judicial and quasi-judicial institutions across the country.

Institutions that have adopted this system have only been employing it for select matters i.e. to hear and dispose of urgent/extremely urgent matters.

The current situation is unpredictable. It is impossible to say for how long ‘social distancing’ directives and restrictions on movement will remain in force. These preventive measures will likely be continued for some time even after the present threat has subsided.

In the current circumstances, it is essential that the judicial and quasi-judicial machinery takes steps not only to remain operational but to achieve maximum functionality at the earliest. The virtual court system can be of great assistance in achieving this goal.

In this backdrop, the directions passed by the Apex Court, on 6 April 2020, for the conduct of court proceedings across the country via video conferencing (VC), during the period of the outbreak of the COVID-19 pandemic are a welcome step. Broadly, the Supreme Court has directed as under:

All High Courts shall ensure the functioning of the judicial system through the use of video conference technologies and to this end, shall decide the modalities for use of video conference technologies after considering relevant factors (such as peculiarities of the judicial system in every state as well as the dynamically developing public health situation).

District Courts in every state shall adopt video conference technologies prescribed by the appropriate High Court. Courts shall make video conference facilities available for those litigants who do not have access to these facilities, including by appointment of advocates as “amicus curiae” and making video conference facilities available to such advocates (if necessary). Till such time as the High Court frame rules in this regard, video conferencing technologies shall primarily be used for hearing arguments, both, at the trial as well as appellate stages. However, evidence shall not be recorded using video conference facilities except with the parties’ mutual consent. The directions shall remain in force until such time as further orders are passed by the Apex Court.

On 7 April 2020, the High Court of Telangana passed directions for the conduct of hearings via video-conferencing in the state during the period of COVID-19 lockdown2. It is expected that other High Courts as well as tribunals will adopt similar measures in the coming days.

Separately, on 8 April 2020, the Bombay High Court issued special directions in connection with live-streaming of matters listed for hearing on 9 April 2020 before His Lordship the Hon’ble Mr. Justice G S Patel. Previously, the Kerala High Court had live-streamed its hearings for the general public via Zoom Application.

Advantages of technology

The greatest benefits of a video conference are the cost savings and hours of service availability. Traditionally, courts are open to the general public only on business days. This is, however, restrictive in that many litigants who need to access the courts also work on business days. Virtual courts can eliminate this barrier not only by allowing 24*7 in a day, seven-days-a-week access to electronic filing and other case processing online, but litigants will also be able to participate in trials by videoconference. No longer will litigants be forced to leave work to attend court as they will access proceedings from their home or office or anywhere. Thus, virtual courts would save on overheads and costs associated with operating court facilities, thus improving access to justice.

I submit that by utilizing technology, courts have already reduced the need for people to access the courts physically. As video conferencing technology improves, courts are beginning to use it for postponements in criminal matters to reduce the costs of transporting accused from correctional facilities to courtrooms. It is foreseeable that more courts will begin to use video technology to replace the need for appearances in court. In the future, trials may occur through video­conferencing with all parties’ securely accessing the court from locations of their choosing. Courts, as they are presently viewed, may become Virtual and not require litigants or staff to attend court physically.

Disadvantages of technology

To implement virtual court procedures and case processing, existing case-management systems will need to be modified or replaced to allow for new technology and remote access. It should, however, be noted that reporters of digital recording devices are sometimes unable to record statements because they are inaudible.

Conclusion

Few members of the legal profession may view these modern communication devices as a threat; others may dismiss them as mere gadgetry. It should be viewed as an opportunity for imaginative and constructive use in furthering our goal of administering justice properly and promptly. Digitizing of the legal world will not only improve access but also change the way litigators practice law.

It should be observed that the legal representative and the courtroom will continue to play the lead role as cases are simply too difficult for computers to handle alone. The client needs responsiveness, understanding, and advice that technology simply cannot provide. It is evident that with this new Technology, lawyers need to work harder than ever to stay abreast of changes in the practice of law.

Endnotes:-

  1. See: Decision passed on 6 April 2020 in Suo Motu Writ (Civil) No 5 of 2020 available at
    https://main.sci.gov.in/supremecourt/2020/10853/10853_2020_0_1_21588_Judgement_06-Apr-2020.pdf
  2. See: Notification dated 7 April 2020 at http://tshc.gov.in/documents/admin_2_2020_04_07_12_48_07.pdf read with notifications dated 27 March 2020 and 28 March 2020 available          at http://tshc.gov.in/documents/admin_2_2020_03_27_13_17_49.pdfhttp://tshc.gov.in/documents/admin_2_2020_03_27_13_17_49.pdfhttp://tshc.gov.in/documents/admin_2_2020_03_27_17_50_19.pdf and http://tshc.gov.in/documents/admin_2_2020_03_28_12_49_34.pdf
  3. See: News report dated 8 April 2020 available at https://timesofindia.indiatimes.com/city/mumbai/bombay-hc-to-make-its-video-conferencing-hearing-on-thursday-publicly-accessible-on-app/articleshow/75053737.cms
  4. See: News report dated 13 June 2020 available at https://www.thehindu.com/education/virtual-methods-of-real-time-justice/article31822123.ece/amp/
  5. Speed delivered by Justice D.Y. Chandrachud | Future of Virtual Courts and Access to Justice in India (Youtube).
  6. Thumbnail Credits- freepik.com
Rupesh Saraf
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LLB Student at Departement of Law, Veer Narmad South Gujarat University

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