The mushrooming of COVID-19 marred every activity in the world. People from every stratum of society are affected. The Judicatures of all over the world had to depend on computers for the continuance of the Justice Delivery process. Excluding virtual hearing and online filing of cases, our Judges have been using computers for a long time now. Some of the areas where computers have been used are:
1.Online database of case laws.
2.Query seeking system.
3.List generation of cases with their history.
Furthermore, the Indian Judiciary in a unanimous move has taken a step forward with the advent of virtual hearing of the cases. It is to be noticed that Bombay High Court has had the system of e-filing of cases since the year 2011. On the recommendation of Hon’ble Chief Justice of India R.C. Lahoti, an e-committee was formed by the Government of India in 2004 which strengthened the roots of the Indian Judiciary in Information and Communication Technology (ICT). The e-committee in the year 2005 articulated the National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian Judiciary. The National Policy, 2005 necessitated some requirements which were mandatory for the effective functioning of the newly transformed Indian Judiciary, using software that is time-effective and is equipped with a well-organized interface.
An electronic-committee is a body constituted by the Government of India in pursuance of a proposal received from the Hon'ble Chief Justice of India to constitute an electronic committee, comprising of members from the judiciary, who will assist him in drafting a National Policy on computerization of Indian Judiciary while helping with the technical communication and management related changes. Underneath Integrated Mission Mode Project, a national e-governance project, ground-level implementation was done in phase I of the project, wherein, computer complexes, computer server rooms, and judicial service centers were set up. Following the successful completion of phase I, the project was renewed for phase II in January 2014. The phase II of the National eGovernance Plan was to develop infrastructure at a central level. Software competency and compatibility were checked and improved. The availability of video-conferencing and digitization of case records was taken up during phase II. This committee is presently headed by Chief Justice D.Y. Chandrachud.The Supreme Court of India allowed audio-video enabled hearing through an order dated 6.04.2020. Only the cases seeking urgent relief can be taken up for hearing. The procedure of an urgent listing of matters is what the court decides. For an individual to secure his/her place for urgent hearing of the case during these problematic times, an application is required to be filed through the official website of the respective court. A document to seek urgent relief, praecipe, has to be submitted. After the successful completion of the procedure, the court decides about the urgency of the matter.
KINDS OF CASES TAKEN UP FOR E-TRIALS
The lower courts of India granted bail to 54,677 people and settled 120,904 bail petitions through online mode of hearing. 685 children, who were jammed in juvenile homes, were handed over to their guardians.
Supreme Court of India took suomoto cognizance of the stumbling block of overcrowded prisons. The Court declared the release of undertrial prisoners and the convicts who were on bail or parole. In an accountable move, children in Juvenile homes, packed like sardines, were released and directed to be rehabilitated with their family; wherever possible. High Profile cases of journalists ArnabGoswami and VinodDua were taken up by the apex court and Himachal Pradesh High Court, respectively, through video-conferencing. The legal dispute of restoration of the internet services of Jammu & Kashmir was taken up through virtual court services. The legal tussle of whether or not it is accurate to provide reservation to the in-service candidates in post-graduate medical degree courses was also undertaken for hearing. The sensitive cases of SafooraZargar and JNU clashes were up for virtual hearing. The case of Padmanabhaswamy Temple was settled through video-conferencing, hereby, rightfully defending the rights of the Travancore royal family.
OTHER JUDICATURES vs. INDIAN JUDICIARY
According to the data of the National Informatics Centre (NIC), the Indian Judiciary settled the maximum number of cases through video-conferencing as compared to the courts of the United States, United Kingdom, Australia, etc. United States Supreme Court has heard arguments over the telephone. In Michigan Courts, where it was for proscribed to bring mobile phones into the courtrooms, has put in more than 500,000 hours of online hearing since late March. The State of Michigan has expanded the method of online dispute resolution to all its 83 counties. Bangladesh Cabinet cleared the draft of an Ordinance known as, The Ordinance for the usage of Information and Communication Technology by Court, 2020. This ordinance aims to smoothen the functioning of courts by providing digital means, infrastructure, and Information Technology solutions. In an appreciative pace, the ordinance was cleared on 9th May 2020 and virtual courts were set-up by 11th May 2020. The Supreme Court of Canada which used to live stream the proceedings through its own website prior to the COVID-19 outbreak has resorted to the video conferencing method post-pandemic. The Courts in the United Kingdom have been in touch with audio-video enabled ambiance for over a decade. As a part of ‘special measures’ to empower a vulnerable witness, pre-recorded cross-examination has been admissible in court under section 28 of the Criminal Evidence Act, 1999 in England and Wales. The Access to Justice Act, 1999 permits the admissibility of audio and video evidence in bail, sentence, family, and criminal hearings.
WHAT DOES THE LAW SAY?
The digitization process within the Indian Judiciary began in the 1990s with the installment of computers within the courtrooms. There has been a legal tussle between open and virtual courts lately. The legitimacy of virtual courts has been challenged as being in violation of Article 145(4) of the Constitution of India, Section 327 of the Code of Criminal Procedure and section 153B of the Code of Civil Procedure. Article 145(4) of Constitution of India reads as:
“No judgment shall be delivered by the Supreme Court except in open Court. No report shall be made under article 145(4) except in accordance with an opinion also delivered within the open Court.”
In the wake of the general public health emergency, the Apex Court of India resorted to its powers embedded in Article 142 (1) of the Constitution of India.
“The Supreme Court within the exercise of its jurisdiction may pass such decree or make such order as is significant for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as could even be prescribed by or under any law made by Parliament and, until provision in therein behalf is so made, in such manner just like the President may by order prescribe.”
The question stands: Whether the evidence is recorded through the medium of video conferencing conform to its definition?
The definition of Evidence as per Section 3 of the Indian Evidence Act,
“Evidence includes all the statements which the Court permits or requires to be made before it by the witnesses, in connection to the facts under inquiry.” Also, all documents, including electronic records, produced for the inspection of the Court shall be considered as evidence.”
Ergo, an electronic record may be a sort of documentary evidence. It is often inferred that any evidence which is stored, recorded or copied in the form of digital media shall be considered as a document.
“Any information contained in an electronic form which is printed on a paper or stored or recorded or copied, while it being a digital media produced by a computer shall be deemed to be a document.”
In the case of State of Maharashtra vs. Praful Desai, Arguments were raised on whether or not the presence of an individual through video conferencing amounts to ‘physical presence’? Is the virtual presence of the accused similar to physical presence?
In the above-mentioned case, interpretation of the phrase ‘presence of the accused’ was made in light of Section 273 of Cr.P.C. The supreme court said, if an individual is watching a match on his/her TV, it can't be said that he/she is within the presence of the players but it'll be considered that the match is being played in his/her presence, he's a spectator. Ergo, this is often not a virtual reality but actual reality. Hence, the web presence of an individual shall be deemed to be the particular presence of that person, which suggests evidence are often recorded, as long as both the parties consent thereto. The way of video conferencing is competent with section 273 of Criminal Procedure Code, 1973 which says,
“Except expressly provided, all evidence taken within the course of the trial or other proceeding shall be taken within the presence of the accused, or, when his personal attendance is dispensed with, within the presence of his pleader.”
Through an amendment in the year 2009, a proviso was added to the subsection (1) of Cr.P.C. section 275, which is as follows, Section 275 says, “In all cases tried before a Court of Law, the evidence of every witness shall, as his examination proceeds, be taken down in writing either by the Hon’ble Judge himself or by his dictation in open Court or, where he is unable to do so due to a physical or other incapacity, under his direction and superintendence, by an office-bearer of the Court appointed by him in his behalf.”
The proviso added was, “Provided that evidence of a witness under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.”
Therefore,it is accurate to say that evidence recorded through video conferencing is admissible.
In the case of SwapnilTripathi vs. Supreme Court of India, the petitioners argued that proceedings of Constitutional importance have influence on public; therefore the proceedings should be livestreamed for the general public through a platform which is easily accessible to such a large audience. The Supreme Court admitted that live streaming of proceedings is within the rights of the people of India, being a part of access to justice, but denied absolute rights of the people and provided with Model Guidelines about where the information from such a broadcast can be used. The Court professed that in 2014 the Advisory Council of the National Mission of Justice Delivery and Legal Reforms had proposed introducing audio-video recordings into Court proceedings on an experimental basis but that a final decision was deferred until the judges of the Supreme and High Courts could be consulted. In the case of SwapnilTripathi vs. Supreme Court of India, the Court recognized the importance of entailing judges in decisions regarding the use of live streaming in court proceedings to “ensure that the dignity and majesty of the Court is preserved, and, at the same time, address the concerns of privacy and confidentiality” and to prevent unrest in the above-mentioned case.
Times like these call for renovation, re-establishment and rectification of the existing models. Indian Judiciary, too, underwent these reformations and molded itself into a better organizational structure. Being a principle pillar of Indian democracy, measures had to be taken to dispatch justice ceaselessly. Justice waits for none. The initial clever steps of digitalizing the process of dispatching justice paved a way for further advancement of the technology in the world of judiciary. While India was at the tail end of technological advancements when compared with United Kingdom’s judicature, a country which had permitted audio-video appearance of the vulnerable witnesses about a decade ago, India’s Judicial System is booming with the country being at par with other countries and more, having settled most number of cases in the world through virtual means. Whilstlegal luminaries claiming virtual hearings are choking the justice system by not providing access to the proceedings to the public, it has to be understood that urgency calls for measures like these. Given the circumstances and medium of settling the cases, the work has been done gracefully by the Hon’ble Justices. Let alone the setbacks of technology, whether being technical or network glitches of remote areas or the novelty of the modus operandi, the world of Judiciary has set a strong precedent.Although open courts build trust in judiciary, virtual courts provide speed and efficiency to the system. The embedded truth is, it is not virtual court vs. open courts, it is virtual courts plus open courts. With virtual hearing for bodies such as National Green Tribunal (NGT) and India's Income Tax Appellate Tribunal (ITAT) already in place, it is in due season that the measure of modifying the crucial pillar of Indian democracy be praised.
1.Criminal Procedure Code 1973, Section 275. <http://legislative.gov.in/sites/default/files/A1974-02.pdf> accessed 26 July 2020
2.(2018) 10 SCC 628.