Litigation and Virtual Courts: Prospects and Challenges

[This guest post dated 9th February, 2021 is authored by Avya Gupta, Law Student. Any query regarding this article can be addressed to her at avyagupta@outlook.com]

ABSTRACT

This article delves into the concept of virtual world of courts and litigation. In recent times each action and alteration has been due to the life altering outbreak of the COVID-19 pandemic and the legal fraternity was no exception here. The time taken to acknowledge this unfamiliar component is taking longer and so is the time taken to implement the solutions to get the work done in distinct manner possible. The litigation in courts used to take place in court rooms wherein counsels argued their case in the presence of a judge, this took a sideways turn for which a very few were prepared. When courts were shut down for a specific period of time and no fix was provided by the medical industry it was realized that the justice delivery cannot be put to halt any longer. Therefore, virtual hearing came into implementation, however it isn’t the first time courts took support of technology for deciding a matter. For example, Jodhpur bench of Rajasthan High Court was connected with the Jaipur bench in deciding a matter through video conferencing even before the outbreak of the pandemic. But to instill it in the ever regular course of law was a paradigm shift in the process.

THE PROSPECTS

With change comes challenges and with challenges come arrangements. This major and fundamental change in the way that the courtroom system works was accompanied by a wide range of challenges. Some may say that Rome wasn’t built in a day but at least the plans and foundations were laid. When discussing its possibilities, proclamations fly by expressing AI replacing the judgment delivery by humans, while that seems like a distant idea, contending cases through video conferencing doesn’t. In this scenario, the judiciary has managed to strike a balance by enabling video conferencing as well as physical court hearing both posing as an option in front of the professionals in certain judiciary forums. Additionally, the disputants who needed to burn through cash on their movement for a given legal dispute needed to return disillusioned if their issues were given a further date, or were not taken up due to non appearance of their item number and were approached to come back again for the same purpose.

PRACTICAL CHALLENGES

There is no doubt about the certainty that advocates are prone to change if it’s not virtual court hearing then it’s an amendment in any statute or a court taking up supplementary maters before the main list or hearing matters not being taken up. However, any change occurring requires time to be able to get accustomed to it and so is the case with the introduction to technology in the litigation process. Meanwhile, there are various hurdles which advocates, partners and their staff seem to face that shall only be passed with time. In the field of litigation an advocate is certain to argue and it is a proven fact that while proving their facts in issue or in order to make a compelling argument body language plays an important role which gets eliminated if the advocate is constrained by that screen in front of them. Even if for a while we sideline this point, another troublesome point arises that even after years of practice there are advocates who could find themselves at a loss of funds to gain the appropriate telecommunication gadgets and high speed internet services which is a major necessity considering the current circumstances. Although the respective bar associations provided for a mandate to avail financial aid since there was no fresh filing taking place which resulted in no new income respected advocates couldn’t do anything except save their pride and honour by refraining from availing the offer. In that case no matter how good the lawyer is they will lag behind due to the uncultivated technology. Their demeanour before the court may come off sluggish in the presence of those who have managed to find resources to attain sophisticated mechanics.

Furthermore, it was observed that credible and noble advocates in a heated argument lost their flow of oratory and the convincing environment which they had created by their art of advocacy in the moment even after securing pertinent machinery due to a slight glitch in the network and the internet speed, considering the fact that almost 72% of India’s population doesn’t have internet and most of them only carry 4g on their phones. Moreover these learned ones find it demanding when it comes to operating the apps and minute basic functions of apps. It certainly is not the advocates fault or staff or the courts since there hasn’t been a precedent of time wherein they were meant to be techno savvy. For someone with negligible technical understanding, using and adapting to a fully virtual functioning courtroom system is more than just a challenge, it’s like feeling handicapped. The base of this problem lies in lack of time to get trained on the part of lawyers, their staff, partners and courts themselves which can be fixed.

Junior advocates become minimalist when they can’t assist their senior in an ongoing case and so is the case with the young bar that started on just about now. Since physical court proceedings were at a halt the advocates were appearing from their own place of work itself. Although the matters which were presented before the court in the initial implementation of the virtual hearing were only the urgent matters which didn’t benefit to the presiding pendency of the cases in the Indian judiciary. There again came a time when existing courts became functioning with various precautions and a view of social distancing. For this aim the courts were to issue an entry card only to those Counsels whose cases were put up before the court due to this reason those advocates who were employed under their senior, the young bar, the interns who were interning weren’t allowed, this applied a pause on their course of work and learning specially the ones who were recently graduated and started on to make name for themselves.

LEGAL ASPECT

While touching the practical challenges of virtual courts one does stumble upon its legal aspect too. Virtual courts find themselves barring the right of having an open court. The fact that the general public including the litigants need to have a choice of viewing the court proceedings or not and that can’t seem to be fulfilled since these proceedings aren’t accessible to them. The Supreme Court in Swapnil Tripathi’s case has laid down the guidelines to administer live streaming of Court proceedings which also includes which matters are to be made in camera. We need to find out those exceptions to where one can actually bring it to a virtual courtroom and at the same time exclude the large mass of public which can come to these court room if the link is provided to witness for the sake of protection of witnesses, the live commentary on the Judge’s opinions and remarks on advocate’s arguments. For such purpose legislation shall also be included since on closer examination it becomes a much complex issue. One can imagine for instance what would have happened if a whole lot of people with wide internet connection have witnessed the live proceedings of say the Ayodhya case.

CONCLUSION

One cannot deny that over the past 20-30 years of legal fraternity, technology has been introduced and applied be it starting from issuance of cause lists online to availability of judgments on websites and now virtual court hearings although on a moderate pace. Since bringing in the telecommunication is the crying need, the legal field has no option but to adapt and improvise but due to all these above mentioned obstacles; Justice getting stained is a shame. It is quite perceptible that the cons outrun the pros of it. Therefore, as of now the only solution is to accord with the new fate and let the mechanization be a part of existing framework with adequate resources in every sense possible.

Disclaimer:

The opinions expressed by the Author and those providing comments are theirs alone, and do not necessarily reflect the opinions of Daily Law Times Private Limited (DLTPL) or any employee thereof. DLTPL is not responsible for the accuracy of any of the information supplied by the Guest Author. This work is the opinion of the Author. It is not the intention of DLTPL to malign any organization, company, or individual and not be considered as Legal Opinion.