Editorial: The arguments for and against virtual courts

However, there have been criticisms aplenty, as far as the notion of virtual hearings goes. Legal experts have objected to the fact that the hearings are not open to public viewing anymore. They have cited that the statutory procedure codes in both criminal and civil cases mandated hearing in open court. Only in exceptional cases such as rape, can ‘in camera’ proceedings be conducted. Reservations have also been expressed concerning the Supreme Court’s 2018 order, which barred live-streaming of court proceedings. The Bar Council of India (BCI), the statutory body for advocates in the country, came out strongly against former judges and sitting judges of the Supreme Court, who had suggested to continue hearings through video-conference even after the lockdown. Their bone of contention was that this could lead to the practice of law getting confined to a limited group of lawyers, thus affecting the delivery of justice.

As an alternative, they have asked for conventional hearings, keeping in mind social distancing norms, if the lockdown is extended. For instance, The High Court of Bombay at Goa has listed out precautions to be taken during court hearings. Staffers, advocates, and litigants have been mandated to install the Aarogya Setu app, enter the court premises wearing a mask, and follow strict distancing guidelines. Apart from concerns of transparency and fairness, a major hurdle to the virtualisation of court hearings – is the technology itself. Earlier this week, a petition had been filed in the Supreme Court seeking to curb the use of video-conference apps, such as VidyoMobile, Jitsi, and Zoom by Indian courts during the ongoing lockdown. The petition says the apps, owned by foreign companies, pose a data security risk. According to the petitioner, the transfer of data, especially governmental and judicial data outside the country impacts national security and is in violation of many laws in India.

This has been an ongoing debate as members of the legal fraternity have been stressing on the need for a dedicated digital system designed exclusively for the judiciary. But that almost seems like a moot point when one considers a statement made by the chairman of the Bar Council of India. He voiced a serious concern that 90 per cent of the lawyers in India are not computer literate or tech-savvy.

Despite the mounting objections, the Supreme Court, encouraged by the speed at which cases could be heard and disposed of, has embarked on the process of setting up more virtual courts. The system is here to stay, given the cost benefits, increased efficiency, and reduced probability of malpractices and assertion of undue influence. However, ironing out concerns about technology and technology literacy, while building consensus on a fair and transparent manner of carrying out hearings, will be a pre-requisite for India’s judiciary to move to virtual litigations post the lockdown.