Author- Sumita Nandi College- Symbiosis Law School, Hyderabad
The pandemic Covid-19 has flooded many sections of our society including the Judicial system. No one had seen before this kind of huge change in Judicial proceeding. During this pandemic, many Court-staffs, advocates, and even judges from many courts were reported to be positive because of mass-gathering in court areas.
In this circumstance, the judicial authorities decided to close the doors of courts and to carry on judicial proceedings online. The term ‘Social distancing’ has a huge impact on the whole judicial process and based on this, the administrators decided it.
Though it’s absolutely undesirable to see the courts completely shut-down. That’s why many judicial and quasi-judicial bodies, followed by the Supreme Court, have been conducting VIDEO CONFERENCING IN HEARING.
Keywords: Videoconferencing, E-courts, justice delivery system, pandemic, Social distancing
COVID 19 has brought a colossal disaster to the lives of individuals across the whole world. It has drastically changed the way how countries, communities, or individuals used to conduct their lives, businesses, or daily life normally. Its impact is so vast that the judicial system could not escape from it.
The major problem of Covid-19 is that there is not any major difference between a normal person with fever and an asymptomatic one. No one can predict who is the carrier of this virus, where and in whom it will spread next. This fear has led the new rule ‘social distancing’, ‘always wearing a mask’, and many others. These have led the whole world under a shadow of fear and insecurity regarding health.
In this scenario, the world has been bound to adopt new ways to carry on or reopen various conductions. Though in most of the cases those are not the same as the previous methods, hence there has been using so many online platforms and all works are being conducted digitally. The meetings in almost all sectors are being organized through various video conferencing platforms like zoom, webinar, google meet, etc.
In the justice delivery system also the new ways have been adopted. Various judicial bodies are conducting their meetings or hearings by these platforms. The Supreme Court is the foremost example of this.
CHANGES IN LEGAL SYSTEM DUE TO CORONA PANDEMIC
Health and safety are everyone’s priority now in these days as COVID-19’s unprecedented impact continues to grow on a daily basis. It is inessential to say, the outbreak of Covid-19 has left its impact on legal proceedings and arbitration in various ways. With a scan to create certain marginal disruptions, Courts around the world have swiftly embraced technology, alongside necessary electronic filing, limiting hearings to entirely necessary cases and conducting them through video conferencing.
HEARING IN VIDEO CONFERENCING
The Supreme Court issued a slew of directions to courts across the country to facilitate hearing of cases through video conferencing, a step that it aforesaid was essential to make sure that court premises don’t contribute to the unfold of the coronavirus sickness (Covid-19).
A three-judge bench, headed by a jurist of India (CJI), SA Bobde, aforesaid that hearings in the congregation should become associate exception throughout the internment amount associated taking steps towards that finish could be a matter of duty and not an exception.
“Until acceptable rules are framed by the high courts, video conferencing shall be principally used for hearing arguments whether or not at the trial stage or at the appellant stage”, the highest court ordered during a suo motu (on its own) case registered by it supported a letter written by senior advocate Vikas Singh.
Singh, in his letter, had steered modalities to scale back person to person contact and also the gathering of advocates within the Supreme Court
WHY IS THIS SO IMPORTANT AND WHY VARIOUS HIGH COURTS AND THE SUPREME COURTS ADOPTED THIS PROCEDURE?
The bench of justices Chandrachud and L Nageswara Rao said that to see the new and extraordinary eruption of this epidemic, it’s a necessity for courts to reply to the choice for social distancing and check that that court premises do not contribute to the unfold of Covid-19.
Article 142 of the Constitution empowers the very best court to pass orders to do and do complete justice in cases before it.
The apex court said that the judicature in each state would be at liberty to work out the modalities for the use of video conferencing once taking into thought the peculiarities of the judiciary among the state concerned and conjointly the general public health state of affairs in this state.
In the very abominable circumstances, it’s essential that the judicial and quasi-judicial machinery takes steps not alone to remain operational but to achieve most usefulness (as approach as may be) at the earliest. The virtual court system could also be of nice facilitate in achieving this goal.
Use of technology within the judicial proceeding system is enhancing chop-chop, with the subsequent varieties of technology employed in video conferencing:
• Data sharing in video conferencing technology: this sort is good, once there’s a requirement to transfer-proof, videos for fast sharing, sharing of documents, video clips, etc.
• Room-based technology: just in case there are multiple people that wish to speak through video conferencing, then area base technology would facilitate them to contemplate the number of locations that might initiate a decision, variety of displays that may be used facultative parties, and also the court to host high-quality calls with none interruption.
• Video conferencing is often employed in virtually any quite legal matter as well as bail application, remand hearing, civil matters like marital disputes, criminal proceedings, etc. the necessity of the act is that the court simply needs the oral proof to be created before it. Hence, the proof is often conferred before the courts by the approach of video conference or alternative electronic suggests that similarly.
• In the past, there are cases wherever courts have allowable the utilization of video conferencing to record witness testimonies. A few days ago the Supreme Court allowed video conferencing in marital cases. During that case, the Supreme Court aforesaid that the proceedings could also be conducted via video conferencing if the party requests for a similar.
FOOTSTEPS TAKEN BY VARIOUS COURTS:
On 7th April 2020, the court of Telangana passed directions for the conduct of hearings via video-conferencing at intervals the state throughout the quantity of COVID-19 lockdown -2. So, it was expected that different High Courts additionally as tribunals will adopt similar measures at intervals the approaching back days.
Separately, on 8th April 2020, the city court issued special directions in relevance live-streaming of matters listed for hearing on 9 April 2020 before His Lordship the Hon’ble Justice G S Patel. Previously, the Kerala court had live-streamed its hearings for the general public via Zoom App.
The decision to make proceedings being conducted at intervals the time of COVID-19 accessible to any or all or any via live-streaming may be a welcome move. In doing so, our courts have sustained a primary principle of the justice system, namely, justice shouldn’t entirely be done but seen to be done.
GUIDELINES OF SUPREME COURT FOR DISTRICT COURTS REGARDING VIDEO CONFERENCING IN HEARING?
The Supreme Court has directed district courts across the country to adopt video-conferencing prescribed by the High Courts for adjudicating the cases in the situation of COVID-19 pandemic.
A bench headed by Justice Bobde aforementioned that the involved courts shall maintain a helpline to make sure that any criticism in relation to the standard or audibleness of feed shall be communicated throughout the continuing or forthwith when its conclusion failing that no grievance in relation to it shall be diverted thenceforth.
The bench directed that courts shall punctually apprise and create offered the facilities for video-conferencing.
It also said that if necessary, in acceptable cases, courts can appoint an amicus-curiae and create video conferencing facilities offered to such an advocate.
The apex court additionally created it clear that the proofs can not be recorded in any case unless both of the parties give consent to do so. The bench aforementioned if it’s necessary to record proof during a court, the judge of that court shall make sure that acceptable distance is maintained between any 2 people within the court.
It directed that the judge shall have the ability to limit the entry of persons into the court or the points from that the arguments are addressed by the advocates.
“The leader shall in his discretion adjourn the proceedings wherever it’s impractical to limit the quantity,” the bench aforementioned.
While creating it clear that “these directions shall operate till any orders”, the highest court aforementioned that these directives are issued in “furtherance of the commitment to the delivery of justice.
“Access to justice is prime to preserve the rule of law within the democracy envisaged by the Constitution of Asian nation,” the bench said.
“The challenges occasioned by the eruption of COVID-19 have to be compelled to be addressed whereas protective the constitutional commitment to making sure the delivery of and access to justice to people who request it,” the bench aforementioned, adding, “Court hearings in the congregation should essentially become AN exception throughout this era.”
It also aforementioned that the cooperation of all the involved persons, like judges, lawyers, and litigants, is indispensable in triple-crown implementation of those directions to make sure that the judiciary rises to face the distinctive challenge given by the eruption of COVID-19.
The bench clarified that fashionable technology has enabled courts to boost the standard and effectiveness of the administration of justice and Indian courts are “proactive in clench advancement in technology in judicial proceedings”.
A slew of directions was lapsed by the bench that has taken suo motu (on its own) cognizance of a letter written by senior advocate and former Supreme Court Bar Association (SCBA) president Vikas Singh, World Health Organization has urged measures to be used of technology for conducting hearings within the courts.
FROM INDIAN PERSPECTIVE
India, to discourage the unfold of the virus, mandated the effective implementation of steps to make sure social distancing. The Supreme Court of India and also the High Courts have taken action to reduce the physical presence of attorneys, litigants, court workers, para-legal employees, and on-line and medium members in courts throughout the state, and to make sure continuing judicial dispensation. trying into the Indian Legal Structure, the provisions of legal code and civil law stress on the physical look before the Court.
Sections 230 to 234 of the Code of Criminal Procedure (CrPC), lays down the procedure to be followed whereas assembling the proof and conjointly provides the facility to compel the witnesses to look before the Court. In Civil law, Section 30 Order XVI and XVIII of the Code of Civil Procedure (CPC) lays down that the witness is often summoned before the Court.
It is often understood that the Indian Law doesn’t lay down any provision for video conferencing. Judiciary through its varied judgments arranged down the varied tips. In Amitabh Bagchi vs. Ena Bhagchi, the Hon’ble Court commanded that the term ‘presence’ doesn’t truly mean the particular physical presence. it had been additional command that video conferencing could be an efficient methodology and saves time.
Section 65A and 65B of the Indian Evidence Act lays down the special provision for manufacturing electronic evidence and their acceptability before the Court. Through its varied judgments, Courts have understood that video conferencing is often enclosed in these provisions. one amongst the vital judgments within the space of video conferencing is that the State of Maharashtra vs. Praful B Desai. Through this judgment, the Indian Courts have embraced the idea of Video Conferencing.
In Alcatel India Limited And Anr. vs Koshika Telecom Limited And Ors., the Court allowed the witness to look through video conferencing owing to his health. In Sakshi vs. Union of India and in Sheeba Abidi vs. State and Anr, the victims of sexual exploitation got the chance to look through video conferencing.
Dr. Kunal Saha vs. Dr. Sukumar Mukhurjee was a case regarding medical negligence. Hon’ble Supreme Court allowed Foreign consultants to look through video conferencing.
WILL IT BE WORTHY FOR DISTRICT COURTS TO ADOPT VIDEO CONFERENCING IN HEARING?
Facilities for video conferencing may be employed in all matters together with remand, bail applications, civil and criminal trials wherever a witness is intrastate, interstate, or overseas. These pointers won’t but apply to proceedings consistent to Section 164 of the Criminal Procedure Code i.e. Recording of confessions and statements.
A notification by the Delhi HC claimed that each one connected legislative needs applicable to judicial trials, together with the want of the Information Technology Act, 2000, and also the Indian Evidence Act 1872, shall provide the bunch of proof by videoconference.
Video Conferencing is one of all the largest blessings of technology. It permits audio and communication of individuals from two totally different locations.
These are the main blessings of e-Court proceedings which can also be a term of benefit if it also is used in District Courts
It will save time, money and enhance security – This is often in all probability the foremost necessary advantage, and conjointly the best to indicate. This methodology permits a witness to testify from their own geographical locations. Thereby making certain the protection and security of the individual, everybody needs to save money, even on those advocates who are extraordinarily essential of accelerating the employment of technology in court.
Travel expenses are principally paid by the authority, and it not solely needs the time to rearrange for the transportation and an area however finishes up saving the patron. But in case of hearing by video conferencing, there is no headache of all these. Thus video conference in hearing is an enormous tool to save lots of cost and time. It enhances the security of the witnesses too.
Further, as highlighted by Justice Chandrachud, aside from facilitating access to justice from remote areas, video conferencing is efficient, reduces carbon footprint, and considerably reduces the try of employment of dilatory ways by parties.
It may reduce the employment of the personnel – there are tons of risks related to transporting a criminal from jail to the Court. There are several probabilities that these criminals can notice some way to flee. Through E-Functioning the employment of the Police officers is going to be reduced to an outsized extent. Also, there has been a growing trend of encounters in India. These forms of things may be reduced.
It will provide the chance for witnesses to testify freely from their own places- As in video conferencing, the witnesses can give their testimony from their own places, it will make them speak and testify freely without any fear as there will be no risk on them.
It will reduce the headache of police- If it will reduce the headache of the cops and also the risks moreover of transferral jailers from the prison to the court. In the geographic area, around forty district courts have already put in video conferencing facilities in prisons and in courts to deliver justice promptly.
It may enhance the conduction of remote court trials – It will conjointly increase the accessibility of legal services to deprived people that are unable to connect the value of motion.
Safety considerations of the Under-Trial in jail – one of all the most disadvantages of the Video Conferencing is that the Judges won’t be ready to perceive the visual communication of the persons showing. This makes it troublesome to assess the case. For example, if an individual is showing from the jail, he won’t be ready to reveal the torture he may need knowledgeable whereas within the custody.
Privacy can not be ensured before multiple viewers of this type of communication. A variety of police brutality is taking place every day in India; this type of communication may put-upon it.
Also, it’s to be noted that this communication system is totally controlled by the State. In the geographic area, a precedent is established by the Bombay High Court to stop such misuse.
In Rajendra S. Bidkar vs. the State of Maharastra, the Hon’ble Court held that there must be two advocates from the Maharashtra State Legal Services Authority who will be present in the jails when the remands are being produced before the Court. In order to maintain the attorney-client privilege, there must be a separate space for the advocates and clients for their discussions.
The issue in the use of technology – In India still there are lots of people who are unable to use technology, this may be a significant headache to the litigants and also the lawyers. This video conferencing may even cause anxiety for the prisoners showing before the Court. Even it may cause problems for those witnesses who can not use these technologies.
If one person is not comfortable in video conferencing, he or she must have the chance to physically appear before the court.
The pandemic has inflated our reliance on technology. This new idea of E-Court ought to be followed during and even after the pandemic will over and everything will be normal for the best use of technology in the judicial system; to upgrade our judicial system.
India follows associate degree adversarial system wherever the presence of litigants associate degreed lawyers within the Court forms an integral half, although the procedures are created on-line the parties ought to incline a good probability. CJI Bobde whereas supplying the rules says that “This cannot be seen as a temporary issue. Technology is here to stay.”
Further, it is expected that each individual and organization ought to get together in adopting interventions designed to reduce the transmission of the virus. Adopting these new technicalities can be a move therein direction. Justice can not be stopped due to this disaster. The judicial system must not be rigid. It must be flexible to adopt new infrastructure according to the situations. And also it must be upgraded with time. So, it is high time to adopt this NEW NORMAL in our judicial system too.
So, all district courts in India must have this technology of hearing in video conferencing as per their flexibility with the permission and regards of High Courts.
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