Jyotsna Yagnik, Author at Adamas University

Virtual Courts and Future of Indian Courts

The situation prevalent during the COVID 19 pandemic has resulted in physical closure of the court building to maintain social distancing and to avoid spread of COVID 19. At present, mainly urgent kind of cases are being conducted online. The orders are given by the courts by hearing the arguments of the respective lawyers on some digital platform wherein reply to the queries raised by the court are also being answered on the digital platform. True it is, that instead of closing the court working all together hearing and adjudicating online is a better solution but the million-dollar question is, will this position be continued post COVID also?

The present method adopted to conduct the court online has reminded this author that even before Covid19 including this author many the then judges used to conduct certain kinds of matters through E court viz through videoconferencing. There are certain cases like cases under Prevention of Terrorist Activities Act (now repealed) or other such serious cases where the authorities have reason to believe that removing certain under trial prisoners out of the prison may disturb public order, or hinder public interest than under Cr.P.C state is empowered to not take out such prisoner from the prison. The author remembers that even for the proceedings of E courts deposition of all the witnesses were not recorded on video conferencing as for certain important witnesses where body language, gestures or expression of the witness were important for the court to record or noticed then the court used to keep its sitting in the jail premises so as to completely act in adherence of the principles of a fair trial.

The concept of the virtual court is in a way a novel concept and therefore though under the compulsion of the pandemic it has been initiated but now it is felt that time has ripened to decide should we continue it or not? This can be done to ponder over the pros and cons of this digital conducting of the court trials.

As far as cross examination of important witnesses are concerned it can safely be held that it is always better to take cross examination in the courthouse in a routine manner before the court to uphold the powerful impact of the cross examination which will not be experienced in virtual court and that the possibility of the witness being prompted in the virtual court is of such a high degree that fair trial becomes a dim possibility. In virtual court, the human touch will be lost and the kind of rapport between adjudicating authority and witness and a kind of rapport between the cross examiner and witness, etc. will not be there in the virtual court. In the virtual court during the cross examination if the witness has kept some material with him in a mobile phone or some other device or by way of papers then the witness will be in a position to answer in crossed by use of it, in such case the chastity of the cross will be reduced without it being noticed by the court.

The hearing at virtual court can be very useful where the court is only required to listen to the arguments of lawyers where the question of any breach of the principle of fair trial does not rises. It is known that in trial courts such stage is not a regular matter of course but it is a small component of the entire trial. Still, however from the experience, it can safely be opined that for arguing the case virtual court will prove to be a very happy and healthy experience. It is more particularly in the civil cases, family cases, and for the arguments of appeal where parties are not inaction or where no scope of the oral evidence is there or where arguments on a small order, injunction applications, miscellaneous applications are to be made. In all such cases, the virtual courts will be a time saving, energy-saving, very practical and convenient way to deal with cases.

Another important aspect that requires to be taken note of is the concept of Open Court House. Open Court House is one concept by which any person from the public can sit and witness any ongoing proceedings in the courthouse while any matter is ongoing except the matter is such which the court is required to conduct in camera. When we hold virtual court this very concept of the open courthouse is going to be adversely affected because in that case interns, junior lawyers, and another interested member of public will be losing the benefit or say the right available to them by law to witness court proceedings in the open court.

One more aspect is on filing the case online. It is well-known that the biggest issue which India is facing is illiteracy, poverty in general, and computer illiteracy in particular. In this social background, it seems extremely difficult for the party in person to file the case online. It is not clear that for such purpose whether legal services and more particularly free and competent legal services would be given or not. Secondly filing online reduces the accountability of the person, there is a risk of privacy and confidentiality to the documents produced by the parties to not been maintained, more particularly when the documents are produced concerning the personal life of a person. Filing by a robot will become one more issue apart from security and confidentiality.

It seems that it is now time to re-ponder, revisit review over on the procedures, and our methods of filing the case. It will be a matter of research as to what extent E-filing or E hearing of the case maintains the requisites of administration of justice. It cannot be forgotten that our entire administration of justice is for the subsistence of rule of law and that anything which in any manner shakes the rule of law will become a challenge to the justice delivery system.

Another big matter of worry is the criminal trial and more particularly serious kind of criminal trials where certain witnesses are vital witnesses. From the experience of the criminal justice system, it can be said for sure that it is not at all prudent or advisable to record oral evidence of a vital witness through videoconferencing. Particularly in case of sexual offences, child abuse, or the cases against the human body as it would not work effectively. The justice delivery system requires to help and to take care of all those who can be termed to be the members of the group of weaker sections like a senior citizen, physically challenged person, poor, etc. but to what extent virtual courts will do it is a question.

Another important question relates to the record of the court. Today the record and proceedings of the court are constituted of the papers, it is easy to preserve it for a long time, we also have had successful settled methods for the same but now if the recording is done online the question would arise as to how to preserve record and proceedings because even the arguments made in the court of law through the digital platform if are to be recorded it will create a record of the court but then the question is where to save such record and to how long it should be retained?

We do look forward to moving ahead and ahead, we can say by our positive thinking that COVID 19 has provided an opportunity to justice delivery system to move forward and to enter into the digital era but the coming time will test it. As such transformation is a rule of life and that we should always be ready to transform but such transformation must be given certain benefits and should not be taking away the pleasure of the present/ of the day. If we can provide higher bandwidth or say special kind of speedy Wi-Fi for courts and its functioning, if we can think of using the digital platform for a limited kind of cases, if we do not forget the importance of human touch, if we accept the hard reality of Indian social-economic situation or social background that there are the majority of people who are not digitally literate then we can understand that it is good that we become ready to welcome digital era but at the same time we need to take care of and show concern for our poor, physically challenged, senior citizen, people reside in a rural area, children and so on and so for then welcoming digital era will be with taking due care of our fellow countrymen and that only can give a different kind of favourable dimension.

Digital Learning Vs Old traditional Learning: A Perspective

Dr Jyotsna Yagnik writes on how digital learning will not attract the youth in a long run, Graphic: Saubhik Debnath

Distance education was a new word then, when for the first time a thought came and implemented by an educator – Sir Isaac Pitman. Somewhere in the year 1840, a shorthand course was taught by Sir Isaac for the first time by mailing texts transcribed into short hand on postcards and receiving transcriptions from his students in return for correction. Who knew in the year 1840 that the world would have universities to impart distance education on such a large scale. Today, when one sees the distance learning center of the open university one does not remember the father of distance learning or distance education.

I was inclined to find out the name of the father of distance learning due to the tremendous spread of digital learning today all around the world and it being the predecessor of digital learning in the education system.

Computers, laptops or smartphones which were purchased only before a few months more as status symbols have overnight become indispensable tools for learning without which digital communication could have been impossible. Today there is a flow of every kind of knowledge from every stakeholder. The digital world has reduced to a visible small village, at times on our social media there is lot of digital noises, national library is at the distance of our fingertips, it is known that there are numerous learning platforms to impart education, but it is seldom noticed that one common platform in every family called, its dining table, has also restarted imparting new learning, unlearning and even relearning family tradition and culture with different degree of emotion,care and affection.

Who says Corona pandemic has only created terror, unrest and discomfort all around rather it has showcased the world’s many important but forgotten legacy of Indian culture out of which one is a newly generated flow of family education from the platform of the dining table of the family.

In the perspective of today, it has been felt by all that there cannot now be any substitute for digital learning and had it not been invented, the world would have reached to halt, a serious pause as far as education is concerned. In my opinion what is constant in the universe is change, transformation. Today’s digital learning is a more purified version of distance learning .

Those who are in the field of education are aware that there was a constant rise in the number of absenteeism of the students in the class rooms. Different attractions like Gym, lovely playground, indoor stadiums, convention centers, lush green campuses of the universities have not proved to be successful to bring down the number of absent students. True that face to face learning and teaching has its own charms, but the takers are decreasing day by day. We have tried to change the patterns of examination, evaluation methods, teaching aids and what not but even then it could not effectively increase the attendance of the students in the class rooms.

The study on the reasons for decline in attendance has shown that though there are no concrete reasons for the students to leave the class rooms, or saying in language of the students… to bunk the classes, the fact remains that there is steady decline in that too. No university or the best or most popular teacher can claim 100 percent attendance of their students in the classrooms and no teacher can be blamed for it.

Every good university attempts all the measures to ensure employing the best teachers, purchasing the best teaching aids and tools and also to create an ambiance where learning becomes fun. In spite of all these it is felt for long that the saturating point has already arrived at or is closed to arrive for the students as far as classroom teaching is concerned.

Some years ago, it was felt that the lecture system is age old and for longer duration, it is counter productive. Then came the stage of shift from blackboard to whiteboard or greenboard, but putting candidly… not substantial change was noticed in attendance of the students in the class rooms. From lecture system to inter participative method was chosen but no notable result. It was then thought that seeing is believing which brought the age of projector, bullet points or highlighting segments in coloured fonts with attractive powerpoint presentations with colorful slides and newly devised fonts or say smart writing but even this transition did not help much.

Coronavirus has added one new chapter in the education system of complete digital learning and today it is held as desirable to impart a minimum 25 percent education by digital learning even after normalcy resumes. However, 75 percent of the syllabus is held to be such which needs to be essentially delivered by face to face learning. Today almost all universities in the world are attempting to complete its course by digital teaching.

In this background, the question which comes up for our consideration is whether this method of learning is more acceptable to the youth for whom the entire exercise of digital teaching is being carried out. If one wishes to answer with the mirror like outcome then it can be answered in affirmative. Every teacher has experienced in its digital classrooms many new, unseen or rarely seen faces for the old roll numbers. These faces of the students seen in virtual classes were not appearing or regularly appearing in the recent past in the routine class rooms.

Even with a lot of efforts those faces were not visible in the classrooms. The pressure which built up by writing letters to parents was not working because the parents might have been helpless to compel their wards to attend the classes. The device of debarring the students on account of their lack of requisite attendance in the classes did not work as well because it was ultimately perhaps costing the parents.

When nothing worked satisfactorily suddenly the digital learning which was started out of compulsion created by the lockdown due to corona pandemic is found to have been working well as observed through the lenses of statistics of attendance of the students in virtual classes. It is observed that the student who has usually not chosen to sit and learn in the four walls of the air conditioned classroom has chosen to sit across the smartphone and laptop.

It is being discussed among teachers that what has worked? Is it a side product of the lockdown, is it compulsion to remain at home, is it facility to choose only audio, is it facility to choose or to start video at one’s desire, is it wearing comfortable domestic dresses and sitting in a comfortable posture in one’s room with freedom of domestic ambience or is it the liberty which every human being likes in which there is freedom to attend the class for a few minutes and to take rest as an when desired.

As it may be, but the fact remains that digital learning has suddenly increased unprecedented figures of 100 percent attendance of the students in the digital classroom. Digital classroom has a benefit of seeing the teacher or only listening the teacher or doing both. It has a facility of unilateral seeing or not seeing the friends or teacher at the digital classroom and still becoming Mr. India of Bollywood (Anil Kapoor fame), it has a chance of seeing everything without being seen and watched by others, it is a beautiful thing, isn’t it?.

Today the importance of digital classroom and digital learning is at such a high peak that many educators have formed their opinion that the days are not far where more than beautiful campuses of universities, beautiful platforms of digital learning and effective teaching aids and tools to reach students digitally will attract and hence will capture the market.

I am of the view that digital learning will remain temporarily an attractive phase in the background of pandemic and lockdown, but it will certainly not attract the youth in a long run as it will lose the temporary attraction it has created. It is like the first week of a routine Bollywood movie or masala movie. Unless a movie has many important packages of messages, morals and mint with it, it will seldom attract an audience in the second week.

We cannot forget that India has the heritage of Gurukul where physically living and learning from gurus has “parasmani”/Midas touch. The body language, eyes, expression, anger, affection, appreciation or even scolding of a teacher cannot be compared with face to face learning. The immense pleasure and apparent benefits of personal teaching of a dedicated and committed teacher can never be replaced. I am sure a day is not far where human beings will crave for digital silence.

The digital noise today in the social media right from good morning messages to the longest article creates a situation where people have found out shortcuts of not downloading or not depositing unwanted messages in the phone to avoid burdening memory of the instruments. I am sure the time will come when students would return back to classrooms, would choose to avoid digital noises, would love to observe digital silence at least for some part of the day to avoid over burdening of the memory of the mind.

All said and done, human touch, human sensibility, comfort between one human being to another human being, affectionate approach, human affinity with humbleness, positive attitude of the teachers will all bring a new dawn, a ray of hope on this mother planet.

The writer, a former Judge, is Pro Vice Chancellor of Adamas University, Kolkata. She has been a former Principal Judge, City Civil & Sessions Courts, Ahmedabad, Gujarat. She has served as POTA, NIA and CBI judge of Gujarat in addition to Special Judge for Serial Bomb Blasts cases, Hooch Tragedy, Riot Cases etc. She has been teaching law for about 34 years and is a former Principal of Law College. She is an Arbitrator, Trained Mediator, Conciliator in International panel of ICADR and Corporate trainer for laws.

This blog was first published by ABPEducation. Click here to read original article.

CURFEW / NATIONAL LOCK DOWN

Curfew has its origin in an old French word. The order given by the authority to the people was to extinguish fire at a particular time of evening which was to cover the fire. Originally it was cuvrir + feu. Then it has been known as curfew. It was then in order to prohibit people from doing or continue doing the act.

Even today this order is being passed in form of notification by District Magistrate, SDM, Executive Magistrate who has been given power by the government to issue such notification. It is generally to prohibit some or all people to stay off the streets, mostly such notification are issued to curb violence, to control the situation like riot etc.

Under S. 144 of Cr.P.C in order to prohibit the assembly of people in a particular area a notification can be given. Under Chapter 10 maintenance of public order and tranquillity have been dealt with. The heading under which Section 144 is provided reads, “ Urgent cases of nuisance or apprehended danger” . This relates to power of the state government to empower DM, SDM, OR ANY EXECUTIVE MAGISTRATE to form an opinion that there are sufficient grounds to proceed under the Section for immediate prevention or speedy remedy. We are aware that for the public safety and to meet with the challenge of spread of corona virus necessary orders have been issued as COVID 19 has knocked on the door as pandemic disease. Three weeks National lockdown has been ordered to stop novel coronavirus outbreak. It is an order to confine the citizens in their homes, to maintain social distancing, to be aware about the decease and to comply orders given by the authorities.

Under Section 144 such an order can be passed to prevent danger to human life, health or safety etc. The order to prohibit can be passed When the empowered authority is of the opinion that grounds to believe that the direction which will be given by the authority is likely to prevent or tends to prevent the nuisance or apprehended danger. These kind of notifications are subject to the limitations provided in the section.

It is known to one and all that at present due to coronavirus there is big danger to health and human life hence the executives needed to use their powers to declare national lockdown. Generaly such situation does not arise hence the general public is unaware of such powers. As discussed to protect health and human life such orders are required to be issued hence
in the circumstances declaration of the national lockdown sounds absolutely justified as without the said orders the apprehended danger of the spread of the carona virus can not be handled . Every one of us, as a law-abiding citizen must cooperate for the interest of our own health, safety and life. We look forward for a dawn when the world gets rid of this virus. Good Luck, the best state of Health.

ALTERNATIVE DISPUTE RESOLUTION

The ideal role of justice delivery system is to resolve the dispute between the parties permanently, amicably and in a manner by which both the parties or all the parties to the dispute enjoy win-win situation.
Such situation is not new to India as India for centuries together believe in resolution of the dispute by settlement or say by compromise.

A new chapter has been added in our civil procedure code by which alternative dispute resolution has been injected in our civil justice delivery system. It is discretion of the court to refer the case to ADR or not as the law provides that , “where ever it appears to the court that there exists an element of settlement the court should refer the dispute to alternative dispute resolution for its settlement”. In our law different alternative dispute resolutions have been recognised by amendment in the civil procedure code.
The important aspect of the alternative dispute resolution is , if the parties to the dispute arrives at settlement then the said settlement is final and binding.

As we know in our country the weakest point of our civil justice delivery system is huge pendency of the cases ,arrears of the cases in our courts, delay being caused in final adjudication of civil disputes. It was felt for long that we need to find out solutions for this situation by beating the unbeatable , the arrears of civil cases in our courts.

The amendments in our civil procedure code takes care of our national interest because if the arrears of civil cases will be reduced then in that case the international fraternity will not hesitate to execute contract with our merchants and thereby our national interest will be largely protected as it will have positive impact on economy and image of India. It also gives safety and hope to all our citizens or to all the Justice seekers because the rule is that, if by reference of the cases settlement is not arrived at in that case the same cases can be sent back to the courts of law for its final adjudication according to merits of the case. we have been able to address the issue of arrears of cases to the greatest extent . I look forward for a day when we as a country will be able to completely address the issue of arrears of cases in courts.