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 There are certain cases like cases under Prevention of Terrorist Activities Act (now repealed) or other such serious cases where the authorities have reason to believe that removing certain under trial prisoners out of the prison may disturb public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.
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