How COVID-19 is pushing the rise of online courts in India

In a historic move, an entire bench of the Supreme Court of India conducted its first ever paperless hearing on June 1. It was a rare sight as three judges sat in a virtual court, with laptops instead of bulky case files. Lawyers were seen giving presentations via video link, with the judges typing notes. 

Virtual courts in India have been an emergency, temporary response to the COVID-19 pandemic, but a section of judges and lawyers wants to include virtual courts in normal court proceedings even after the health crisis is over.

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Sharad Arvind Bobde, the chief justice of India, has said that "there is no looking back" and the way forward will be a combination of virtual courts and physical courts, "the new and the old."

However, with this new push toward virtual courts, there are also several structural challenges that have come to the fore. Many judges and lawyers feel that these need to be addressed as Indian courts traverse into the digital world.

Accessibility to Justice

Senior advocate and president of the Supreme Court Bar Association, Dushyant Dave, supports a combination of the online and physical systems, but he says that the current technological challenges are a hindrance in accessibility to justice.

"Our judicial system is thoroughly ill-equipped to have a computer revolution in the foreseeable future. Whatever is currently being used, for example by judges at least in the Supreme Court, is of poor quality." Dave told DW.

He says the transition to virtual courts is not easy for India because the country has a widespread judicial infrastructure with thousands of courts, many in remote areas where broadband facilities are not available.

"To computerize the judicial system in the country, you will need billions of rupees which I don't think India can afford to spend today," Dave said. "If India really wants to be one of the fastest growing economies of the world, we should have thought about all this long ago. I am really disappointed to say that we have not even thought about it until COVID-19 struck. So I think we have missed the bus in more than one way," he added.

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India's unequal technological realities are not just limited to connectivity and physical infrastructure issues. Many people also either lack the knowledge to use these systems or are not comfortable in using them.

In the last few weeks, several lawyers' bodies have written to the chief justice of India, calling for a return to physical courts. Some, like the Bar Council of India, claim that 90% of lawyers and judges across the country are "unaware about the technology."

Some lawyers are concerned about their livelihoods, claiming that virtual courts are currently accessible only to a few.

"Change management is important and the changes have to be gradual. They must also be acceptable to all. There is urgency, but no need to be in a tearing hurry. Changes should not be rammed down the throat of lawyers and judges," former Supreme Court Judge Madan B Lokur told DW.

Fair Trial

It has been argued that crucial elements in court proceedings, like the demeanor and facial expressions of a person being questioned, can be overshadowed by glitches in video streaming. There are fears that this could undermine a fair trial.

N Hariharan, senior advocate at the Delhi High Court, says that from the point of a criminal lawyer, the issue is about granting "multi-dimensional connectivity" and the "element of physicality cannot be lost."

"A multi-dimensional connectivity needs to be arranged: With the investigating agencies on one hand, the defense counsels on the other hand and the accused, who needs to be present on every date of the hearing. It is one of the aspects of fair trial that he sees what is going on," Hariharan told DW.  

"I really don't know whether we are equipped for that kind of technological advancement at the moment," the lawyer said, adding that in his experience of virtual court hearings, people are not trained enough.

He highlights there will be challenges in cross-examination during trial if witnesses testify from the comfort of their homes.

"A lot of things in cross-examination also depend on the kind of demeanor a witness has, which is discernible to the court when the witness is being examined before the court," he said. "Also, how do you ensure he/she is voluntarily coming out with the information that is being sought in a cross-examination?"

The way forward

Despite the push for online courts, many believe that physical courts cannot be done away with and there needs to be a model legal system that incorporates online courts while addressing the impending structural challenges.

"It has to be some form of a hybrid version," says Ameen Jauhar, senior resident fellow at Vidhi Center for Legal Policy. He recommends an "opt-out" mechanism as a choice for those who want to be heard in a physical court.

"You may also want to talk about an opt-out mechanism in place where if your process is targeted as a virtual court but you feel the need to be heard in person, that opt-out can be considered."

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Lokur, the former Supreme Court judge, highlights the distinction between online courts and virtual courts.

"Online courts are to which our justice delivery system is attempting a transition. Virtual courts are automated courts for petty offences such as traffic offenses and other compoundable offenses," he said.

For India's transition toward online courts, all stakeholders — lawyers, judges, court officers and litigants — should be brought on board, Lokur stressed, adding that awareness and training programs should be organized for all.   

Also, infrastructure must be strengthened, "not only in terms of access to technology through hardware but also in terms of user-friendly software," he pointed out.