Abstract
2020 has shown us the contrasting lifestyle which no one would have imagined before the covid-19 pandemic. The whole country shut down from march due to the spread of the coronavirus and the tradition of work from home started in order to maintain social distance. To carry on the working of the courts, the Supreme Court exercised its plenary power under Article 142 of the Constitution to direct all High Courts to frame a mechanism for use of technology during a pandemic. The virtual court is a concept aimed at eliminating the presence of litigants or lawyers in the court and adjudication of cases online.
In this article, I have done a comparison between the virtual court and physical court, what are the advantages and disadvantages in it by comparing both. The headings covered in the article are Cost-comparison of the cost incurred, Psychological problems, Enquire process, Court staff-workload, Work of police, Handling of Clients, Income of the advocates, Disruption, Network problem, Time-saving, Privacy and security, Young advocates and Legality.
The purpose of this article is to give an insight into the working of virtual court and compare it to physical court and what are all the things that can be added to making it better. Some of the benefits which we get from the virtual court can be used even after the covid-19 pandemic for the better working of courts.
Introduction
Due to the spread of the coronavirus, the functioning of the court can’t be stopped. The working of the court is important as all other works because as we know many cases are pending in courts and if there would be a shutdown in the judiciary system it will increase the number of pending cases and the income for advocates will also go down. The improvement of technology has played a main role in the pandemic period and has helped for the operation of court even in this time by virtual courts. The Supreme Court ordered all the courts by exercising its power under Article 142 in The Constitution of India to do court proceedings by the virtual court.
The court by the virtual method is not a new concept or unheard of. Before the pandemic, the video conference setup was used for conducting remand matters to prevent the movement of prisoners between courts and jails. One of the significant use of the virtual court before the covid-19 period was in August 2019, the high court of Punjab and Haryana launched its first virtual court at Faridabad to deal with traffic channel cases from across the state. But it is to be used widely due to the pandemic.
A Virtual court means where litigation can be done without coming to the court and to continue the process from the place where they are with the use of a computer, laptop, or phone. The idea got mixed reactions. The use of virtual court is easy for young advocates compared to the elder ones.
The following are the headings, which are covered for comparison of physical court and virtual court
Cost
When we compare the cost incurred. In virtual court, the cost is less compared to physical court because whichever the court may be, they can attend the case by being in the place where they are residing and there is no need to travel to the court. The only cost incurred is payment for the data pack.
Psychological Problems
Psychological problems are faced by advocates and as well as judges using gadgets for the virtual court. Most of them face difficulty in handling gadgets.
And we will be not able to know what frame of mind does the person is in. When we are in physical court, we will directly see the person by their physical action/posture we can find but in virtual court, we can’t correctly find their state of mind. It will be difficult for advocates because they may not know if the judge is in good mood to hear what they say.
Process of Enquiry
For the enquiry process, physical courts are the best compared to virtual court. In physical court, we will directly see the person and it will be easy for us to identify is the person speaking the truth or not but in virtual court if will be difficult to find.
Court Staff Workload
By the process of the virtual court, the workload of court staff has increased more compare to physical court. All the things are done electronically they need to take print of it do the whole process then again submit it, daily upload the virtual court timing fixed for the cases, inform everyone, etc.
Work of Police
The word load of Police is reduced as a result of the virtual court. Before in physical court, they need to bring the accused to the court again to the jail there are many chances that the accused may try to escape or even escape. In virtual court, they can make the accused speak to the judge by use of video calls and it is also time-saving.
But in the method, some disadvantages are the jails are mostly built in outer areas from the city, they may face network issues and the accused may not able to convey what they want because they are inside the jail. One of the important cases related to this heading in Bombay High Court is Rajendra S. Bidkar vs. the State of Maharashtra (2014), the Hon’ble Court held that there should be two advocates from Maharashtra State Legal Services Authority to be present in the jails when the remands are being produced before the Court. To maintain attorney-client privilege, there should be a separate platform for the lawyers and clients for their discussions.
Handling the clients
Handling the clients has become the biggest problem for the advocates because of virtual court. They feel difficult to make the clients understand the procedure followed in virtual Court. The client must-have gadgets, a good network, and knowledge about the use of apps for the virtual court to attend the hearing in virtual court. Aged people face many difficulties in this process. Clients feel hard to understand the legal proceedings in the physical court itself, it becomes more difficult to make them understand in virtual court.
Income of Advocates
There is a huge fall in the income of advocates due to the use of the virtual court. Some of the clients connect with the phone, complete all the works and don’t transfer the amount and if advocates try to connect with the phone they don’t respond. But when it is a physical court, they will come to court. Advocates and clients will have a direct connection so there will be no problem. In this pandemic time all are facing income fall due to that they don’t fill case they postponed it. Clients are unaware of the fact that virtual court cost less as compared to physical court.
Disruption
We face a lot of disruption in virtual court. They are as follows: noise in the background, echo, no sync in audio and video, break-in voice or audio, when two or more mic is on it will not give clear output, sometime they may forget to mute due to that they may be a disturbance, not able to see others video, other, not able to hear, sound delayed, problem in camera working, etc. This may make the advocate get tensed and not able to give his full arguments well.
Network issue
Network issue is the biggest problem faced in virtual court. Most people may be in a place where there is no good network connection and not able to connect. Many uses at the same time may cause traffic and not able to connect. Disconnection due to network issues at the time of argument creates frustration.
Time-Saving
Compare to physical court, the virtual court is time-saving it reduces the time of travelling and waiting outside the courtroom till called. Much helpful in disposing of the cases fast, many cases are completed fast by virtual court compare to physical court.
Privacy and Security
Privacy and security are less in virtual court because if any person gets the link of the virtual court, he/she may hear the hearing, and hacking may happen. But this type of problem is not faced in physical court.
Recently, Justice Kait passed the directions in a criminal case after “certain unidentified persons” joined the proceedings through video conferencing and could be heard talking continuously. A judge of the Delhi High Court has directed that the link of hearings conducted through video conferencing will not be provided to the public, including media persons, and it will be given only to advocates and investigating officers. Justice Suresh Kumar Kait also made it clear that no advocate shall share the link with anyone else except the senior advocates or the lawyers appearing on their behalf.
Legality
When we see about the legality according to Article 145(4) of the Constitution of India, that no judgment shall be delivered by the Supreme Court other than in open court, it also provides that no report shall be made under Article 143 other than by an opinion also delivered in open court.
Section 327 of the Criminal Procedure Code mandates open court hearings in all criminal cases and when we see for civil cases under Section 153-B of Civil Procedure Code it also mandates open court hearings in all civil cases.
In the case of Swapnil Tripathi v Supreme Court of India (2018) the issue was whether live streaming of court proceedings should be introduced in India, and if so, under what conditions. The court held that the ability to view live broadcasts of the supreme court proceedings flowed from the right of access to justice in the constitution. The court said that this right should not be absolute. It provides a set of model guidelines that should govern the courts’ discretion on when such broadcast should be sued.
The Court while considering the Petition observed that there is an express stipulation in Article 145(4) of the Constitution that such pronouncements shall be made in open court. It further held that “no such express provision is found in the Constitution regarding open court hearing before the Supreme Court, but it can be traced to provisions such as Section 327 of the Code of Criminal Procedure, 1973 (CrPC) and Section 153-B of the Code of Civil Procedure, 1908 (CPC).”
Young Advocates
With the use of virtual courts, young advocates are getting more chances as they have good technical knowledge compared to senior advocates. They can show out their skills in advocacy. At the time of the physical court, senior advocates will mostly dominate the junior /young advocate. Now they ask the help of junior to represent in virtual hearing and give chance to them.
Conclusion
It is obvious with all the comparisons that virtual court can never replace the physical court but it to have its own benefits. opening a physical court is not practical in this pandemic time so, for now, the virtual court can be used.
For making the virtual court experience better we need to improve the infrastructure, by having good gadgets and a good data pack. They can create a separate app for the court which is made only for use of virtual court and can take actions to improve the security and privacy in court hearings by the virtual court. A video can be made to explain how to participate in the virtual court for a clear idea for everyone who participates in virtual court.
But when we see on the other side many advocates don’t have smartphones or any other gadgets that can be used for virtual court. Therefore, to solve this problem court can allow the advocates who don’t have facilities to come to the court and allow them to use the court computer to do an argument for their case. Recently, the Government has given more relaxations in lockdown. Now allowing advocates who don’t have the infrastructure to attend virtual court at the time which is fixed for them will help them.