Introduction

Article 21 of the Indian Constitution ensures right to access to justice for every person. The ambit of this provision is very wide in this regard. Our Founding Fathers laid special emphasis on the fact that every person should get an easy access to the doors of justice without any let or hindrance. The existing system was running smooth till it received a severe jolt two years ago when the most fatal pandemic known as COVID-19 began to spread its tentacles worldwide. India was also adversely affected by the evil consequences of this monster. Consequently, total life was paralyzed for about 68 weeks due to continuous lockdown in the whole country. All the courts in India remained closed during the period for all practical purposes. In this disastrous phase, the litigants from all over the country were deprived of an easy access to justice. In order to meet the emergent situation, the concept of e-courts or virtual court began to take shape and the preliminary work in this direction was started at the behest of the Apex Court and the Central Government. Before delving into the progress made in this direction, it would be imperative to look into the pre-Covid-19 position i.e. the condition prevailing prior to 2020.

As mentioned above, the framers of the India's Constitution had always in mind that the common man should get an easy access to justice at any cost. Even when the debates were going on in the Constituent Assembly, the geographical access to the Supreme Court was flagged as an area of concern. The Drafting Committee led by Dr. B.R.Ambedkar was of the view that the Apex Court must have a specific place of sitting so that the litigants and the counsels alike should "know where to go and whom to approach". However, the framers of the Constitution agreed to the view that due to enormous volume of case work, it was necessary that the reach of the Supreme Court should increase and the court should be held elsewhere also. Accordingly, the Constitution empowered the Chief Justice to hold the sittings of the Supreme Court through Circuit Benches in places other than Delhi as well. However, due to various reasons, successive Chief Justices refused to invoke this constitutional power. This geographical constraint resulted in several inconvenient situations for the litigants who were forced to travel long distances and incurring much-higher expenses onboarding and lodging etc. Not only this but also, they were constrained to engage select few lawyers from Delhi itself. All these resulted in prohibitive costs of litigation in the Apex Court. It may be noted here that more than one Law Commission and Parliamentary Committee have recommended Circuit Benches of the Supreme Court to be set up around the country.1 Undoubtedly, the introduction of e-Courts will have a definite bearing on this contentious issue as this measure will be able to fulfil the long overdue pious wishes of the Constitution-makers. However, certain other endeavours adopting digitalization in the judicial regime have reflected the Apex Court's good intentions regarding people's access to justice by ensuring better transparency and efficiency. Some of such steps can be enumerated forthwith:

1. Setting up CCTV cameras in the courts:

In the last week of March 2017, the Bench of Supreme Court comprising Justices A.K.Goel and U.U.Lalit, in an unprecedented manner directed High Courts to install CCTV cameras inside courtrooms in two districts of every State and Union Territory within three months to record case proceedings. The Court further ordered that "The report of such experiment be submitted within one month of such installation by registrar generals of the respective high courts to the secretary general of the Supreme Court who may have it tabulated and place it before us". However, the Court ordered against the audio recording of court proceedings. Such installations of CCTV cameras will be at "such important locations of the court complexes as may be considered appropriate. Monitor thereof may be done in the chamber of the concerned district and sessions judge. Location of district courts and any other issue concerning the subject may be decided by the respective high courts". The Supreme Court further barred access of the video footage to lawyers, litigants and general public through the Right to Information Act (RTI). However, it may be made available to anyone with the prior permission of the concerned High Court.

In August 2017, the Supreme Court finally shed its reluctance for long time for audio-video recording of court proceedings by allowing for installation of CCTV cameras in all courts, including in the Apex Court itself to record proceedings. No doubt, the Centre backed the said proposal. Contrary to this line of thinking, in 2015 the then Chief Justice of the Supreme Court, H.L.Dattu, dismissed a PIL, seeking its direction for video recording of court proceedings. Similarly, in 2016, the Bombay High Court denied permission to introduce video recording, saying, "These are courts, not stages and sets from The Truman Show."

2. Paperless Court:

In the month of July 2017, the Supreme Court witnessed for the first time a paperless court. To begin with, the court room of the then CJI, J.S.Kheher was conspicuous by the total absence of towering stacks of files on the judges' desk. Instead, slick interactive digital display devices took the front seat. According to a Supreme Court statement, all preparations had been made to evolve the Apex Court as a paperless court. It further said "As the concept of paperless court involves various technical and functional issues, it is proposed to implement the project gradually, as it would be a new method of working for the advocates and the judges". It said that "at the first instance, only fresh matters listed in the first five courts will be accessed by the judges digitally on an interactive display device."

3. Videoconferencing in marriage registration:

In January 2018, the Kerala High Court held that the Local Registrar of Marriages (Common) Rules, 2008, can allow couples to appear before him through videoconferencing. Thus, the Court allowed the plea of an NRI couple from Kollam to appear before the marriage registrar through videoconferencing. It was observed by the court that virtual presence of a person living in a different country could be ensured by videoconferencing.

4. Inauguration of e-Courts:

Giving fillip to digital working, two paperless e-courts were inaugurated on 19th August 2017 at Allahabad High Court Premises, Allahabad, Uttar Pradesh by Hon'ble Justice Madan B. Lokur (now retired), Judge and Chairman, e-Committee, Supreme Court of India. These courts were slated to start functioning from Allahabad, now Prayagraj and Lucknow. Justice Dilip Gupta, a High Court judge and also chairman of Computer Committee of the Allahabad High Court, stated that initially three jurisdictions had been identified for the e-courts namely, company matters, revisions under Section 115 of the Civil Procedure Code (CPC) and transfer applications Section 24 of the CPC. Justice Anjani Kumar Mishra and Justice Vivek Chaudhary, both High Court judges and members of the Committee of the High Court, were to preside over the e-courts at Allahabad and Lucknow respectively. He further said that the e-Courts would use digitised case records thereby curtailing human resource required to maintain files.

The following are the salient feature of these e-Courts:

• Facility of e-filing using internet after getting link from authorised website.
• Facility of e-filing by using CD/DVD/pen drive at 14 e-counters.
• Facility of purchasing electronic court fee (e-stamp) from e-counters set up at court/www.shcilestamp.com
• Facility of high speed, Wi-Fi service and bulk SMS.
• Facility of scanning at e-counters for advocates/petitioners for digitizing of documents.
• Facility of furnishing 6000 personalised cause lists at the registered mobile numbers/e-mail IDs.

The process of digitization was started in a court room of Delhi's Karkardooma lower court judiciary complex in the year 2010. On the dais, instead of a judge, was a touchscreen. All the files in that court had been digitized. Also, a videoconferencing facility was installed to record evidence from jails, forensic labs and hospitals. By April 2018, this experiment to fast-track the disposal of pending cases had reached 488 district court complexes and 342 jails. As per the averment of the Union Law Ministry, 12,249 courts are being made ready under its E-courts Mission Mode Project-all of them will get computer hardware, local area networks and standard application software.

5. Live-streaming of court proceedings:

In its judgment, Swapnil Tripathi v Supreme Court of India of 2018, the apex court in a majority opinion authored by the Chief Justice Dipak Mishra and Justice A.M. Khanwilkar, recommended that the court proceedings be broadcast live. The Court held that live-streaming proceedings is part of the right to access justice under Article 21 of the Constitution. Further, publishing court proceedings is an aspect of Article 129, per which the Supreme Court is a court of record. The Court opined that journalists, young lawyers, civil society activists and academics would all benefit from live streaming. Citing several reasons how live streaming will be beneficial to the judicial system, the Court had held "above all, sunlight is the best disinfectant". In a major step towards making court-rooms accessible to more people, the e-Committee of the Supreme Court has finalised draft rules for live-streaming and recording of court proceedings of the high courts, trial courts and tribunals, taking a final step towards the fulfilment of the Court's three-year old mandate. The committee headed by Justice D.Y. Chandrachud, has written a letter to Chief Justices of all 24 High Courts of the country, seeking inputs and suggestions on the draft rules for live-streaming and recording of court proceedings by June 30, 2021. The letter stated that "The right of access to justice, guaranteed under Article 21 of the Constitution, encompasses the right to access live court proceedings. To imbue greater transparency, inclusivity and foster access to justice, the e-Committee has undertaken the project of live- streaming of court proceedings on priority". The e-Committee is working with the Department of Justice under the National Policy and Action Plan for implementation of Information and Communication Technology (ICT) in the Indian judiciary.

At this juncture, it would be worthwhile to look into the worldwide scenario in this regard. Both the majority and the concurring opinion in the 2018 judgment noted that internationally, constitutional court proceedings are recorded in some form or the other. To begin with, in Australia, proceedings are recorded and posted on the high court's website. Proceedings of the Supreme Courts of Brazil, Canada, England and Germany are broadcast live. The Supreme Court of the USA does not permit video recording, but oral arguments are recorded, transcribed, and available publically on www.oyez.org. Democracies aside, in China also, court proceedings are live-streamed from trial courts up to the Supreme People's Court of China.

6. Parliamentary Panel on Law and Justice:

Headed by BJP Member of Parliament, Bhupender Yadav, the panel has recommended continuation of virtual courts even in a post-COVID scenario in its first report to be presented by any parliamentary panel on the impact of the pandemic, saying "digital justice is cheaper and faster" and would address "locational and economic handicap". The Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice presented its report in the month of September 2021. In its report "Functioning of the Virtual Courts/Courts Proceedings through Video-Conferencing", the panel is of the view that transfer of certain categories of cases, like cases pertaining to traffic challans or other petty offences, from regular court establishments to virtual courts will reduce the pendency of cases. It has further suggested that a full-fledged virtual court should be piloted in the first instance. The Panel also stressed that, "It is time, the courtroom which is often regarded as the last bastion of antiquated working practice opens its doors to latest technology". During the pre-COVID period, the video-conferencing facility set up was used primarily for conducting remand matters to prevent movement of prisoners between courts and jails. Such facilities had been operationalised between 3,240 court complexes and corresponding 1,272 prisons.10 The report pointed out that the Department of Justice had suggested that traffic challan cases, petty offences where summons can be issued under Section 206 of Cr.P.C., cases under Section 138 of Negotiable Instruments Act and Motor Accidents Claim Petition cases can be allowed to virtual courts. The panel opined that "all such matters where personal presence may be dispensed with, can be transferred" to virtual courts.

7. Videoconferencing and the Supreme Court:

For the first time since March 5, 2020, the Supreme Court held its first Constitutional Bench sitting through videoconferencing on March 14,2020, comprising five judges in one court to take up critical matters thar require an interpretation of the Constitution. The Court moved into virtual mode on March 25, as the corona virus disease started taking its toll throughout the country. A Bench of Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and Aniruddha Bose appeared on the dais wearing masks and maintaining two-feet distance between themselves. The Court began hearing of urgent cases through videoconferencing app called VIDYO in March 2020.

8. E-Resource Centre at Nagpur:

The then Chief Justice of the Supreme Court, S.A. Bobde and Justice D.Y. Chandrachud inaugurated Nyay Kaushal, the country's first e-resource centre, at the Judicial Officers Training Institute in Nagpur in the last week of October 2020. According to Justice Bobde, "The e-resource centre is meant to be a step at mitigating various inequalities by being connected to the Supreme Court....the High Courts and Taluka courts". The centre will provide the easiest way of filing court matters by using technology. It will help save time, money, and avoid long travel.

A virtual court was also launched for the Transport Department to deal with challan cases and provide speedy justice to litigants. The court will function from Katol and will be able to deal with traffic challan cases in Maharashtra. It will be possible for litigants to pay fines and get cases disposed of with a click of a button. All judges across the country will be able to access the court online.

Constraints before the virtual courts

1. Privacy concerns: There is a primary concern amongst the experts that virtual courts will compromise privacy of data as well as confidentiality of discussions and court proceedings. For example, courts in the USA had to cope with Zoom bombing an unwanted intrusion by hackers and internet trolls into a videoconference call while conducting court proceedings through Zoom, which is a third-party software application. Presently, third- party software applications such as VIDYO, Cisco and Jitsi are being used in India for conducting hearing through videoconferencing. "Third-party software is not only an unviable option but also poses a major security risk as such software programs and applications are prone to hacking and manipulation. The Committee recommends the Ministry of Law and Justice and Ministry of Electronics and Information Technology to address data privacy and data security concerns while developing a new platform for India's judicial system", the report said.
   
   
2. Lack of proper infrastructure: One of the main constraints in the functioning of virtual courts is the lack of proper infrastructure. Factually, a mammoth infrastructure is required to achieve the targeted ends. For example, there are 38 judges in the Calcutta High Court but on August 3, 2020, only eight hon'ble judges were able to take up matters virtually both in division bench as well as singly. Obviously, there is not sufficient
    infrastructure to enable judges to undertake virtual hearings.
   
   
3. There is a general feeling among some judges that they might be guarded in passing verbal observations which they would otherwise make, in the absence of cameras, to elicit a response from parties. Thus, there is a need to work on the attitudinal changes in the mindset of the judges.
   
   
4. Concerns have also been raised over the crashing of the server during the peak hours and the disruption of entire proceedings owing to one technical glitch.
   
   
5.  There are only few high courts in the country where scanning of old records is incomplete till date. Scanning of records is imperative for holding virtual hearings. The pending work needs to be expedited.

Conclusion

E-courts or virtual courts are the need of the hour. In the post-COVID scenario, the necessity of virtual hearings has been visualised by all. But in the larger context of the Indian judiciary, the need for virtual hearings has become all the more important. This is an open secret that the litigants in our country belong to poor strata of society, and they are hardpressed generally to travel to distant High Courts and the Supreme Court. They can really curtail their huge expenses on litigation if the virtual hearing of their cases takes place. In the beginning, a hybrid system may be used where both the physical and virtual hearings are permitted. But in the long run, the system of virtual hearings is certainly going to prove beneficial to all the stakeholders. But for this, it is necessary on the part of the government to improve the infrastructural facilities and also to address the privacy issues. All the concerns raised by the experts as well as the legal fraternity require complete attention. The Apex Court and the Parliamentary panel on law and justice have also supported the issue. Therefore, the steps taken so far by the judiciary as well as the government should not be retracted. This phenomenon has been adopted by many European countries and even the United States of America. Indian judicial system, with its inbuilt resilience, should not lag behind in the larger interest of the litigants, legal fraternity and the judiciary itself. Virtual courts should become the new normal.

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Reference:

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• Krishnadas Rajagopal, SC takes a maiden step towards a paperless court, The Hindu, Jul 4, 2017.
• H.T. Correspondent, Two e-courts set to start functioning from Monday, Aug 18, 2017.
• Press release, Information and Public Relations Department, U.P. Aug 18, 2017.
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