This Keynote Address was a part of the ‘1st Justice HR Khanna Memorial National Symposium’ organized by CAN Foundation in collaboration with National Law University, Jodhpur & Gujarat National Law University, Gandhinagar on 14th August, 2021. The transcript of the address delivered by Mr. Neeraj Kaul (hence Mr. Kaul) is as follows –
Mr. Kaul commenced his address on “Strengthening Doorstep Justice- Augmenting Access to Virtual Courts” by offering a warm welcome to all the panellists, guests, members of the CAN Foundation and participants.
Mr. Kaul opined that lockdown induced by COVID-19 had given courts a flavour of potential that technology holds in addressing key concerns, access to the judicial system and thereby justice. While commending the adoption of technology, he remarked that unlike a few months ago, the thought of virtual courts in India dispensing justice and aiding dispensation of justice no longer seems far-fetched.
He stated that virtual courts were not a new concept in the Indian judiciary. The E-courts project which was conceptualised as early as 2005, on the basis of the National Policy and Action Plan for Implementation of Information and Communications Technology (hereinafter ICT) in the judiciary, had been submitted by the E-committee of the Supreme Court of India with a vision to transform the Indian judiciary by ICT-enabled courts, according to Mr. Kaul. He further elaborated that, on 7th August 2013, then Chief Justice of India, Justice P. Sathasivam had launched the E-courts National Portal “ecourts.gov.in” of the E-courts projects, by means of which more than 2,852 district and taluka courts’ complexes had secured their presence on the National Judicial Database Portal and continue to provide case statuses, cause-lists and orders and judgements online.
Referring to the dissenting opinion of Justice DY Chandrachud in Santhini vs. Vijai Venkatesh, (2018) 1 SCC 1 , Mr. Kaul recounted how, even in the pre-pandemic era, Justice Chandrachud had favoured the use of technology and video-conferencing and had highlighted the pros of video-conferencing (hence VC). Mr. Kaul also referred to Swapnil Tripathi vs. Supreme Court of India (2018) 10 SCC 628 (hereinafter “Swapnil Tripathi case”) to highlight the benefits of adopting technology in the judicial system particularly live-streaming of courts proceedings. He noted that the Court in the Swapnil Tripathi case had highlighted the potential tangible and intangible benefits to stakeholders, especially litigants, and the Court observed that “technology could epitomize transparency, good governance and accountability and more importantly open the vista of courts transcending the four walls of the room to accommodate a large number of viewers to witness the live courts proceedings”. He remarked that this observation of the Court threw light on another aspect of virtual court, viz. an open court justice delivery system.
Mr. Kaul observed that with a surge in internet users, the idea of virtual courts was more viable now than ever before. As per Mr. Kaul, the current pandemic, as unfortunate as it was, had given the much-needed momentum to integration of ICT in the judiciary, a step that was previously considered an ambitious vision. Enumerating the benefits of virtual hearings, Mr. Kaul stated that litigants now need not leave their work to attend court as they could access proceedings from home or office. He further opined that, through this development, a lawyer could argue in any court in India without the geographic restrictions - a lawyer could argue in one court in the morning and in another later in the day.
Highlighting the enabling feature of technology, Mr. Kaul observed that virtual courts promoted access to justice, since litigants living in remote areas now had the means and tools to approach courts without travelling far off distances and could engage a lawyer of their own choice from any part of the country, instead of being constrained by force by regional choices.
Opining on how several matters were stuck at the stage of evidence and trial courts due to the suspension of physical hearing in the courts, Mr. Kaul emphasized on the need to devise a nationwide standard mechanism in order to equip lower courts to record evidence through VC.
Mr. Kaul relied on the case of State of Maharashtra vs. Dr. Praful B. Desai, AIR 2003 SC 2053 (hereinafter “Praful B. Desai case”) wherein recording of evidence through VC had been held to be an acceptable mode of recording by the Supreme Court. The court, in this case, had held that evidence could be both oral and documentary and additionally, electronic records could be produced as evidence including evidence obtained through VC. Mr. Kaul thereafter drew from how the Supreme Court had observed that the recording of evidence by video-conferencing satisfied the object of The Code of Criminal Procedure, 1973 (hereinafter Cr.P.C.) that is, evidence was to be recorded in the presence of accused, the accused and his pleader could see him clearly as if the witness was actually sitting before them. He noted that, in addition to the recording of evidence, the examination of accused persons under Section 313 of the Cr.P.C. could also be carried out through VC questionnaire, at least in summons triable cases which was in alignment with the spirit of judgements of Supreme Court in Praful B. Desai case and the case of Basavaraj R. Patil vs. State of Karnataka AIR 2000 SC 3214 (hereinafter “Basavaraj case”) . In the Basavaraj case, Mr. Kaul reiterated the view taken by the court which was that if the accused satisfies the court that he was unable to reach the venue of the Court except by bearing huge expenditure or he was unable to travel long journey due to physical incapacity or some other hardship, the Court ought to relieve him of such hardship and at the same time adopt a measure to comply with the requirements of Section 313 in a substantial manner.
Mr. Kaul then remarked that the Delhi High Court had framed Video Conferencing Rules, 2020 (hereinafter VC Rules) that contained a chapter on the recording of evidence. He noted that these Rules envisaged concepts of ‘remote point’, ‘required person’ and ‘coordinator’. As per VC Rules, the court’s designated coordinator was required to be deployed at the remote point from where the evidence of the witness was required to be recorded. The role of the coordinator, as elucidated by Mr. Kaul, was to ensure that witness answers all the questions through VC without any prompting, undue influence, coercion etc. He further noted that no Standard Operating Procedures (hence SOPs) or directions had been released by the High Court then in relation to the procedure to be adopted while appointing a coordinator.
He then highlighted the need to formulate SOPs, especially in the instance of witnesses who resided outside the state, thus enabling a judge from one state to request the district judge of the concerned state to appoint the coordinator in the particular state and send him to the remote point in that state. In observing that the current physical communication channel between different state judiciary was not swift enough, Mr. Kaul opined that a nationwide electronic mechanism needs to be developed so that the communication for appointment of a coordinator can be received from one state to another on a swift basis.
He then spoke about the need to explore the possibility of hybrid functioning, i.e., the possibility of appearing physically as well as through VC to ensure that even when the court started functioning physically, advocates, parties that were vulnerable like senior citizens, can appear through VC. However, Mr. Kaul noted that whenever a matter was taken up through hybrid mode, both the counsels that appeared physically or virtually were not able to hear each other clearly which resulted in slowing down the court’s work. He suggested that in order to resolve this issue, the possibility of installing microphones in all courts ought to be explored to increase the audio volumes. He also suggested that better WiFi or LAN connection in the courts' premises of district courts would make for a better court experience for the litigants and lawyers.
He noted that at that moment, judges in trial courts were conducting VC through 4G connection with hotspots that were plagued with connectivity issues which in turn made it difficult to conduct courts’ proceedings smoothly. Mr. Kaul suggested that work from home for courts’ staff could be fully operationalized by the distribution of computer systems to staff members. He noted that staff members working from home, though available on the call, were only able to render limited assistance due to lack of a computer system. Providing computer systems would allow courts to function efficiently while simultaneously reducing the number of staff members physically present in the court on any given day.
In Mr. Kaul’s view, one of the biggest hurdles faced during a virtual hearing was poor digital connectivity. Given the pandemic, courts were hearing cases online, SOPs had been put in place for e-filing, mentioning, listing of matters through VC, teleconferencing and more but there was a need for redressal of issues where hearings had suffered due to technical glitches, especially during peak hours, when many people had tried to log in VC system.
Mr. Kaul then remarked that there was also a need for legislative backing for the temporary and long-term measures to be undertaken by the judiciary towards the establishment of virtual courts. He opined that in addition to amending necessary laws, over-arching legislation ought to be enacted to sanction virtual courts. He highlighted that the concept of the open court was already covered under Article 145(4) of the Constitution of India, Section 337 of Cr.P.C., and Section 153B of Code of Civil Procedure, 1908 (hereinafter C.P.C.). In noting that the introduction of virtual courts had been held synonymous with increased accessibility, Mr. Kaul stated that the lack of high-speed internet contributed towards a barrier for a significant proportion of the Indian population.
Mr. Kaul, furthered his discussion on digital access of justice, by noting that familiarity with a digital vocabulary and skills was required to utilize its associated technology through repeated interaction in order to lead to familiarity with services offered online. He commented on the importance of inclusive access of such tools for compliance with the accessibility norms under the Right of Persons with Disabilities Act, 2016 and to cater to the requirements of linguistic minorities.
Mr. Kaul urged the attendees to not lose sight of the fact that to make such drastic technological advancements there has to be exhaustive digital literacy and training of all judicial officers, advocates and other court staff, including those in charge of filing and presenting files before the appropriate court. He noted that it was too far-fetched to imagine that every person, involved in the justice system at all levels, would have been able to learn by themselves and adapt to the new medium within days or weeks.
Mr. Kaul further noted that there was a Parliamentary Standing Committee Report which opined that the digital divide has three dimensions namely:
- Access divide (access to equipment and infrastructure),
- Connectivity divide (access to broadband, connectivity) and
- Skill divide (knowledge and skills to use digital platforms).
He subsequently remarked that E-Seva Kendra had been established, in all High Courts and in one District Court in each state, as a part of the pilot project to provide assistance to lawyers and litigants ranging from information to facilitation of any filing. He was of the opinion that E-Seva Kendra would go a long way in bridging the access divide and such facilitation centres ought to be set up in all court complexes across the country at the earliest. He suggested that the Ministry of Communication should also step-up efforts to ensure timely implementation of the National Broadband Mission which envisages broadband access to all.
Referring to the address of Justice Muralidhar, Mr. Kaul agreed that digital technology and virtual courts were here to stay, but they must supplement and cannot supplant physical hearing. Highlighting few of his concerns, Mr. Kaul stated that while recording evidence, the Court was also required to record the demeanour of the witness. If the evidence was recorded through VC, it would become difficult for the court to observe the demeanour of the witness and record it properly.
One of the concerns pointed out by him was that a large number of the population was not well-versed with technology, especially financially weak and illiterate citizens. In his view, it was unfair to direct and expect indigent litigants to appear in the court hearing through VC. He urged that the doors of justice must be opened physically for such litigants to effectively defend their case.
Another concern that he pointed out was that whenever an accused was arrested in a criminal case, he was required to be produced before the area magistrate within 24 hours of the arrest. Under Indian law, such a production was required to be made physically and it must continue to remain that way, to ensure that the accused was able to speak freely before the judge in case he had any complaints. He noted that production through VC could lead to instances where the accused was prevented from speaking freely by the police force.
He stated that there was also the problem of obtaining instructions from the clients, which had a material bearing, especially in a criminal case wherein an accused was being produced from judicial custody. He noted that in a VC setup, an advocate was not able to interact at all with the accused as opposed to a physical courtroom where the advocate would be able to interact with his client easily while arguing his case.
Agreeing with Justice Muralidhar’s address, Mr. Kaul remarked that in VC set up the personal touch, by way of counsel and the bench being in the immediate vicinity, during the hearing plays an important role is not possible. With voluminous records, pleadings and complex factual matrix as well as structure, he opined physical hearing would be much more efficient and effective in a number of cases, both in terms of time and course. He also stressed upon how in VC set up, law graduates, fresh out of law colleges and other associate lawyers, missed out on observing proceedings, court craft, the hustle and bustle of courts, submissions of the lawyers which were graced by clinical queries by the bench.
Mr. Kaul concluded by quoting Justice Benjamin Cardozo, who had said that “new times demand new measures in new men in the field of law or elsewhere”. Stressing upon the relevance of the statement in the current situation, Mr. Kaul stated that the fast-track adoption of technology had been a blessing in disguise for the justice delivery system of this country.
He further remarked that virtual courts and hearing cases through VC, had gained immense ground during the pandemic and would remain the new reality/ normal. He stressed upon the need for the courts to invest heavily in the development of technological facilities and infrastructure. He concluded his address by stating that access to justice needs to be re-imagined through virtual hearings but they cannot be a substitute for physical hearing.