Thursday, October 22, 2020
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Virtual Courts: Can it be a perfect substitute for open courts

Abstract

Due to COVID-19 Pandemic Situation, our Prime Minister had ordered complete Lockdown all over India. The question was aroused that what about Courts, if the courts are also closed then where will our citizens go for Justice for protection of their Fundamental Rights, against Crimes, etc. Then Virtual Courts started and we have also seen that Virtual courts are also started in many countries. There have been many landmark Judgements /Orders /Guidelines /Notifications, etc passed through Virtual courts only.
This Article put forward Authors views that Whether Virtual courts: Can be a perfect substitute for open court or not? Lastly Author have also mentioned some suggestions while concluding the same. 
Introduction

“Justice delayed is justice denied” we have often heard about this, but in this pandemic situation it fits proper, where lockdown rules were also applied on all Courts of India. The Courts were also forced to closed because of covid-19 and its precautionary measures. Before going further it would be appropriate to know few important things about covid-19.
Covid 19 pandemic situation

The coronavirus flare-up became exposed on December 31, 2019 when China educated the World Health Organization regarding a bunch of instances of pneumonia of an obscure reason in Wuhan City in Hubei Province. Accordingly the sickness spread to more Provinces in China, and to the remainder of the world. The WHO has now pronounced it a pandemic. The infection has been named SARS-CoV-2 and the sickness is presently called COVID-19
The current given situation India has crossed 400,000 benchmarks for confirmed coronavirus cases and highest number in Asia for cases. Following the World Health Organization (WHO) directive labelling the outbreak of Coronavirus (COVID-19) as a global pandemic, the Government of India, with an intent to reduce it, had taken appropriate measures, including complete lockdown. So complete lockdown included closure of all the courts. 
Order to initiate virtual courts by supreme court  
Supreme Court on dated 23rd march 2020 made an Order: 
This Court has taken Suo Motu awareness of the circumstance emerging out of the test looked by the nation by virtue of Covid-19 Virus and resultant troubles that might be looked by defendants. 
To block such troubles and to guarantee that legal advisors/prosecutors don’t need to come genuinely to record , it is therefore requested that a time of impediment in every single such continuing, regardless of the confinement recommended under the general law or Special Laws whether condonable or not will stand broadened w.e.f. fifteenth March 2020 till further request/s to be passed by this Court in present procedures. 
We are practicing this force under Article 142 read with Article 141 of the Constitution of India and announce that this request is a coupling request inside the significance of Article 141 on all Courts/Tribunals and specialists. This request might be brought to the notification of every single High Court for being conveyed to every single subordinate Court/Tribunals inside their individual locale. Issue notice to all the Registrars General of the High Courts, returnable in four weeks. 
Advantages and challenges of virtual courts

Advantages of Virtual Courts:
 The expansion of E-courts will ensure easy access to justice at affordable courts to all sections of society.
 The experience of an e-court will be much more personalised and private as opposed to theatrics involving public-speech based system.
 The proliferation of e-courts will make litigation faster, given that required logistics are provided.
 In India, there is a massive backlog of cases in every court. As of April 2018, there were over three crore cases pending across the Supreme Court, the High Courts, and the subordinate courts (including district courts).
 The judiciary system in India with the help of e-courts can overcome the challenges and make the service delivery mechanism transparent and cost-efficient.
 The e-courts will also benefit the judicial system and will provide flexible retrieval of stored information. This will allow judges to view the proceedings of a previous case or to retrieve other important documents at the click of a button.
 Data sharing between different courts and various departments will also be made easy as everything would be available online under the integrated system.
Challenges of virtual courts
In the present circumstances, the virtual courts may seem a necessity, however, it goes without saying that at present there are a whole lot of glitches and shortcomings in its execution.
 The e-filling process is riddled with endless complications.
 e-Courts will also prove to be cost-intensive as setting up state of the art e-courts will require the deployment of new-age technology.
 Hacking and cybersecurity: On the top of technology, cyber-security will be a huge concern too. The government has initiated remedial steps to address this problem and formulated the Cyber Security Strategy but it is more on the side of prescribed guidelines alone. The practical and actual implementation of the same remains to be seen.
 Infrastructure: Challenges can erupt due to insufficient infrastructure and non-availability of electricity and internet connectivity in most of the Talukas/villages.
 Electricity connection is a must along with internet connectivity and computers to ensure justice reaches every section equally.
 Maintaining e-courts record: The paralegal staff is not well equipped and trained to effectively handle document or record evidence, and make them readily accessible to the litigant, to the council as well as to the court.
 Other issues might involve the litigant’s lack of confidence in the process due to lack of proximity.
Virtual Court hearings across the world

Unavoidably and like each circle of ordinary life, existing contest goal procedures, regardless of whether in national courts or mediation, are as of now encountering the effect of the COVID-19 flare-up. Where potential, hearings have been postponed or migrated. Be that as it may, as the lockdowns reach out for years to come, hearings will in any case should be held. Numerous national courts and arbitral establishments are presently alive to these issues and are taking a gander at arrangements, specifically mechanical ones.
United Kingdom: England and Wales- National Courts
Government declarations have focused on the imperative significance of the proceeded with organization of equity in England and Wales and the courts keep on working, however with modifications. Most affable court structures right now stay open, yet polite hearings are presently being directed distantly at every possible opportunity. Physical hearings are possibly to happen if a distant hearing is absurd and appropriate courses of action can be made to guarantee security. Common courts have since quite a while ago allowed far off hearings in proper conditions, however another “Convention Regarding Remote Hearings” was given on March 20, 2020 to give further direction, remembering for the types of distant innovation offered and utilization of electronic documentation. The courts’ innovative framework is additionally being quickly up-scaled to help extended usage of phone, video and other far off innovation (counting Skype for Business, Zoom and BT telephone call). On March 24, 2020, the Supreme Court directed its first since forever distant hearing. The Supreme Court building has shut and it will be hearing all cases and conveying decisions through video conferencing until further notification.
United Arab Emirates- The Dubai Courts
The Dubai courts has since confirmed that, all hearings will occur electronically utilising Microsoft Teams. This allows parties to participate in hearings by videoconference. Filing of all new cases is also being carried out electronically.
The DIFC Court
The court is encouraging professionals to utilize the eBundling programming and require authorization not to do as such for hearings recorded sooner rather than later. It has for quite some time been ordinary in the DIFC for the two adjudicators and promoters to go to hearings by video-conferencing when, with the court’s consent, it is viewed as suitable to do as such.
United States of America-National Courts
The Coronavirus Aid, Relief, and Economic Security Act, Public Law No: 116-136 (the CARES Act), marked into law on March 27, gave something other than the monetary boost, significantly Section 15002 considers the utilization of videoconferencing in certain* legal issues. 
USCourts.gov has a page devoted to Judiciary Preparedness for Coronavirus (COVID-19) which is refreshed often and which incorporates a connect to different government courts to evaluate the individual advances being taken by the particular courts. The Supreme Court, with regards to general wellbeing safety measures prescribed in light of COVID-19, deferred every oral contention as of now planned for the March and April meetings and expects to look at the alternatives for rescheduling those cases before the finish of the Term. The May meeting is because of see the virtual becoming aware of a set number of recently deferred cases with Justices and guidance taking an interest distantly. The US Court of Appeals for the Federal Circuit gave a warning that it would hold every oral contention telephonically during the court’s May 2020 meeting. Lower courts, similar to the United States District Court for the Eastern District of New York have given various managerial requests with respect to the organization of equity. One such Order urges judges to lead procedures by phone or video conferencing where practicable. 
.France-National Courts
The French courts have been closed since March 16, 2020 with the exception of essential litigation, including litigation relating to “correctional hearings for pre-trial detention and judicial review measures,” “immediate appearances,” “appearances before the investigating judge and the liberty and custody judge,” and “hearings of the sentence enforcement judge for emergency management.” Apart from these essential matters, hearings have been postponed.
Germany-National Courts
The courts keep on working though with decreased court staff. In-person hearings, in any case, have been delayed for as long as a half year. The particular treatment of these postponements is left to the courts bringing about some local contrasts. By and large oral hearings are just occurring for earnest issues. While German common method law makes arrangement for the utilization of video conferencing for hearings it has only here and there been utilized. This is to some extent in light of the fact that the courts are not prepared to do as such, and further on the grounds that this arrangement isn’t appropriate if the gatherings or witnesses are situated outside of Germany.
Turkey
The COVID-19 outbreak has had an impact on dispute resolution and enforcement proceedings, before courts, arbitration centers and enforcement/bankruptcy offices around the world. Please see below for a summary outlining current dispute resolution-related COVID-19 measures in Turkey. National courts and enforcement/bankruptcy proceedings Pursuant to the Council of Judges and Prosecutors’ (Hakimler ve Savcılar Kurulu) decision dated April 30, 2020, all non-emergency court hearings are postponed to a date later than June 15, 2020. As per the Presidential Decree numbered 2480 distributed on the Official Gazette on April 30, 2020 (the “DECREE”), the accompanying across the country quantifies with respect to implementation and liquidation procedures, barring kid bolster installments, will be set up until June 15, 2020: All progressing authorization and chapter 11 procedures have been suspended. New requirement and chapter 11 procedures can’t be started. Between time connection choices won’t be executed. Remain of procedures would influence requirement of security, which should be abandoned through execution workplaces. Notwithstanding the remain/delay of procedures, timespans with respect to beginning, exercise and end of any rights including the legal time limit or remedy terms for starting a claim or requirement continuing, documenting an application, grievance or complaint, sending sees are remained until June 15, 2020 as per the Decree.Statutory timeframes under the implementation and liquidation enactment or cutoff times forced by execution/chapter 11 workplaces or judges are additionally remained until June 15, 2020, to secure gatherings’ privileges and interests.
Singapore-National Courts
Before COVID-19 hit Singapore, the Singapore courts had a current practice set up that empowered legal counselors to make applications by video interface. The Singapore court is likewise very used to gatherings or witnesses showing up in court by method of video connect. To the extent that the Supreme Court is concerned, hearings are proceeding. Since the spread of COVID-19, the Singapore Court has executed an equity coherence plan by partitioning the appointed authorities of the High Court into two separate groups, Team An and Team B. The High Court has received game plans to such an extent that no appointed authority from Team A will be in physical nearness or in close contact with an adjudicator from Team B. Accordingly, there have been court procedures with a seat of three appointed authorities where one adjudicator goes to by video interface. For instance, in circumstances when two adjudicators are from Team B and one appointed authority is from Team A, the adjudicator from Team A goes to by video connect. To put it plainly, while the Singapore courts have taken measures to execute social separating, these measures are an augmentation of the previous utilization of participation by video connect preceding COVID-19.
Hong Kong-National Courts
On January 29, 2020 cases in the national courts of Hong Kong started to be deferred in what has been alluded to as the General Adjourned Period (the GAP). The length of the GAP, be that as it may, stayed questionable. Beginning expectations were to come back to ordinary activities around the finish of March, anyway this has not been conceivable. In an announcement discharged by the Chief Justice of the Court of Final Appeal the court gave some knowledge into steps being taken by the Courts to build court administrations without trading off wellbeing and security. Beside basic strides of proactive case the board, the Court has effectively considered growing the extent of hearings (past simply dire or fundamental issues) by hearing entries by phone, by video-conferencing or comparative methods for visual guide and by and large creation utilization of innovation.
Australia-National Courts
The High Court in Canberra, has declared that following the appropriation of strategies confining travel and gatherings and far off work environment game plans, the High Court of Australia won’t be sitting in Canberra or on circuit in the long periods of April, May and June. The subject of future sittings is proposed to be checked on in June. The Court has demonstrated that it will keep on conveying decisions and manage exceptional leave applications including hearings as fundamental at singular libraries and will hear any dire issues that may emerge by video connect. The Federal Court of Australia has declared that “Our counters are shut, however we’re despite everything working” and has distributed a Special Measures Information Note (SMIN-1) which sets out courses of action for the proceeded with activity of the Federal Court during the COVID-19 flare-up in Australia. These incorporate to the degree conceivable, elective courses of action, for example, hearing issues on the papers, by phone or by other distant access innovation.
The Netherlands-National Courts
The courts have been shut since March 17, 2020 and will stay shut (at any rate) up to and including April 6, 2020. Therefore there will be no court hearings during this period except for earnest cases. The Dutch legal specialists have expressed that a case will just qualify as “critical” in remarkable conditions, for example if the postponement of the court choice would negatively affect the privileges of a suspect or defendant. Such “pressing cases” incorporate the knowing about insolvency applications, matters of authority of suspects in criminal cases and certain family law matters, (for example, out-of-home positions). In crisis alleviation procedures, just in excellent cases a meeting will be held. Composed strategies, nonetheless, are proceeding however much as could be expected.
Canada-National Courts
The Court of Appeal keeps on hearing interests, applications and movements yet as of March 23, 2020, these are not face to face. The Court’s Pandemic Response Plan is being adjusted to address concerns and difficulties of COVID-19 with the end goal of moderating negative consequences for Court tasks and the conveyance of equity. The court has executed Emergency Practice Directions (EPDs) which will stay in actuality until ended. All issues set down under the watchful eye of a solitary appointed authority will be heard by phone meeting and all interests and applications under the steady gaze of a three adjudicator board will be heard electronically (by videoconference or by phone). A Notice to Public and the Profession was distributed setting out, in detail, what makes a difference were influenced and how the Court expects to continue with its activities.
As per one News-Article – 
‘The need to keeps courts running during the lockdown constrained the legal executive over the world to change to virtual hearings. Official figures show that the Supreme Court of the UK took up 10 cases from March 24 and articulated 15 decisions. While no particular number is accessible for cases heard by the top court of the US, it gave 20 decisions between March 30 and June 8. Between April 7 and June 3, Australia’s top court heard 94 cases and articulated 12 decisions while the Canadian Supreme Court heard 173 cases and conveyed five decisions between March 27 and June 11. The South African SC took up 51 cases during their lockdown and gave 58 decisions. The Singapore SC heard 146 cases during their lockdown and passed 98 decisions. The top court of Spain heard 800 cases through video conferencing’.
Observations

As per Article published in The Indian Express on June 19,2020   
which states- “ 
The Supreme Court, which went into virtual mode to hear cases in the midst of the Covid-19 pandemic, has so far heard 6,991 cases — unmistakably more than other top courts on the planet — official figures show. Thursday denoted the 56th day of virtual hearings, which commenced on March 23. An aggregate of 617 seats, including 293 for fundamental issues and 324 for survey petitions, sat in this period.. 
The pinnacle court likewise conveyed 132 decisions in fundamental issues and 538 decisions in associated matters during this period. 
Cases taken up by the court during this period incorporate those identified with transients and different parts of the board of Covid-19 circumstance. 
The top court took suo motu comprehension of the perils of congestion in jails and requested arrival of undertrials and convicts on parole or bail. It mulled over states of kids in adolescent homes and coordinated that they be restored with family at every possible opportunity.
while another News-Article in Times of India  
It states that- SCI emerges global leader in virtual court hearings during lockdown.
“India’s three-level equity conveyance system may have been panned as snail-paced, yet during the lockdown time frame the Supreme Court of India rose as the worldwide pioneer in engaging 5,007 cases through virtual court hearings. 
The SC additionally articulated 99 decisions from March 23 till date. 
There gives off an impression of being no opposition from any of the top courts from different nations, which likewise depended on virtual court process for hearing cases during lockdown period to forestall spread of Covid-19. United Kingdom’s Supreme Court heard a sum of 10 cases from March 24 till date and articulated 15 decisions.”
On 15th July 2020 The Supreme Court of India hold the “First virtual Constitution Bench hearing” 
A Bench of judges Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose seemed wearing masks and keeping up about two-feet separation between them on the seat. The primary case that was heard by the five-judge seat was a lawful tussle on whether Center or states have the ability to give reservation to in-administration up-and-comers in post-graduate clinical qualification courses. The supplication was raised by Tamil Nadu Medical Officers Association. 
The Supreme Court started knowing about critical cases through video conferencing application called VIDYO in March after the burden of lockdown to check the spread of Covid-19. The volume of cases taken up regularly has been less in the previous three months. Starting this week, the Supreme Court has recorded standard issues and Constitution Bench matters for hearing also. With the pandemic giving no indications of let up, there is vulnerability over when physical court hearings can continue. Till such time, virtual mode might be the main path left for courts to continue working.
In latestlaws  its shows the importance of E-justice from year 1990, it states that-
In India, E-Justice has been considered as an organ of E-Governance. The Indian legal executive involves 15000 courts. Endeavors for computerization have been going on since 1990. It has been named as a MMP (Mission Mode venture). E-courts will empower to accomplish different destinations to help the legal organization in smoothing out cases, to diminish pendency and cost of case, to give databases, to guarantee E-Filing, E – sees, delivering observers through video conferencing, carefully marked court orders, digitalized ADR. 
The Supreme Court had recently launched an application for translating judgements into 9 languages. Tele Justice facility is also in use. The Honourable Supreme court had also provided for live streaming of courts cases of public and national importance by the case of Swapnil Tripathi V UOI. 
The Chief Justice of India, Shri SA Bobde had specifically mentioned that “Technology it here to stay”. 
Justice Chandrachud recently remarked “ virtual courts is an attempt by the judiciary to make the citizens believe that we value your time.” Thanks to technology that the open court of different countries are able to function and are acting as a safeguard to protect the rights of citizens during the pandemic.  Technology and innovation are ever evolving concepts. Artificial intelligence is an example of the latest innovation. 
Justice SA Bobde had proposed to use artificial intelligence in courts to help in better administration of justice delivery. However, he made it clear that AI will not replace human judicial prudence.
Conclusion

“We are stuck with technology when what we really want is just stuff that works.”
– Douglas Adams
From the above analysis, we can conclude that yes, Virtual court is very beneficial for this Covid-19 Pandemic times, but it will be not fair to state that virtual courts can be perfect substitute for open courts.
But using both together that is open courts and virtual courts(e-filing of cases, e-payment of court fees, e-records of papers, e-petitions, etc) can be very beneficial and save lot of time of courts.
 Bibliography/References
1. https://www.thehindu.com/topic/coronavirus/
2. https://main.sci.gov.in/supremecourt/2020/10787/10787_2020_1_12_21570_Order_23-Mar-2020.pdf
3. https://www.drishtiias.com/loksabha-rajyasabha-discussions/the-big-picture-virtual-courts-and-way-forward
4. https://www.nortonrosefulbright.com/en/knowledge/publications/bbfeb594/covid-19-and-the-global-approach-to-further-court-proceedings-hearings
5. https://indianexpress.com/article/india/supreme-court-hears-cases-in-virtual-mode-6465632/
6. https://timesofindia.indiatimes.com/india/sci-emerges-global-leader-in-virtual-court-hearings-during-lockdown/articleshow/76396775.cms
7. https://www.hindustantimes.com/india-news/supreme-court-holds-first-virtual-constitution-bench-hearing/story-6OIJDbbzpliujLFjz1z3mI.html
8. https://www.latestlaws.com/articles/virtual-courts-the-new-normal/

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