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Virtual Courts or Open Courts?

They say justice must not be delayed, whatever is the condition and thus resort to virtual courts in times of pandemic to save lives of Judges, court officials, lawyers, media personnel and litigants. In countries like Brazil with 80 Million pending cases and India with around 10 Million cases in court, the judicial system cannot afford another setback. In India, the Supreme Court and other High courts delivered many important judgments like petitions regarding naming India as Bharat or the importance of National security over Fundamental rights. The existing virtual court dealt digitally with “on-spot traffic challans” generated by the Delhi Traffic Police by the E-Challan application developed by the National Informatics Centre. The court has disposed of 7, 30,789 challans resulting in the online collection of fine amounting to ₹89.41 crores as on May 07.


Virtual courts help in speedy disposal of cases and it reduces the cost of litigation as expenses in incurring copies of argument, list of witnesses etc., is not required in virtual hearings. But the main question of importance here is that virtual courts are the right option against open courts?


Recently Justice Chandrachud, while addressing a webinar said that open courts are an integral part of the judicial system and it cannot be deferred. The resort of virtual courts is a temporary measure so that justice is served in difficult times too. Similarly, many lawyers have also expressed their concerns regarding virtual hearings as many of them are not prone to technology and thus create hindrance in their workings.


The Supreme Court reaffirmed the importance of the Open Court principle in Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Ors, ( 1966 SCR (3)), stating,


“… A public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice.”

The Open Court principle finds its origins in the much-revered 1215 Magna Carta. The specifically relevant portion is clause 40, which translates toTo no one will we sell, to no one will we refuse or delay, right or justice...”.


This term envisages not only the right of litigants to have their case resolved by Court but also the right of the public to attend legal proceedings. This clause has laid the foundation stone for many subsequent constitutional provisions that articulate for open courts.


Difference between open courts and virtual courts:


1) Open courts have its sanction under section 320 of CrPC as well as section 158 of CPC, which says that proceedings of courts must be open for the public except in specified cases as mentioned. Supreme Court in the case of Swapnil Tripathi v. The Supreme Court (2018) held that under Article 19(1)(a),(d) & (g) also include the right to attend court proceedings. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial Tribunals, courts must generally hear causes in open and must permit the public admission to the courtroom.

2) Open courts are important for cross-examination of witnesses in which demeanour of witnesses is checked by judges by seeing witnesses’ attitude to see if they are credible witnesses. This is not possible in case of virtual courts as judges may not be able to note details about witnesses which can be seen only when he is in front, and thus the idea behind cross-examination is deferred at some point.


There is doubt on virtual courts in light of the availability of internet services with citizens also. Recently the Bar Council of India argued to the Supreme Court to start open court hearings as many lawyers are employed as they have no knowledge of internet services or other technology to argue before courts and submit their argument and evidence.


Moreover, as per report of IDA, there are around 2.77K subscriptions in rural areas only and these statistics pose serious questions of the benefits of virtual courts.

This is absolutely right that technology has helped humans in these difficult times to continue with their workings, but they can’t be replaced with existing systems permanently because it will decrease employment also. It is said that we must learn to live with the Coronavirus and thus now getting back to open courts is required.


References:

1) Two virtual courts launched to settle traffic challans, THE HINDU, https://www.thehindu.com/news/cities/Delhi/two-virtual-courts-launched-to-settle-traffic-challans/article31578149.ece

2) Pramod Dubey, Virtual Courts a sustainable option, BAR & BENCH, https://www.barandbench.com/columns/virtual-courts-a-sustainable-option


ABOUT THE AUTHOR:

Swati Tolambia is currently studying law at the School of Law, Mody University of Science & Technology.

You can contact them:https://in.linkedin.com/in/swati-tolambia-bb22401aa

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