Virtual Courts: The Fight of Patience and Preservation

-Nuthalapati Sushmanjali

Litigation is a profession of patience and preservation especially in a country like India where
litigation has always suffered the malaise of pendency. As per National Judicial Data Grid, there
are a total of 93,01,023 civil cases and 2,45,97,865 criminal cases pending in Indian courts. 1 A
convenient methodology to clear up the backlog is through speedy disposal by adopting
technological means to avoid the delays posed through distance, mounting costs, and other
physical aspects by shifting to virtual means of videoconferencing, e-filings, hence, enhancing
the speed of disposal. With this vision, e-Courts Integrated Mission Mode Project (hereinafter e-
CP) was launched as part of National e-Governance Plan (hereinafter NeGP) to be implemented
in High Courts and District Courts of India for which e-Committee of Supreme Court of India
was established in 2005.2 Thus, the incorporation of virtual courts as part of judicial
infrastructure had been initiated since 2005 and to be completed in three phases. Phase-I
involved computerization of 14, 249 courts in district judiciary which ended in 2015 while the
ongoing Phase-II involves improved infrastructure, videoconferencing, improved access across
web portals, judicial centers, and kiosks along with capacity building of judicial personnel. This
helped establish videoconferencing in 488 court complexes and 342 jails by 2019. 3 Several
tribunals such as Income Tax Appellate Tribunal, National Green Tribunal also similarly aligned
themselves with changing times and adopted videoconferencing.

The process has been forced into acceleration due to the COVID-19 pandemic and judiciary
rapidly shifted to virtual means ending in accumulation of stress for lawyers and judges as they
struggle to resolve technical glitches. It has tested the patience of several advocates with Sr. Adv.
Karuna Nundy labeling the stress as ‘PVSD’ or ‘Post Vidyo Stress Disorder’ (Vidyo is the
videoconferencing platform used by Supreme Court for videoconferencing).4

Barring the glitches, the Courts have attempted to function to optimum capacity. Supreme Court
heard 7,144 cases in 57 days and Delhi High Court heard around 13,000 cases with disposal of
1 National Judicial Data Grid, Supreme Court of India, (24 Aug 2020) available at:
https://njdg.ecourts.gov.in/njdgnew/?p=main/index.
2 Papiya Golder, Future of Virtual Courts in India Post Pandemic: An Analysis, 7 IJRAR 982, 984 (2020).
3 DAKSH, Video Conferencing in Indian Courts: A Pathway to the Justice Platform, DAKSH, (24 Aug 2020)
available at: https://dakshindia.org/wp-content/uploads/2020/06/Paper-4-_Video-Conferencing-in-Indian-Courts.pdf.
4 Twitter, (24 Aug 2020) available at: https://twitter.com/karunanundy/status/1287007911609212936.
2800 main cases and 11,000 miscellaneous applications between April & July with Delhi district
courts listing around 67,000 cases with disposal of more than 21,000 miscellaneous applications
and 3700 cases.5

But Bar Council of India (hereinafter BCI) remains apprehensive of the functioning of virtual
courts. The Chairman of BCI addressed a letter to Chief Justice of India requesting him to restore
the physical court hearings, 6 with a similar made by Gauhati HCBA.7 The Chairman opinionated
that it can be difficult to fix virtual hearing through mutual understanding in adversarial
litigation, but the major worry remains that access to justice is a distant dream for more than 95%
litigants. The confining of hearings to only urgent matters have also led to the escalation in the
logjam suffered by the over-burdened judiciary where 20 judges handle 10 lakh people.8

The letter also noted that virtual hearings be disposed of due to inaccessibility and inefficiency. 9
Though physical courts cannot be dispensed with, the dismissive attitude cannot be adopted
towards virtual courts as it can pave a path to keep the judicial personnel in alignment with
changing times and provide timely updates in technology. Virtual courts have to be judged and
updated in the light of opportunities and dangers that it presents.

Virtual Court Mechanism

In State of Maharashtra v. Praful Desai, the Court had likened the use of videoconferencing to
facilitating ‘actual reality’ where the parties are in presence of each other and evidence collected
through such a medium would be as per ‘procedure established by law’. 10 The mechanism of
virtual court operates through a similar ‘actual reality’ means where the process involved from
filing a plea, evidence submission, written and oral submissions, and witness examination can be
5 LiveLaw News Network, Supreme Court Heard 7144 Cases in 57 Days Via Virtual Hearing During Lockdown,
LIVELAW, Jun 20, 2020, available at: https://www.livelaw.in/top-stories/supreme-court-heard-7144-cases-in-57-
days-via-virtual-hearing-during-lockdown-158627 (last accessed on 24 Aug, 2020).
6 Nilashish Chaudhary, Start Physical Functioning of Courts & Open Hearings from June 1: BCI Chairman Writes
to CJI, LIVELAW, May 27, 2020, available at: https://www.livelaw.in/top-stories/start-physical-functioning-of-
courts-open-hearings-from-june-1-bci-chairman-writes-to-cji-157360 (last accessed on 24 Aug, 2020).
7 Akshita Saxena, Litigants Unable To Get Justice Through Virtual Courts': Gauhati HCBA Urges Chief Justice To
Re-Open Courts For Physical Hearings, LIVELAW, May 30, 2020, available at: https://www.livelaw.in/news-
updates/litigants-unable-to-get-justice-through-virtual-courts-gauhati-hcba-urges-chief-justice-to-re-open-courts-for-
physical-hearings-read-letter-157570 (last accessed on 25 Aug, 2020).
8 PTI, There are 20 judges per 10 lakh people in India: Govt, LIVEMINT, Feb 6, 2020, available at:
https://www.livemint.com/politics/news/there-are-20-judges-per-10-lakh-people-in-india-govt-1549457164121.html
(last accessed on 24 Aug, 2020).
9 Supra note 6.
10 State of Maharashtra v. Praful B. Desai (2003) 4 SCC 601.
done in presence of each other through an online platform. Such a process gives rise to the host
of issues involving advancement and endangerment which range from concerns of privacy,
cyber-security, speedy disposal by reducing time, expansive access to justice through reduced
costs, open court mechanism, and maintenance of transparency and accountability.

Avenues for Advancement

In Swapnil Tripathi & Ors. v Supreme Court and Ors., Justice Chandrachud quoted Chief Justice
Hewart stating that “Justice should not only be done, but should manifestly and undoubtedly be
seen to be done”.11 Access to virtual hearings provides an avenue to open access to judicial
functioning to the public. It provides an update to be equivalent to countries like Canada, Brazil,
United Kingdom, Australia, etc, where the concept of open courts is applied through live
streaming and broadcasting of the judicial proceedings.

It will provide an opportunity for the academicians and aspiring advocates along with law
students to learn about the nuances of legal arguments and provide a practical view of the
profession. This will help in reduction of congestion that usually prevails in courtrooms due to
interns, law students, media personnel. 12

It is a cost-effective and efficient alternative and provides ground to enable innovative methods
for delivery of legal services and legal aid to enhance the quality and effectiveness of the
administration through automation, thus enabling maintenance of transparency and
accountability.13

Virtual courts also provide ease to physically disabled people by making legal action readily
accessible from the comfort of their homes.14 The easy access to online platform aids the
working mothers and provides ease in childcare. 15 Virtual courts contain the potential of aiding
young lawyers and their adaption to cyber technology, by providing them with equal
opportunities on the same platform.

11 Swapnil Tripathi & Ors. v. Supreme Court of India & Ors. (2018) 10 SCC 628.
12 Ibid.
13 Santhini v. Vijaya Venketesh (2018) 1 SCC 1.
14 Maitreyi Hegde, Resistance To The Idea of Virtual Courts Is Misplaced, LIVELAW, May 24, 2020, (24 Aug
2020) available at: https://www.livelaw.in/columns/resistance-to-the-idea-of-virtual-courts-is-misplaced-157241.
15 Grainne McKeever, Response to Evidence Call by House of Lords Constitution Committee on the Constitutional
Implications of COVID-19 on Courts, ULSTER, (24 Aug 2020) available at:
https://pure.ulster.ac.uk/en/publications/response-to-evidence-call-by-house-of-lords-constitution-committe.
It also saves the clients the cost of traveling and other subsidiary expenses incurred due to cases
in different courts along with a reduction in fees due to virtual access to the platform at ease. 16
The clients will also be able to view the proceedings at ease and access it anytime. The
governance and administration will also heavily cash in on the benefit through reduced monetary
burden, manpower, energy, and safety for prisoners by adopting the videoconferencing means
for hearings.17 This has been shown by an example of Delhi, where shifting of traffic challan
matters to online platform has led to considerable reduced monetary burden to the government
and the concerned party.18

Such a platform will also help in spreading legal aid and promotion of alternate dispute
resolution (hereinafter ADR) mechanisms which can help in achieving a reduction of backlogged
cases and also prevent institution of new cases by diverting them to ADR channels rather than
the courts which can be saved as avenues for last resort.19

Tribunals consisting of circuit benches will also help in saving considerable time and resources
for litigators as filing, preliminary hearings, and hearings for interim relief can be conducted
online for speedy disposal.20

Advancement concerned with adoption of Virtual courts mechanism should also be viewed as an
avenue to re-assess and update the process of courts. In a recent webinar, Justice Madan B.
Lokur stated that it should be an opportunity to re-engineer as Punjab and Haryana High Court
has been following the rules of Lahore Court.21 He recounted his experience at Fiji Court where
the concise written submissions helped to reduce the time for oral arguments and helped to speed
up the process.22 Reduction of oral arguments can also help in efficient adoption of Virtual courts
mechanism.

16 Supra note 11.

17 Abdul Karim Telgi and Ors. v. State, 2008 Cri.L.J. 532 (Madras High Court).
18 Supra note 3.
19 Blake Candler, Court Adaptations during COVID-19 in the World’s Two Largest Democracies, SSRN, (24 Aug
2020) available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3609521.
20 Supra note 3.
21 Radhika Roy, Physical Court Hearings Can't Be Done Away With, But Virtual Courts Must Be Strengthened :
Justice M B Lokur, LIVELAW, May 13 2020, (24 Aug 2020) available at:
https://www.livelaw.in/top-stories/physical-court-hearings-cant-be-done-away-with-but-virtual-courts-must-be-
strengthened-justice-m-b-lokur-156717.
22 Ibid.
Road to Endangerment

Justice Lokur also mentioned the suffering of Lok Adalats which have not been functioning well.
To inculcate ADR as an option to reduce the logjam in courts, Lok Adalats which are the prime
channel for ADR mechanisms in remote areas, have to be sustained through essential
modifications and empowerment.23 This can happen if Virtual courts are looked at only as a stop-
gap measure and not as a protracted measure for further future use.

But the road to virtual courts is strewn with constraints and issues, especially in a country like
India. Thirty percent of Indian populations lack basic literacy and the number gets tripled for
digital illiteracy.24 Even the digitally literate lawyers have noted that either the teleconferencing
system suffers from repeated crashes or telecom’s broadband connectivity remains insufficient to
sustain virtual courtroom proceedings.25

In desperation to keep the judicial cogs turning, several courts and judges have turned to
platforms like Zoom which have been known to be a host of vulnerabilities ranging from ‘Zoom
bombing’, where uninvited attendees can view meetings and share obscene content, and privacy
breaches, with cybersecurity industry experts calling Zoom a ‘malware’.26 But the unrelenting
and persistent Indian judiciary may also be forced to relent under the inexorable circumstances of
crashes as suffered by Zoom recently.27

But entry of Zoom and Vidyo Mobile, the preferred platforms for virtual hearings, pose a data
security risk and this has resulted in Supreme Court issuing a notice to the Central Government
in a plea filed for banning of Zoom as it has been found to violate “Policy for usage of IT
Resources, Public Records Act, 1933, the Official Secrets Act, 1923 and Email Policy along with
its lack of end-to-end encryption which leaves it vulnerable for cyber-attacks.”28
23 Ibid.
24 FE Bureau, A look at India’s deep digital literacy divide and why it needs to be bridged, FINANCIAL
EXPRESS, Sep 24, 2018, (24 Aug 2020) available at: https://www.financialexpress.com/education-2/a-look-at-
indias-deep-digital-literacy-divide-and-why-it-needs-to-be-bridged/1323822/.
25 Supra note 19.
26 Kate O’Flaherty, Zoom’s Security Nightmare Just Got Worse: But Here’s The Reality, FORBES, Jun 5, 2020,
(24 Aug 2020) available at: https://www.forbes.com/sites/kateoflahertyuk/2020/06/05/zooms-security-nightmare-
just-got-worse-but-heres-the-reality/#c23488621316.
27 Shivali Best, Zoom down: Video conferencing platform crashes for users worldwide, MIRROR, Aug 24, 2020,
(24 Aug 2020) available at: https://www.mirror.co.uk/tech/breaking-zoom-down-video-conferencing-22569802.
28 Radhika Roy, SC Issues Notice On Plea Seeking Ban On 'ZOOM' Software Application, LIVELAW, May 22,
2020, (24 Aug 2020) available at: https://www.livelaw.in/top-stories/sc-issues-notice-on-plea-seeking-ban-on-zoom-
software-application-157154.
It is time to borrow a leaf from the jurisdiction of the United States of America where U.S.
Bankruptcy Court for Northern District of California dispensed with requirement for a physical
signature of a debtor to allow for e-filings but Jharkhand High Court is yet to update itself on the
same lines.29 Zoombombing has also been made a federal offense in United States, 30 but Indian
judiciary is yet to adopt safeguard measures or amend the Evidence Act as done by Australian
courts where Evidence Act was amended twice to deal with the pandemic times and has given
rise to ‘coronavirus jurisprudence’ on several substantive and procedural matters.31

The conduct of hearings over telephonic means also deprives the lawyers of assessing witnesses
and their demeanor, facial expressions, which crucially aids the examination of witnesses and
illustrates the attitude of judiciary.32 As noted in a case in United Kingdom where the lack of
empathy by judiciary towards the pleading party was remarked upon and helped the lawyers to
strategize the plan for proceeding further to persuade the judiciary.33

There has been criticism of e-CP, as its reliance on providing SMS Push, SMS Pull and
automated e-mails,34 provides prime opportunity for phishing tactics which can also lure the most
digital literate mind and result in a substantial data breach. 35 Several cyber-attacks like remote
code vulnerability (provides remote control to an unknown party), cross-site scripting (enables
impersonation of administration identity and data) and username enumeration (enables extraction
of username information and passwords) can put the identities of victims and witnesses at risk,
especially in cases involving matters of sexual attacks, juveniles, or those involving
sensationalized issues.

Conclusion

29 Supra note 19.

30 Nick Statt, ‘Zoombombing’ is a federal offense that could result in imprisonment, prosecutors warn, THE
VERGE, Apr 3, 2020, (24 Aug 2020) available at: https://www.theverge.com/2020/4/3/21207260/zoombombing-
crime-zoom-video-conference-hacking-pranks-doj-fbi.
31 S.I. Strong, Procedural Law in a Time of Pandemic: Australian Courts’ Response to COVID-19, SSRN, JULY 2,
2020, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3639673 (last accessed on 25 Aug, 2020).
32 Jaime Lindsey, Open Justice, Participation and Materiality: Virtual Hearings and the Court of Protection,
UKAJI, Apr 8, 2020, (24 Aug 2020) available at: http://repository.essex.ac.uk/28049/1/032.pdf.
33 Ibid.
34 Supra note 11.
35 Devina Sengupta, Cyber attacks in India surge since lockdown, THE ECONOMIC TIMES, Jun 25 2020, (24
Aug 2020) available at: https://m.economictimes.com/tech/internet/cyber-attacks-in-india-surge-since-lockdown/
articleshow/76591994.cms.
In Olga Tellis v Bombay Municipal Corporation, 36 Chief Justice Y.V. Chandrachud had
emphasized on the value of a hearing as he stated,

…Whatever its outcome, such a hearing represents a valued human

interaction in which the affected person experiences at least the satisfaction
of participating in the decision that vitally concerns her, and perhaps the
separate satisfaction of receiving an explanation of why the decision is
being made in a certain way. Both the right to be heard from, and the right
to be told why, are analytically distinct from the right to secure a different
outcome; these rights to interchange express the elementary idea that to be a
person, rather than a thing, is at least to be consulted about what is done
with one.

These words of Justice Y.V. Chandrachud can act as the benchmark as we assess the adaptability
of the virtual courts’ mechanism in an Indian litigation scenario. The promotion of inclusivity
shall be the guide and not the mere 439.96 million internet users,37 while neglecting the right to
be consulted and heard for those who are not equipped with 4G internet access, thus, developing
an inclusive infrastructure and execution of Article 21, 38 enabling the right of access to justice, 39
from the capital city or remote villages.

36 Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545.

37 Supra note 11.
38 INDIAN CONST. art 21.
39 Supra note 11.