– By Niket Kale –
The top court registered a Suo Motu case WRIT (CIVIL) NO.5/2020, taking cognizance of a letter written by senior advocate and former Supreme Court Bar Association (SCBA) president Vikas Singh, who has suggested measures for use of technology for conducting hearings in the courts. The Supreme Court’s ecommittee chairman, Justice D Y Chandrachud, resolved that “e-filing will be enabled in all courts, including trial courts, across the country for hearing urgent cases through video-conferencing”. Also, there shall be no fee for e-filing of cases during the lock-down, it is said.
The Section 6(1) of the Information Technology Act 2000 already lays down the foundation of filing of cases through e-filing (1) Where any law provides for- (a) the filing of any form, application or any other document with any office, authority, body or agency owned or controlled by the appropriate Government in a particular manner. About e-filing, we may understand that we are talking about “documents, forms, testimonies, etc., which are exchanged electronically“. The definition of Electronic data in this context can be “data in general that is exchanged via electronic communication lines”. Although for courts proceedings “data” includes multimedia, since video-conferencing is a part and parcel of the activity.
Considering the Coronavirus pandemic, it’s a welcome gesture to give a fast lane to dispose of pending cases, through use of electronic video-conferencing, which are to be recorded, and then proceedings are to be made available on the Courts websites the next day. All encouraging steps are likely to introduce you to technical constraints at the infant stage, especially when the technology has to be homegrown. GOI has always wanted our consumer data, collected by various private agencies/apps to be stored on server locations in India. I remember quite some time ago, Google INC offered to set up a Datacenter in Delhi to host data in an Indian location, and requested GOI to provide a source of power which amounted to a greedy volume equal to the power requirement of Delhi State itself. No need to say it could not proceed further. Creating a Server farm in India is a million-dollar obligation, which is one of the primary back-end requirements to run virtual or electronic court application. Building data-centres from scratch to creating backup provisions, power generators using even solar, uninterrupted data bandwidth from ISP’s. In short, huge time, money and patience required. Preferably every State should have their separate hardware setup, uniform software application, stringent security provisions to avoid any data breach, is a call of duty for the major national players in this field like National Informatics Centre (NIC).
We are capable and have come way ahead in building information infrastructure i.e. IRCTC, or the Aadhar Identification system or the entire Banking network. Remember, it allowed even Subrata Roy Sahara to negotiate property sales from Tihar conference hall through video-conferencing. So virtually anything is plausible now. This is the right time to offer technology to replace papers. When the lockdown started a few weeks ago, several Advocates have faced difficulty even in routine matters i.e. getting bail for their clients. Jail Superintendents recently had to make special arrangements to host the new inmates in separate cells to ensure isolation and restrict the spread of the virus, until their counsels can file bail applications. In Amitabh Bagchi v Ena Bagchi  it is already held that ‘presence’ does not necessarily mean actual physical presence in the court. So wherever physical presence cannot be obtained, it can be dispensed with, using technology, and it’s the time to serve this obligation.
Whether building virtual Courtrooms or using technology has many assurances. It’s something like you can bring the crime scene to the Court if using virtual-technology. The Hon. Judges can access and review real-time situations virtually and also get a response or feedback from the controlling officers, and issue orders, if needed. The side effects of lock-down are setting new trends as organizations are fast turning to virtual compliance. One of my Insurance products was coming to maturity and I could, not just furnish my documents electronically, but they also did my verification through video-call and by saving the video screenshot of mine and the company representative as proof of compliance requirement.
One of my IT professional friends said: “I am glad now the Lawyers can also work from home”. But I see it as if “now they can work until they can work”, no matter if they can’t even walk down to the nearest Court because of age or ailments, their guidance and experience can be remotely availed. Lawyers have already turned to word-processing, case search portals, client management software etc., If virtual machines bring a change in the present judicial proceedings, it will be a boon for the old and young both. If it does not require physical appearance, seniors can work conveniently and the younger generation may have referral access to a volume of Courts proceedings to experience and understand Advocacy. The advent of virtual proceedings can change the way the law profession is functioning today. Fredric I. Lederer has given an insight of how it would be “Given that judges, counsel, and witnesses need not be in the same location, there is a real possibility of trials in which no physical commonality is present. (The Road to the Virtual Courtroom?) It can be like what we have seen Flipkart, Amazon overpowering the local entities, in consumer goods and services, the professional sector also cannot remain untouched if virtual life installs. This will allow lawyers from one location to practice in multi-locations virtually, thus electronically empowering them given the amendment of section 30 of the Advocates act 1961 which entitled every registered lawyer with a State Bar, as of right to practise throughout the territories to which this Act extends.
Anyway, good things are yet to come, looking at the scenario that above 30 million cases are pending in various Indian courts together, out of which more than 2.5 million cases are in subordinate courts, we may therefore hope the rules governing e-filing will be simple and clear. It’s not yet a see-through situation, how it may work out and can it be a work from home model? Time will tell if information technology takes over, or we carry on with the ageing system of unending paperwork for some time. Right now, when I am writing these thoughts, the Hon. Court has listed the matter for hearing after four weeks, and we look forward to seeing a new society where accused or counsel never went to the Court, except virtually.
BLSc LLB MBA DCPA MDSE