Fairness and legislation for virtual courts

by Mugdha Mohapatra and Ajay Shah.

The weaknesses of the judicial branch are a major problem impeding the Indian state. In the field of legal system reforms, there are substantive issues (such as judicial independence, and intellectual capabilities of judges), and there are process engineering issues (of making courts work as more efficient services production organisations). There has been considerable interest in using modern computer technology, in order to reduce defect rates and increase productivity of these process (Datta et al, 2019).

Computer technology can be applied in many dimensions of the working of courts. As an example, an important path to progress lies in improving scheduling within the day. Here, a layer of rules and computer technology could be layered on top of the existing physical hearings. Within the overall field of computer engineering as applied to the legal system, one important idea is the dream of 'virtual courts'.

In this article, we present a careful definition of the term 'virtual court' and associated words. We examine the foundations of fairness that should be present in the various elements of virtual courts. We describe how the present Indian legislative landscape achieves a certain level of fairness in physical courts. These provisions interfere with the adoption of virtual courts today, and the way forward for policy lies in finding the ways to solve these issues of fairness in a virtual court setting.

The question of virtual courts

Virtual courts are an idea that is much talked about. The Department of Justice has suggested that moving to virtual courts can have significant gains for both the litigant and the court administration, as it reduces the burden on litigants to appear in courts and makes courts processes easier. On September 14, 2023, the Cabinet approved Rs.7000 crores for Phase III of the e-Courts project. A key component of this mission is the establishment of virtual courts, for which, around Rs.500 crores have been allocated. The e-Committee of the Supreme Court, which oversees the implementation of the e-Courts project, visualises `virtual courts' as having cases being filed from anywhere, and where each stage of a case can be conducted online.

Some countries such as the United States, Singapore and Canada have successfully used technology for filing, submission of evidence, and video conferencing in courts. Based on these examples, it is suggested that virtual courts should be relied upon in India, in the adjudication of cheque bouncing cases and motor accident claims, as these constitute the bulk of pending cases in the subordinate courts of India (Parliamentary Standing Committee Report on the Functioning of Virtual Courts, 2020).

Several High Courts have attempted to set up virtual courts. But litigants and lawyers continue to appear in person for adjudication, and these courts are not truly virtual. Three hurdles hold back virtual courts in India today:

1. Laws and rules that are incompatible with the vision of completely virtual courts,
2. Limitations in technology that can meet the standards of authenticity required under the law, and
3. The lack of acceptance of virtual courts by litigants and court personnel today.

In India, virtual courts can not arise in a legal vacuum. An extensive set of laws define aspects of the operation of courts. It is important to identify the provisions in the present Indian legal framework that frustrate the ready rollout of virtual courts.

These restrictions are not anachronisms. These laws and rules have been put in place to achieve important elements of fairness: to ensure that parties are sufficiently aware of proceedings through summons, that electronic evidence is authentic and immutable, witnesses are not coached or coerced and the rights of an accused person are not denied. Violations of these safeguards can disadvantage litigants, and create an uneven playing field for parties. The present arrangements have arisen from over a century of thinking, by some of the best minds that aspired to establish the rule of law within a liberal democracy. The path to virtual courts lies in deeply understanding how fairness arises (or flounders) in a court procedure, and gradually evolving the laws and rules for virtual courts in a way that achieves fairness.

1. Terminology

Several terms are used to describe the use of technology in courts in sometimes confusing ways. Drawing on the E-Courts Phase III Vision Document and documents from the Department of Justice, we assemble a set of terms and definitions for this field.

Online Hearings

The practice of conducting court business through video conferencing, where both/one of the parties appear online. Online hearings were relied upon heavily during the COVID-19 pandemic, without any further digitisation of court processes.

Digital Court

This is a court that uses a digital platform to carry out many processes that are currently being done in a physical form. These courts have dispensed with mandatory physical hearings, and requiring parties to provide physical copies of affidavits and applications. These courts are integrated with filing systems and payment systems, that are online (E-Courts Vision Document-Phase III, p.10). In practice, this has meant a courtroom where court records (such as signed documents and physical evidence) are collected, and stored in a physical format. These are then digitised and shared with the judge and all parties. These courts have the ability to conduct hearings and record evidence online, but often choose to conduct physical proceedings. They also continue to require physical summons to be provided to parties, and physical evidence to be submitted to the court. This has been implemented in the Digital Negotiable Instruments Act Courts of Delhi.

Paperless Courts

All activities in a paperless court are conducted through a digital platform. These include preparation of the list of cases to be heard for the day, dictation and storage of orders, and providing information on case status, through a dashboard. These courts may conduct hearings physically. Physical files and evidence are digitised to prepare an e-file for the judge. A paperless court transitions the internal functioning of courts from relying upon physical records to digital records. While a digital court focuses on making the interaction of the litigant, lawyers and judge digital, a paperless court only changes the inner working of the court.

Virtual Courts

In a virtual court, parties will not have to come to court for any proceedings or processes. Everything from the filing of a case to the delivery of summons, submission of evidence and recording of statements can be done online. These courts are different from the mere use of video conferencing technology in courts, as they seek to fundamentally reimagine the procedure of adjudication.

There are frequently cited examples for progress that has been made in technological developments in courts, such as in Digital Courts in Delhi and Kerala. These are developments that fit within the definitions of digital courts and online hearings, and are not fully virtual courts.

2. Laws of procedure and where it matters in the stages of a case

Procedural justice exists as a foundation of substantive justice. The principles that courts are required to follow are clearly laid down in the Civil Procedure Code (CPC), the Criminal Procedure Code (CrPC) and the Indian Evidence Act.

The recognised object of the CPC is to ensure that all parties appearing before the court are treated equitably, and settle their disputes within a clear framework of rules. In criminal cases, procedural justice is even more important as it ensures that an accused cannot be denied his personal liberty based on the decision of the court without being given a chance to defend himself. The basic safeguards that these laws provide are: (1) Make every attempt to inform a party of proceedings against them before taking any adverse action; (2) Ensure evidence is authentic and immutable; and (3) Ensure a party has all the information necessary to defend themselves. These safeguards are placed by procedural law at various stages in the life-cycle of a case. Table 1 presents the general stages of a case, and how sections of these procedural laws place are reflected as these safeguards, at each stage of the case.

Table 1: Safeguards at each stage of the case

No.	Stages of a case	Safeguard	Relevant Provision
1.	Filing of a Case	Parties should submit complete documents. All documents must be compliant with the specified format.	S. 26 and Order II, Order VI of the CPC, Chapter XVII and Chapter XV of the CrPC.
2.	Summons and Warrants	Every attempt should be made to inform parties regarding the proceedings against them. All modes of issuing summons should be exhausted before adverse proceedings or warrants are used.	Order V of the CPC, Chapter VI of the CrPC.
3.	Submission of Responses	Parties should be given an opportunity to respond to the claims made or charges against them.	Order VIII CPC, Chapter XVI and Chapter XVIII CrPC
4.	Submission of Evidence	Evidence should be authentic and immutable.	Chapter IV and V of the Indian Evidence Act.
5.	Recording of Statements and Cross-Examination	Identity of the person giving a statement must be proven. Statements must not be recorded under coercion and duress or coaching. Statements must be recorded under oath.	Order XVI of CPC, Chapter XXIII of CrPC.
6.	Arguments and Judgement	Every party should have an opportunity to present their argument. Parties should be aware of the outcome and opportunity of appeal	Order XX of the CPC and Chapter XXVII of the CrPC

Recently, there have been some changes to these existing procedural laws, but they have been changes in the name of the law, rather than in the substance of the law, when viewed from the perspective of implementing virtual courts.

3. Methodology

The analysis in this article takes two broad approaches: (a) An examination of the existing procedural laws (CPC and CrPC) and how they apply to virtual courts, based on both case laws and secondary literature. (b) A study of the rules of practice, policy documents and implementation guidelines for court digitisation in order to identify how technology has been deployed in courts.

We conducted a legal examination of the CPC, CrPC and Indian Evidence Act, from the perspective of the different stages of a case (listed in Table 1). Table 2 presents all the stages of a case which cannot be done online, without violating the safeguards identified in Table 1.

Table 2: Stages of a case and admissibility of online mode

No.	Stages of a case	Can be done entirely online under CPC	Can be done entirely online under CrPC
1.	Filing of a Case	Yes	Yes
2.	Summons and Warrants	No (Order V, CPC)	No (Order VI,CrPC)
3.	Submission of Responses	Yes	Yes
4.	Submission of Evidence	No (S. 64 and S. 65(B) Indian Evidence Act, 1872)	No (S. 64 and S. 65(B) Indian Evidence Act, 1872)
5.	Recording of Statements and Cross-Examination	No	No
6.	Arguments and Judgement	Yes	Yes

Three stages -- Summons, Submission of evidence, and Recording of statements and cross-examination -- cannot be done entirely online. We now describe the presence of safeguards in these laws in the following Sections.

4. Legislative foundations and Digital Delivery of Summons

The physical form of delivery of summons is the only way of delivering summons under the CPC and CrPC. Chapter VI of the Bharatiya Nagarik Suraksha Sanhita, 2023 bill recognises electronic and digital modes of summons as valid in criminal cases. Here, if the court is satisfied that an electronic summons has been delivered, it can deem that the summons is duly served.

Electronic/ digital summons are a mode of delivery in addition to physical summons. But the requirement to deliver a physical summons has not been dispensed with. In order to consider SMS/ Whatsapp/ email as sufficient forms of summons delivery for all matters as a norm, Order V of the CPC, and Chapter VI of the CrPC, requires to be amended.

The aim of the summons processes is to ensure that the defendant is aware of proceedings pending against him, and the required date of appearance. Furthermore, the defendant must also have sufficient time to respond to the summons and find a lawyer. In both civil and criminal cases, registered post and physical delivery of summons is the only form of delivery of summons accepted in the CPC and CrPC. Under Order V of the CPC and Chapter VI of the CrPC, physical delivery may also be done by affixing summons in a public place, publishing summons in a newspaper or handing the summons to an adult male member of the family of the person being summoned.

For instance, in the case of Sushil Kumar Sabharwal v. Gurpreet Singh, the court held that a defendant cannot be set ex-parte (setting a party ex-parte allows the court to proceed with the case in the absence of the defendant), unless sufficient service of summons can be proven and adequate time has been allowed. Not doing so would be tantamount to a failure of justice, for no fault of the defendant.

In a civil case, as per Order IX Rule 6 of the CPC, the court must be satisfied that summons have been duly served, in order to set a party ex-parte. In a criminal case, no proceedings can take place in the absence of the accused or his pleader, and a warrant for arrest must be issued. Courts ensure that summons have been delivered adequately, and only if they find there is non-compliance with summons, do they issue a warrant.

In addition to registered post and physical delivery, summons may be delivered through email/ WhatsApp. The Supreme Court allowed online delivery of summons, owing to the physical difficulties faced during the pandemic, in Re Cognizance For Extension Of Limitation. Each High Court can prescribe additional modes of delivery of summons depending on case types by amending its rules of practice. Service of summons through email has been permitted in Delhi, in addition to physical summons, only for civil cases. The Punjab and Haryana High Court has permitted online service in revenue matters. However, in the case of Hardev Ram Dhaka v. Union of India, the Registrar of the Supreme Court noted that service through e-mail is not valid, as it is not provided for in the rules. Thus, the service of summons through these alternative, electronic forms, have not yet been accepted as the norm for delivery of summons.

Thus, a mere amendment to allow digital summons is not fair as, not ensuring adequate delivery of summons can disadvantage the defendant in a civil case and potentially deprive an accused of his liberty without a chance of being heard.

5. Legislative foundations and Submission of Evidence Online

An important feature of an entirely virtual court is the ability to submit evidence digitally. The Indian Evidence Act (1872) governs the submission and evaluation of evidence in both civil and criminal cases. Allowing parties to submit primary evidence entirely digitally is not possible under the Act. While an electronic record can be submitted digitally, it must be accompanied by a certificate under a separate section of the Act (S. 65B).

Under the Indian Evidence Act, evidence is classified into two types: primary evidence and secondary evidence. Under S. 62 of the Indian Evidence Act, primary evidence refers to an original document submitted to the court. Under S. 63, secondary evidence refers to copies of the original document. Lastly, S. 64 requires that documents must be proved by primary evidence, unless otherwise allowed. This is because of the principle of best evidence.

The principle of best evidence requires that a party cannot provide inferior evidence as long as there is better/ superior proof of it. For instance, in a criminal complaint against the offence of cheque bouncing, the complainant is required to submit a physical copy of the cheque.

A different procedure is required to be followed where an electronic record is required to be submitted as evidence. Under S. 65B, a document which is created, stored, copied on an electronic device, and is then shared, must be accompanied by a certificate, that provides the particulars of the device that it was created on, and a certificate signed by a person who is in charge of its management (S. 65B(4)). The purpose of this section is to ensure the authenticity and immutability of electronic output.

Most recently, in the case of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal, the court clarified that a S. 65B certificate was required to be presented where the digital device, on which the electronic record is first created, cannot be presented before the court. For instance, in a contractual dispute, a copy of the electronically created and signed contract, which is stored in the cloud, must be accompanied by a S. 65B certificate, by the person who is managing/ in charge of the server, as the server cannot be brought to court. Submission of WhatsApp chats, or records of UPI payments where information is stored in the cloud, must also be accompanied by a S. 65B certificate. At the moment, such certificates are physically generated, signed and filed.

The draft of the Bharatiya Sakshya Bill (2023), through S. 61 and S. 63, seeks to address this issue by also recognising electronic/ digital records as primary evidence. The bill continues to maintain a distinction between primary evidence and secondary evidence, and the principle of best evidence has not been done away with it.

The strict standards of authenticity and immutability provided in the Indian Evidence Act should not be changed as this can lead to inaccurate judgements, and cause higher courts to waste time on correcting errors.

6. Legislative foundations, and Recording of Witness Statements and Cross-Examination Online

While video conferencing can be used in both civil and criminal cases, for recording of evidence and cross-examination, these include ensuring the identity of the accused, ensuring that the witness is not being tutored or coerced, and appointing an officer to be present with the witness (State of Maharashtra vs. Dr. Praful B. Desai). The same safeguards have also been implemented through video-conferencing based on the `Model Video Conferencing Rules', prepared by the Supreme Court e-committee.

The desirability of online hearings has been debated extensively (Ferguson, 2022; Legg and Song, 2021). The risks with online hearings include challenges in assessing credibility, establishing emotional connections among courtroom participants, maintaining the solemnity of the legal processes, and transparency in the conduct of proceedings. As a result of these risks, the use of video conferencing depends on the type of case, and varies from case to case. Courts may also require parties to seek permission to use video conferencing. The use of video conferencing has also raised questions on the efficacy of using online modes to conduct trials, because of the possibility of reduced witness credibility, reduced information on non-verbal cues, the reduced importance of the courtroom in the mind of a litigant (Abrams, 2022; Salyzyn, 2012).

The rigour of these requirements have led to the deployment of non-IT-based alternatives to ease the ability to record witness statements and conduct cross-examinations. For instance, in Delhi, witnesses are not required to go to a courtroom, but to a 'Court Point'. A Court Point is the courtroom, or where the court is physically convened, or where proceedings are conducted in accordance with court directions. These 'court points' are, in fact, extensions of the physical court, and require the physical presence of the litigant, where oath is administered in the presence of a coordinator. The verification of identity is carried out based on government issued identity cards, or an affidavit by a specified authority. Similar rules exist in several other states, such as Odisha and Telangana (P.R. and Mishra, 2021).

7. The way forward for virtual courts

During the pandemic, courts in India relied upon online hearings, where the court staff and registry continued to prepare physical files to sent to the judge. These were not `virtual courts' in the sense of the terminology of this article. The delivery of summons through physical forms was affected, and courts allowed digital summons. But they did not issue any adverse orders against non-compliance with summons. The submission of evidence was through physical forms. Legal scholars highlighted how online hearings during the pandemic led to the loss of certain protections of accused persons, reduced the amount of information on litigants, and the testimony that is available to a judge (Kirby, 2021).

The analysis of legal provisions in procedural laws shows that, at present, it is not possible to construct a fully virtual court owing to the present text of the Civil Procedure Code, the Criminal Procedure Code and the Indian Evidence Act. The safeguards embedded in these laws are over a 100 years old, and are motivated by fundamental concepts of fairness, rule of law and liberal democracy. These include ensuring parties are aware of the proceedings, that evidence is authentic and reliable, that witnesses are not coached or coerced, and that the right of an accused to observe proceedings against him are not compromised. As the cases cited above show, these principles have been reiterated over and over, and are binding upon all judges in India.

What, then, is the path to virtual courts? The need of the hour is not a fragile legal strategy to get things done, nor is it in a quick amendment bill. The need of the hour is sophisticated research. We must delve deeper into what Kelkar and Shah, 2022, term the `invisible infrastructure' that shapes the working of courts in India. These are the unnoticed underlying systems, frameworks, norms, and processes that enable interventions to succeed. There is a need for cautious examination of the law and technological solutions, in order to avoid unintended consequences. A research literature is now required around the following important questions. Will virtual courts be beneficial for litigants? What are the technological solutions that can be used to maintain the legal safeguards highlighted above? How should Courts be trained to use such technical solutions? How can procedural principles of fair play in courts be balanced with the rules that enable virtual courts?

References

P. Datta, M. Hans, M. Mishra, I. Patnaik, P. Regy, S. Roy, S. Sapatnekar, A. Shah, A. P. Singh and S. Sundaresan, How to Modernise the Working of Courts and Tribunals in India, NIPFP Working paper series (2019).

A. Ferguson, Courts without Court , Vanderbilt Law Review (2022).

A. Salyzyn, New Lens: Reframing the Conversation about the Use of Video Conferencing in Civil Trials in Ontario , Osgoode Hall Law Journal (2012).

Supreme Court E-Committee, E-Courts- Phase III Vision Document , 2023.

M. Kirby, Covid-19 & Law in India & Australia- Lessons from the Pandemic for the Costs and Delays of Legal Process, National Law School of India Review (2021).

M. Legg and A. Song, The Courts, the Remote Hearing and the Pandemic: From Action to Reflection, UNSW Law Journal (2021).

Parliamentary Standing Committee Report on the functioning of virtual courts, (2020).

Sandhya P.R. and A. Mishra, Video Conferencing, E- Filing, and Live Streaming in the High Court, (2021).

Z. Abrams, Can justice be served online?, American Psychological Association (2022).

Mugdha Mohapatra is a Research Associate at XKDR Forum. Discussions with Ayushi Singhal, Aayush Tainwala, Aayush Kedia, Anjali Sharma, Karthik Suresh, Pavithra Manivannan, Siddarth Raman, Shubho Roy, Susan Thomas, and two anonymous reviewers have helped shape and improve this article.