Virtual Courts: A reality - N. S. Nappinai Advocate & Founder-Cyber Saathi Website - cybersaathi.org - Judicial ...
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Virtual Courts: A reality
N. S. Nappinai
Advocate
nappinai@nappinai.com
&
Founder- Cyber Saathi
Website - cybersaathi.org
Author – Technology Laws Decoded
N S Nappinai© (except images)
• Family Courts & Virtual Proceedings
N S Nappinai© (except images)Propositions
• Family Courts As Virtual Courts;
• Issues & Concerns;
• From setting up Virtual Courts to Conduct
of Proceedings;
• Do we just apply existing age-old laws and
techniques to new dimensions? Or evolve
new techniques?
• Handling the complexities during covid
times;
N S Nappinai© (except images)• Shops to Ecommerce – Not the same for
Courts!
N S Nappinai© (except images)Cyber Courts – Not just a Covid19
Construct – Eg. From Across the
World
• Michigan Cyber Courts: 2002 – 2012 –
fructifies with the Michigan Public Act 333
(2012) – Commercial Courts & Commercial
Disputes;
• 2017: China’s first Cyber Court in Hangzhou
("e-commerce capital of China"): "Internet
courts reach geographic boundaries and save
considerable time in traditional hearings," said
Wang Jiangqiao, vice president of the court.
N S Nappinai© (except images)• V Courts – Issues & Concerns
N S Nappinai© (except images)Challenge 1 - Access to justice
• Art 39A of the Constitution provides for equal
justice and free legal aid.
• Presumption that online proceedings and
virtual courts would grant wider access to
justice.
• Statistics show that 72% of the population
does not have access to internet and the
internet connections are unevenly distributed.
N S Nappinai© (except images) N S Nappinai© (except images)Court
• Section 3 of Evidence Act:
'Court' includes all Judges and Magistrates and all
persons, except arbitrators, legally authorized to
take evidence.
• Section 20 of Indian Penal Code:
The words "Court of Justice" denote a Judge who is
empowered by law to act judicially alone, or a body
of Judges which is empowered by law to act
judicially as a body, when such Judge or body of
Judges is acting judicially
N S Nappinai© (except images) N S Nappinai© (except images)The open court principle
• Justice should not only be done but should also
be seen to be done.
• Presumption that the public (including media)
has free and fair access to court proceedings.
• Has its foundation in freedom of speech and
expression and freedom of the press.
• Principle seeks to protect a wide scope of
activities that enable the public to attend court
proceedings as a spectator, a reporter or a
partaker.
N S Nappinai© (except images)
N S Nappinai© (except images)Open Court in India Law
• Article 145(4) of the Constitution of India
No judgment shall be delivered by the Supreme Court save in open
Court, and no report shall be made under Article 143 save in
accordance with an opinion also delivered in open Court
• S. 327 of the Code of Criminal Procedure
The place in which any Criminal Court is held for the purpose of
inquiring into or trying any offence shall be deemed to be an open
Court, to which the public generally may have access, so far as the
same can conveniently contain them
• S. 153 B Code of Civil Procedure
The place in which any Civil Court is held for the purpose of trying any
suit shall be deemed to be an open Court, to which the public
generally may have access so far as the same can conveniently
contain them
N S Nappinai© (except images)
N S Nappinai© (except images)Naresh Shridhar Mirajkar Vs. State Of
Maharashtra (1966 SCR (3) 744)
Supreme Court
“It is well-settled that in general, all cases brought before the Courts,
whether civil, criminal, or others, must be heard in open Court. 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. 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 court-room.”
N S Nappinai© (except images) N S Nappinai© (except images)• Jurisdiction of Family Courts and Need for
using Technology
N S Nappinai© (except images)• Domestic violence spikes during lockdown
N S Nappinai© (except images)COVID Enabled Remedies to Continue
and Evolve?
• Locked down with your tormentor?
• Plight of women and child victims!
• Absence of connectivity & smart phones – same
reason for not adapting technology are the
reasons many victims are unable to come
forward.
• Some solutions:
• Domestic Conflict Resolution Centres (DCRC)for
women, children and differently abled - set up
under district police chiefs;
N S Nappinai© (except images)Family Courts & DV Act
• Prevention of Domestic Violence Act, 2005: S.26:
Relief in other suits and legal proceedings.—
(1) Any relief available under sections 18, 19, 20,
21 and 22 (protection; residence; monetary;
custody; & Compensation) may also be sought in
any legal proceeding, before a civil court, family
court or a criminal court, affecting the aggrieved
person and the respondent whether such
proceeding was initiated before or after the
commencement of this Act.
N S Nappinai© (except images)• COVID19 Driven Directions
N S Nappinai© (except images)Virtual Courts in India
• High Courts of Bombay and Karnataka issued
notifications adopting virtual courts using video
conferencing facilities on March 17 and 21,
2020.
• Supreme Court, through its Secretary General
Sanjeev Kalgaonkar notified the use of “Vidyo”
app for facilitating hearings through video-
conferencing on March 23, 2020.
N S Nappinai© (except images)
N S Nappinai© (except images)Covid-19 pandemic,
In re, 2020 SCC OnLine SC 355
Supreme Court Directions dated 06.04.2020:
• Supreme Court and High Courts to function through
use of video conferencing technologies.
• District Courts to adopt video conferencing prescribed
by concerned High Courts.
• Duly notify and make available facilities for video
conferencing for litigants without access to video-
conferencing facilities. Courts to appoint amicus-curiae
if necessary and make video-conferencing facilities
available to the advocate.
• No evidence to be recorded through video-
conferencing without the mutual consent of parties.
N S Nappinai© (except images) N S Nappinai© (except images)Supreme Court of India on Virtual
Courts
• Recognized the significant role played by the new-age Virtual Court
Room System during the COVID-19 pandemic.
• Practice of holding Court hearings through video-conferencing
mode not against the concept of “open court hearing”.
• If the mandates of an ‘Open Court’ system could be secured and
ensured through virtual presence and communication, the
functionality of a Virtual Court cannot be said to lacking adherence
to the concept of Open Court hearing.
• Proceedings before the virtual courts of the Supreme Court of India
are open in every sense, both physically and virtually, except that
they do not require the physical presence of all parties/
counsels/media-persons at the same time under the same roof, in a
Court-room before the Bench.
N S Nappinai© (except images)
N S Nappinai© (except images)Supreme Court on virtual courts
“Justice delivery, even at the door-steps of the
stakeholders, requires the stakeholders of the
ecosystem to diligently discharge their role and
duties, prescribed and required in the scheme of
things. The advantages of the Virtual Court
System, especially in terms of time, energy and
money saved by the litigants and Counsels in
ensuring their presence before a Court are
innumerable and could be game-changers too”.
N S Nappinai© (except images)
N S Nappinai© (except images)• Consent For VC
N S Nappinai© (except images)Santhini v. Vijaya Venketesh, (2018) 1
SCC 1
Supreme Court
• Conducting proceedings under the Family Courts Act
through video conferencing upon the request made by
only one party was held to be impermissible.
• Video conferencing that takes place without the
consent of the other party would be contrary to the
provisions of the Act.
• Dissenting opinion by J. Chandrachud- that video
conferencing would not be contrary to the
requirements of in-camera proceedings even if one of
the parties desired it.
N S Nappinai© (except images)
N S Nappinai© (except images)Challenge 2 - Demeanour of
witnesses and false evidence
• Physical presence in court serves important expressive
functions helping with discovery of truth.
• Evidence recorded using video-conferencing may
distort non-verbal cues like facial expressions, postures
and gestures.
• These are issues that can arise with delay in streaming.
• Witness or litigant is testifying from a comfortable
environment, and face little to no tension when it
comes to the recording testimony. This may increase
their freedom to feel like testifying falsely.
N S Nappinai© (except images) N S Nappinai© (except images)• Physical Presence in Court
N S Nappinai© (except images)State of Maharashtra Vs. Dr. Praful B.
Desai (2003) 4 SCC 601
Supreme Court
• Whether evidence can be recorded by video-
conferencing?
• Held: Yes. ‘Presence' in Section 273 of the Criminal
Procedure Code is not actual physical presence. Under
Section 3 of Evidence Act, evidence, even in criminal
matters, can also be by way of electronic records and
this would include video-conferencing.
• Recording of evidence by video-conferencing is valid in
law.
N S Nappinai© (exceptN
images)
S Nappinai© (except images)Challenge 3 – Conduct of Witnesses
Witness can easily refresh their memory
• Under S. 159 of the Indian Evidence Act, a
witness can refresh their memory regarding a
writing that concerns them during the time of
examination after taking the permission of the
Court.
• During live streaming or video-conferencing,
witnesses could be answering questions with
material placed in front of them, which
defeats the purpose of the examination
N S Nappinai© (except images) N S Nappinai© (except images)Satish Shrikrishna Kamath vs Shri
Dilip Ramaraya Bhandarkar
Writ Petition NO. 7176 OF 2018
(Order dated 01.02.2019)
Bombay High Court
• Defendant contests order allowing video
conferencing for recording evidence, as plaintiff
visited India and should have therefore been
available for cross-examination in person.
• The Bombay High Court upheld VC evidence
recording but directed lower courts to take
adequate precautions while recording evidence
through video-conferencing.
N S Nappinai© (except images) N S Nappinai© (except images)Challenge 4 – Identity of Parties
Threat of identity theft
• For hearings in court in person, it is difficult to
assume another identity.
• Lack of human supervision online would make
many litigants question or have lack of
confidence in the system
N S Nappinai© (except images) N S Nappinai© (except images)Sujoy Mitra Vs. State of W.B.
(2015) 16 SCC 615
Supreme Court
• The Supreme Court ordered for video-
conferencing facilities to be set-up in the trial
that are synchronized with the facilities in the
Indian Embassy in Dublin, Ireland, for the
recording of testimony of the witness and laid
down guidelines and conditions for its
admissibility.
N S Nappinai© (except images) N S Nappinai© (except images)Bodala Murali Krishan Vs. Bodala
Prathima - 2006 SCC OnLine AP 874
Andhra High Court
• The court held that recording of evidence
through video conferencing is permissible in law,
provided that necessary precautions are taken,
both as to the identity of the witnesses and
accuracy of the equipment used for the purpose.
• The court also stated that the cost shall be borne
by the party who intends to avail such facility.
N S Nappinai© (except images)
N S Nappinai© (except images)• Ensuring Authenticity & Integrity – Handling
demeanor, conduct, integrity
N S Nappinai© (except images)Salem Advocate Bar Assn. v. Union of
India, (2003) 1 SCC 49
Supreme Court
• Order 18 Rule 4(3) of CPC provides that the
evidence may be recorded either in writing or
mechanically in the presence of the Judge or
the Commissioner.
• Use of the word “mechanically” indicates that
the evidence can be recorded even with the
help of the electronic media, audio or audio-
visual.
N S Nappinai© (except images) N S Nappinai© (except images)Twentieth Century Fox Vs. NRI Films
2003 SCC OnLine Kar 22
Karnataka High Court
• The court referred to Order 18, Rule 3(4)(3) of the CPC,
1908 which provides for recording evidence either by
writing or mechanically in the presence of a Judge.
• Audio-Video Link is a mechanical process where the
party is present on the screen and there is a
mechanical divisor recording the evidence. Therefore,
the court allowed cross-examination and collection of
evidence through video-conferencing
N S Nappinai© (except images) N S Nappinai© (except images)Upasana Bali Vs. State of Jharkhand
LQ 2012 HC 28607
Jharkhand High Court
• The court allowed application for registration
of marriage to be submitted by parties to
marriage through a power of attorney and
stated that physical presence of parties could
be secured through video conferencing.
N S Nappinai© (except images)
N S Nappinai© (except images)• Old Techniques for New Technology?
N S Nappinai© (except images)Challenge 5 – Recording of Evidence
• Challenges in recording of evidence:
• Recording & ensuring integrity – of statements
& witnesses;
• Of procedures involved in recording evidence
including signatures & authenticity thereof;
• Ensuring that access to public is not misused;
• Ensuring protection of judicial responsibility
and liability – S.121 Indian Evidence Act, 1872
– Gold Fish Bowl Syndrome;
N S Nappinai© (except images)Application of Indian Evidence Act,
1872
• FAMILY COURTS ACT, 1984: S.14:
• Family Court may receive as evidence
– any report, statement, documents, information or
matter;
– To assist deal effectually with a dispute;
– whether or not the same would be otherwise
relevant or admissible under the Indian Evidence
Act, 1872
N S Nappinai© (except images)Surender Singh Vs NCT
2014 SCC OnLine Del 2057
Delhi High Court
• The Court gave directions to subordinate
criminal courts about the method to record
evidence which is in electronic form, including
evidence recorded through video conference
and statements of parties under 313 of the
Code of Criminal Procedure.
N S Nappinai© (except images) N S Nappinai© (except images)V. Srivatsan Vs. S.R. Gayathri (2017
SCC OnLine Mad 5585)
Madras High Court
• Whether the examination of a person using
video-conferencing is evidence and whether it
can be used by courts in matrimonial cases?
• The court held video-conferencing can be
used.
N S Nappinai© (except images)Asha Ranjan v. State of Bihar, (2017) 4
SCC 397
Supreme Court
• Whether the Supreme Court can direct the transfer of
an accused from one State to another and conducting
of pending trials by way of video conferencing under
the exercise of power under Art. 32 and Art. 142 of the
Constitution?
• As the recording of evidence has been held to be valid
in law, the Supreme Court directed that the accused be
handed over to the respective Jail authority and shall
make all essential arrangements so that the accused
and the witnesses would be available for the purpose
of trial through video conferencing.
N S Nappinai© (except images) N S Nappinai© (except images)• More Challenges - Security
N S Nappinai© (except images)Security Through Technology
• Authenticity of electronic data – use of verification
through Secure / electronic signature, hash value
check;
• Blockchain can be a solution but will have to evolve;
• Fixed and tamperproof technical means may be
adapted;
• Electronic forensic evidence platform certification;
• Authenticity when challenged, the parties themselves
or the court Suo Motu may get the data verified by an
expert.
N S Nappinai© (except images)Learnings From China
• Identity verification using online methods;
• Creation and registration of a verified account – either
through physical verification or through online process.
use of Alipay concept however has its loopholes;
• Filing of pleadings & Evidence; Service of process; Pre-
trial mediation Hearing of Court Proceedings via live
streaming by a verification process on the webpage;
• Hearing, documents, evidence to be accessible from
across the country and to be securely stored through
encryption on a server;
N S Nappinai© (except images)Online Arbitration Illustration
• Nanjing Arbitration Commission in China –
Internet Arbitration Platform:
• Used for storing electronic data, together with
financial institutes and arbitration authorities
through applying the blockchain technology;
• To achieve real time preservation, electronic
delivery, trial and arbitration of disputes.
N S Nappinai© (except images)• Future Course – Keeping the Individual IN
Focus
N S Nappinai© (except images)State of Punjab Vs. Mohinder Singh
(2013 (4) PLR 728)
Punjab & Haryana High Court
• The court in this case gave necessary
guidelines to facilitate the recording of
evidence of the Medical Experts through
Video Conferencing, so that the Medical
Experts are able to devote their time in the
hospitals in attending patients rather than
commuting to Court for recording of their
evidence.
N S Nappinai© (except images) N S Nappinai© (except images)What Can & Cannot Be Done – NOW
& LATER – India
• Shops to ecommerce transformations – Not really the same
situation for Courts. Yet it gives a head start / guidance;
• Use technologies & learnings from E – Courts
• Develop processes for end – to – end proceedings through
online means:
• From filing, verification, hearings of interim applications;
testimony in proceedings; pronouncement of judgments;
delivery of authenticated orders / judgments;
• V Courts can actually become the new norm – to provide
efficient, speedy and cost friendly process;
• Access: Provide alternatives to those who may not have
internet connections.
N S Nappinai© (except images)• A Philosophical Twist – Advaitic Monism –
Real v. Maya:
• Is there really cause to resist change? Or is
Maya driving resistance?
• “Change the way you look at things and the
things you look at will also change” – J.
Ravindra Bhat (2020)
N S Nappinai© (except images)THANK YOU
N S NAPPINAI
ADVOCATE & FOUNDER – CYBER
SAATHI (CYBERSAATHI.ORG)
&
AUTHOR - “TECHNOLOGY LAWS
DECODED”
nappinai@nappinai.com; nappinai@gmail.com;
# +91-22 – 66330545; +91-22-66352604;
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