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Online Dispute Resolution: Is this a game changing moment for Indian justice delivery system?

By: Aanal Desai

The spread of Covid-19 and the nationwide lockdown has prompted the Supreme Court of India (“Supreme Court”) and various High Courts to conduct judicial proceedings online. The Supreme Court has detailed certain measures to ensure continuity in the administration of justice during the COVID-19 pandemic.

Virtual Courts – A step towards modernization:

Apart from the higher judiciary, even the subordinate courts and quasi-judicial bodies have been conducting hearings online. The steps taken by the Supreme Court include introducing e-filings and launching of a desktop and mobile application called “Vidyo”, which is used for video conferencing of hearings.

Advantages and Disadvantages of Virtual Courts:

  1. Advantages:

  2. Technology will enhance efficiency and reduce costs. It will help in eliminating expenses on infrastructure, staff, security, etc. Parties involved in the cases will not be required to come to court in-person, which reduces the travel time, saves costs and bridges the geographical gap.

  3. Digitization of the judiciary will bring accountability and better administration in the working of the judicial system.

  4. One of the biggest advantages will be the flexibility to the court for working longer hours, thus helping to clear the huge backlog of cases pending in the courts. It will lead to resolution of cases in a time bound manner.

  5. Disadvantages: While the measures undertaken by higher judiciary are laudable, they are not sufficient for the following reasons:

  6. The courts lack basic infrastructure for virtual hearing on a daily basis.

  7. There are 24 High Courts, more than 600 District courts and other subordinate judicial institutions in India. The cost of setting up and installing essential infrastructure for virtual hearings will require huge investments.

  8. The online facility is available to only certain privileged and technology-aware class of lawyers, and is not accessible to the poor.

  9. There is an unpredictability surrounding the question as to whether technology can handle the wide range and complexity of cases.

  10. Virtual courts may create difficulties for the advocate, arbitrator and mediator and conciliator in building rapport with the litigants.

  11. There are some drawbacks involved in not appearing in person such as less engagement with or strategic discussions on, issues. The Advocates will find it difficult to read the body language of the Judges and vice versa.

  12. Lack of public access to the proceedings is turning out to be a major concern as well, with access available only to the privileged and tech-savvy sections of the society.

Threat to Privacy and Data Confidentiality:

While video conferencing for hearings has been going well thus far, there have been some complaints from lawyers on technical glitches.

Apart from using Vidyo, the Courts are open to using third party applications such as Whatsapp, Skype, Zoom etc. This is a cause for concern with respect to privacy and confidentiality.

Whilst Whatsapp has implemented end-to-end encryption, a definite security upside, there are many other security concerns. One of the primary issues is that it is owned by Facebook, and suffers many of the same privacy dangers and misinformation campaigns as its parent company.

On the other hand, Skype does not use end-to-end encryption at all. That means every message, call, and file can be easily viewed by Microsoft. Any voice, video, text, and files sent between Skype users are encrypted, but only between user’s device and Microsoft’s servers. However, that data is decrypted once it reaches the server allowing Microsoft to snoop, if it so pleases.

Pertinently, the Ministry of Home Affairs (“MHA”) has issued an advisory against using the ‘Zoom’ app by private individuals and government officials. The main concern appears to be the unauthorized entry into a Zoom Conference Room and malicious attacks on the terminals of other users in the conference. The MHA feels that the app may give cyber criminals an opportunity to access meeting details, conversations and other information. Subsequent to this advisory, the Bombay High Court decided to use Vidyo software instead of Zoom.

Conclusion:

Virtual hearings could be a real game changer for our courts that have always been traditional and slow to embrace change. This initiative is commendable and has been welcomed by all stakeholders of the justice delivery system.

If the idea is to use technology even after the lockdown ends, significant investment will have to be made in IT infrastructure and in training the judges, lawyers, court clerks and litigants. There must be a clear classification of cases that can be resolved in the virtual space. The records of on-going cases will have to be digitised. The current case-management systems will need to be modified or replaced for remote access and for efficient functioning of the virtual courts. All of these measures will involve copious amount of time, good money and generous support from the government.

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