The Impact of Video Proceedings On Fairness and Access To Justice in Court During Covid 19

International Journal of Trend in Scientific Research and Development (IJTSRD)
Volume 6 Issue 1, November-December 2021 Available Online: www.ijtsrd.com e-ISSN: 2456 – 6470
The Impact of Video Proceedings on Fairness and

Access to Justice in Court during Covid-19
Dr. S. Krishnan1, Ms Garima Dhaka2
1
Associate Professor, Seedling School of Law and Governance, Jaipur National University, Jaipur, Rajasthan, India
2
Assistant Professor, School of Law, Vivekananda Global University, Jaipur, Rajasthan, India
ABSTRACT How to cite this paper: Dr. S. Krishnan |

Video recording of the proceedings would undoubtedly benefit in Ms Garima Dhaka "The Impact of Video
increasing the transparency in the judicial system. It would also Proceedings on Fairness and Access to
support in strengthening the pillars of faith and confidence among the Justice in Court during Covid-19"
Published in
citizens in the country combating for their rights. Live recording of
International
the entire scenario of the court-room would also curtail the risk of
Journal of Trend in
disputes occurring on the various grounds which may be raised by the Scientific Research
parties like, during their absence some contentions or facts might not and Development
have been taken into proper consideration by the judge while hearing (ijtsrd), ISSN: 2456-
the matter and the order was passed or the advocate would have 6470, Volume-6 | IJTSRD48030
represented the case in an inappropriate manger. Issue-1, December
2021, pp.1265-1279, URL:
KEYWORDS: E-Courts, Video proceedings, justice, Fundamental www.ijtsrd.com/papers/ijtsrd48030.pdf
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INTRODUCTION
The Covid-19 pandemic has disrupted court the current moment, several court leaders have also
operations across the world, prompting judges to suggested that expanded use of remote technology
postpone nonessential proceedings and conduct others should become a permanent feature of our justice
through video or phone. Even as courts have begun to system.4 4
reopen, many are also continuing or testing new ways Remote technology has been a vital tool for courts in
to expand the use of remote technology.2 2 At the the midst of a public health crisis. But the use of
same time, public health concerns are leading some
remote technology — and its possible expansion —
legal services providers and other advocates to
also raises critical questions about how litigants’
oppose the return to in-person proceedings.3 Beyond
rights and their access to justice may be impacted,
2
Daniel Siegel, “Miami, Orlando Headline Fla. Courts'
Remote Trial Experiment,” Law360, June 4,
2020, https://www.law360.com/articles/1279653/miami- advocates-20200708-42rpmgyhyjc2jphrqohwdsyy6q-
orlando-headline-fla-courts-remote-trial-experiment.; and story.html.
4
Jake Bleiberg, “Texas Court Holds First US Jury Trial via Lyle Moran, “How Hosting a National Pandemic Summit
Videoconferencing,” Associated Press, May 22, Aided the Nebraska Courts System with its Covid-10
2020, https://abcnews.go.com/Health/wireStory/texas- Response,” Legal Rebels Podcast, May 13,
court-holds-us-jury-trial-videoconferencing-70825080. 2020, https://www.abajournal.com/legalrebels/article/rebel
3
Rocco Parascandola and Molly Crane-Newman, s_podcast_episode_052.; and Katelyn Kivel, “How the
“Lawyers Fear Sudden Return to NYC Courthouses Next Coronavirus Revolutionized Michigan’s Courts,” The
Week will Spread Coronavirus,” Daily News, July 8, Gander Newsroom, July 14,
2020, https://www.nydailynews.com/new-york/nyc- 2020, https://gandernewsroom.com/2020/07/14/coronaviru
crime/ny-courts-reopening-early-outrage-lawyers- s-revolutionized-courts/.
@ IJTSRD | Unique Paper ID – IJTSRD48030 | Volume – 6 | Issue – 1 | Nov-Dec 2021 Page 1265
International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470
either positively or negatively, and what courts and In three out of six surveyed immigration courts,
other stakeholders can do to mitigate any harms. judges identified instances where they had
This paper collects and summarizes existing changed credibility assessments made during a
video hearing after holding an in-person hearing.9
scholarship on the effects of video technology in
court proceedings. Federal courts, immigration courts, Research also suggests that the use of remote video
and state courts have long used video technology for proceedings can make attorney-client
certain kinds of proceedings.55While the available communications more difficult. For example, a 2010
scholarship on the use of video proceedings is survey by the National Center for State Courts found
limited, existing research suggests reason for caution that 37 percent of courts using videoconferencing had
in expanding the use of these practices, as well as the no provisions to enable private communications
need for further research on their potential effects. between attorneys and their clients when they were in
separate locations.10 Remote proceedings can likewise
For Example:
One study of criminal bail hearings found that make it harder for self-represented litigants to obtain
defendants whose hearings were conducted over representation and other forms of support by
video had substantially higher bond amounts set separating them from the physical courthouse. A
than their in-person counterparts, with increases study of immigration hearings found that detained
ranging from 54 to 90 percent, depending on the immigrants who appeared in person were 35 percent
more likely to obtain counsel than those who
offense.6
appeared remotely.11
A study of immigration courts found that detained
At the same time, other research suggests that remote
individuals were more likely to be deported when
video proceedings may also enhance access to justice
their hearings occurred over video conference
under some circumstances. For example, a Montana
rather than in person.7
study found that the use of video hearings allowed
Several studies of remote witness testimony by legal aid organizations to reach previously
children found that the children were perceived as underserved parts of the state.12
less accurate, believable, consistent, and confident
when appearing over video.8 Organizations such as the Conference of Chief
Justices have called for the expanded use of video or
telephone proceedings in civil cases, particularly for
5
Shari Seidman Diamond et al., “Efficiency and Cost: The self-represented and low-income litigants, as a way of
Impact of Video-conferenced Hearings on Bail Decisions,” reducing costs for those who, for example, may need
Journal of Criminal Law and Criminology 100 (2010): to take time off work to travel to court.13 13
877-878, 900; Ingrid V. Eagly, “Remote Adjudication in
Immigration,” Northwestern University Law Review 109
(2015): 934; and Mike L. Bridenback, Study of State Trial hearing. Also worth noting is that the judge, bailiff, and
Courts Use of Remote Technology, National Association attorneys questioning the children were in the room with
for Presiding Judges and Court Executive Officers, 2016, the children testifying; the children only appeared by
12, http://napco4courtleaders.org/wp- CCTV to the mock jurors.
9
content/uploads/2016/08/Emerging-Court-Technologies-9- Government Accountability Office, Actions Needed to
27-Bridenback.pdf. Reduce Case Backlog and Address Long-Standing
6
Shari Seidman Diamond et al., “Efficiency and Cost: The Management and Operational Challenges, 2017,
Impact of Videoconferenced Hearings on Bail Decisions,” 55, https://www.gao.gov/assets/690/685022.pdf.
10
Journal of Criminal Law and Criminology 100 (2010): Eric Bellone, “Private Attorney- Client Communications
893. and the Effect of Videoconferencing in the Courtroom,”
7
Ingrid V. Eagly, “Remote Adjudication in Immigration,” Journal of International Commercial Law and Technology
Northwestern University Law Review 109 (2015): 966; 8 (2013): 44-45.
11
and Frank M. Walsh and Edward M. Walsh, "Effective Ingrid V. Eagly, “Remote Adjudication in Immigration,”
Processing or Assembly-Line Justice - The Use of Northwestern University Law Review 109 (2015): 938.
12
Videoconferenceing in Asylum Removal Hearings," Richard Zorza, Video Conferencing for Access to
Georgetown Immigration Law Journal 22 (2008): 271-72. Justice: An Evaluation of the Montana Experiment, Legal
8
Holly K. Orcutt et al., “Detecting Deception in Services Corporation, 2007, 1,
Children’s Testimony: Factfinders’ Abilities to Reach the 3, https://docplayer.net/3126017-Video-conferencing-for-
Truth in Open Court and Closed-Circuit Trials,” Law and access-to-justice-an-evaluation-of-the-montana-
Human Behavior 25 (2001): 357-8, 366. However, it is experiment-final-report.html.
13
important to note that these studies are simulated National Center for State Courts, Call to Action:
experiments and not observations of actual court Achieving Civil Justice for All, 2016, 37-
proceedings, so outcomes might have differed if video 38 https://iaals.du.edu/publications/call-action-achieving-
proceedings were used and examined in an actual court civil-justice-all.
One challenge in interpreting this research is that significant changes in bond amounts for those cases
court systems hear a wide range of cases, both civil that continued to have live bail hearings.15 These
and criminal, and the use of videoconferencing may disparities persisted over time. The release of this
pose widely disparate challenges and benefits for study, which was prepared in connection with a class
litigants in different types of cases. Courts are action lawsuit challenging Cook County’s practices,
involved in adjudicating everything from evictions to caused the county to voluntarily return to live bail
traffic violations, from multimillion-dollar hearings.16
commercial disputes to felony cases. In some
The authors theorized several explanations for the
instances, litigants are detained in jails or detention
difference in bond amounts in Cook County. Among
centers. In others, they may be self-represented.
other things, they pointed to the picture quality and
Courts hold preliminary hearings, arraignments,
the video setup, which gave the appearance that the
settlement negotiations, scheduling conferences,
defendant was not making eye contact. In addition,
arguments on legal motions, jury trials, and much
they suggested that the defendant’s remote location
more.
made it difficult for their attorney to gather
At its core, this review of existing scholarship information in advance of the hearing or consult with
underscores the need for broad stakeholder their client during the hearing. The authors also
engagement in developing court policies involving pointed out that the video was in black and white, and
remote proceedings, as well as the need for more that litigants with darker skin were difficult to see on
research and evaluation as courts experiment with camera. Finally, they raised the question of whether
different systems. some aspect of appearing in person affects a person’s
believability.17 17
Impact of Video Proceedings on Case Outcomes
A handful of studies have directly assessed whether Another study by law professor Ingrid Eagly looked
replacing certain in-person proceedings with at the use of video technology to adjudicate
videoconferences impacted substantive outcomes in immigration proceedings remotely, finding that
criminal, civil, or immigration proceedings. Several detained respondents were more likely to be deported
other studies have sought to evaluate the impact of when their proceedings occurred over
using video on factors that are likely to affect videoconference.18 Video hearings are now a
substantive outcomes, such as credibility assessments common feature in immigration court, and have been
by juries or other factfinders, and communication used regularly since the 1990s.19 The use of
between attorneys and their clients.
Video Proceedings and Substantive Outcomes 15
Ibid, 896.
One study by law and psychology professor Shari 16
Ibid, 870.
Seidman Diamond and coauthors, published in 17
Ibid, 884-85, 898-900.
the Journal of Criminal Law and Criminology, 18
An earlier analysis by Frank and Edward Walsh in the
looked at the impact of using closed-circuit television Georgetown Immigration Law Journal likewise found
during bail hearings in Cook County, Illinois. The disparities in outcomes in asylum cases. The study, which
study found that judges imposed substantially higher looked at fiscal years 2005 and 2006, found that “the grant
bond amounts when proceedings occurred over rate for asylum applicants whose cases were held in person
video.144 is roughly double the grant rate for the applicants whose
cases were heard via [video].” Walsh and Walsh,
In 1999, Cook County began using closed-circuit “Effective Processing,” 271. These differences were
television for most felony cases, requiring defendants statistically significant, and the authors found similar and
to remain at a remote location during bail hearings. A statistically significant differences when controlling for
2008 analysis of over 645,000 felony bond whether the applicant was represented by counsel.
proceedings held between January 1, 1991 and However, according to Eagly, most immigration hearings
December 31, 2007 found that after the closed-circuit were not coded for whether they were conducted in person
television procedure was introduced, the average or by video prior to 2007, undercutting the reliability of
bond amount for impacted cases rose by 51 percent the findings. Eagly, 946. Nor did the study identify the
— and increased by as much as 90 percent for some basis by which some asylum applicants were designated
for video conference, suggesting the possibility of
offenses. By contrast, there were no statistically
confounding variables. Nevertheless, the striking
difference in asylum rates highlights the need for further
14
Shari Seidman Diamond et al., “Efficiency and Cost: research.
19
The Impact of Videoconferenced Hearings on Bail “Video Hearings in Immigration Court FOIA,”
Decisions,” Journal of Criminal Law and Criminology 100 American Immigration Council, last modified August 11,
(2010): 897. 2016, accessed October 14,
videoconferencing, even without the petitioner’s “[t]elevideo must therefore be understood as having
consent, is specifically authorized by an indirect relationship to overall substantive case
statute.20 According to the Transactional Records outcomes—one linked to the disengagement of
Access Clearinghouse Immigration Center at respondents who are separated from the traditional
Syracuse University, from October through December courtroom setting.”26 26
2019, one out of every six final hearings deciding an
Eagly relied on interviews and court observations to
immigrant’s case was held by video.21 Eagly explore why video proceedings led to less
examined outcomes for detained immigrants in
engagement by respondents. She suggested that
immigration court, comparing those who participated respondents may have been less likely to participate
via video to those who participated in person.22 Eagly
fully in video proceedings due to logistical hurdles
used a nationwide sample of nearly 154,000 cases, in
requiring advanced preparation, such as the need to
which immigration judges reached a decision on the
mail an application for relief in advance of the
merits during fiscal years 2011 and 2012.23
hearing, rather than bringing one to court and
Eagly found what she described as a “paradox”: physically handing over a copy. She also highlighted
detained immigrants whose proceedings occurred the difficulties that video proceedings pose in
over video were more likely to be deported, allowing individuals to communicate effectively and
but not because judges denied their claims at higher confidentially with their attorney. Finally, she found
rates. Rather, these respondents were less likely to that respondents often found it difficult to understand
take advantage of procedures that might help them. what was happening during video proceedings, and
Detained individuals who appeared in person were 90 that many perceived a video appearance as unfair and
percent more likely to apply for relief, 35 percent not a real “day in court,” an assertion which has also
more likely to obtain counsel, and 6 percent more been made by the American Bar Association
likely to apply only for voluntary departure, as Commission on Immigration.27 27
compared to similarly situated individuals who A few studies have also examined the impact of video
appeared by video. These results were statistically testimony on jury trials, with mixed results. One
significant, even when controlling for other factors study by psychology professor Holly Orcutt and
that could influence case outcomes.24 24 coauthors examined the impact of remote testimony
At the same time, among those individuals who by children in sexual abuse cases. The authors created
actually applied for various forms of relief, there was a simulation involving a fake crime with children and
no statistically significant difference in outcome after an adult actor. The children then testified on their
controlling for other factors. However, because video experiences within the experiment during a mock
participants were less likely to seek relief or retain trial, using actors and mock jurors.28 The child
counsel, video cases were still significantly more
likely to end in removal.25 Eagly argued that
percent of televideo respondents. In the Active Base City
Sample, 83 percent of in-person respondents were ordered
2021, https://www.americanimmigrationcouncil.org/conte removed, compared to 88 percent of televideo
nt/video-hearings-immigration-court-foia. respondents.” The disparities in outcomes were
20
See 8 U.S.C. § 1229a(b)(2)(A)(iii); see also 8 C.F.R. § statistically significant. Eagly, “Remote Adjudication,”
1003.25(c) (“An Immigration Judge may conduct hearings 966.
26
through video conference to the same extent as he or she Eagly, “Remote Adjudication,” 938.
27
may conduct hearings in person.”). Eagly, “Remote Adjudication,” 978, 984, 989. A 2019
21
TRAC Immigration, “Use of Video in Place of In- report from the American Bar Association, which issued
Person Immigration Court Hearings,” January 28, recommendations for reforming the immigration system,
2020, https://trac.syr.edu/immigration/reports/593/. argued that based on its 2010 findings, the use of video
22
Ingrid V. Eagly, “Remote Adjudication in Immigration,” conferencing technology can undermine the fairness of
Northwestern University Law Review 109 (2015): 933 proceedings by making it more difficult to establish
23
Ibid, 960. credibility and thus argue one’s case. The report goes on to
24
Among other things, Eagly controlled for the type of suggest limiting the use of video to nonsubstantive
proceeding and charge, the respondent’s nationality, hearings. See American Bar Association Commission on
whether they are represented by counsel, their judge, and Immigration, 2019 Update Report: Reforming the
the year the proceedings took place. Eagly, “Remote Immigration System, 2019,
Adjudication,” 938. 18, https://www.americanbar.org/content/dam/aba/publicat
25
Eagly looked at two samples, a national sample and a ions/commission_on_immigration/2019_reforming_the_i
subset of locations that she called the Active Base Sample. mmigration_system
28
She found that “in the National Sample, 80 percent of in- Some children experienced the fake crime and some did
person respondents were ordered removed, compared to 83 not. In addition, some children were asked to modify their
witnesses testified either in person or via one-way studies did not address the use of remote jurors, or
closed-circuit television.29 29 jurors who interacted with each other over video.34
Orcutt found that when children testified via closed- Also relevant is that the technologies available to
conduct remote proceedings today are vastly different
circuit television, the mock jurors rated them as less
honest, intelligent, and attractive, and concluded that than those used in studies in the 1970s and 80s.
Finally, another limitation of these studies is that they
their testimony was less accurate. Mock jurors were
also less likely to vote to convict the defendant do not address how less than ideal technological
conditions may impact court dynamics. For example,
(accused by the child witness), when the child
testified by closed-circuit television.30 Thus, closed- a study of immigration courts by Booz Allen
circuit testimony “appeared to result in a more Hamilton for the Department of Justice determined
negative view of child witnesses as well as a small that technological glitches had disrupted cases to such
but significant decrease in the likelihood of an extent that due process concerns may arise.35 35
conviction [of the defendant].”31 However, after Lastly, the Administrative Conference of the United
jurors deliberated, there was no statistically States has studied the use of video teleconferencing
significant impact of video versus live testimony on by federal executive agencies in administrative
the verdict.32 It is possible that study participants had hearings. According to an analysis by the Bureau of
a specific skepticism about remote testimony by Veteran Affairs, there was no evidence that video
children in abuse cases due to assumptions about why proceedings for veterans benefits adjudications had an
a child might not testify in person. However, this impact on outcomes: “the difference in grants [for
study also raises the possibility that remote witness veterans’ benefits claims] between video hearings and
testimony is generally less likely to be seen as in-person hearings has been within one percent” over
credible, disadvantaging litigants and raising fairness the five-year period preceding the 2011 report.36 The
concerns in cases where testimony is likely to be study also found that these hearings had increased
critical to a party’s case. productivity for Veterans Law Judges and supporting
On the other hand, a series of studies from the 1970s counsel by eliminating the need for travel to and from
and 1980s based on reenacted trials generally found hearings.
that videotaped trials had no impact on outcomes. For
example, in a reenacted trial involving an automobile
personal injury case, staffed by actors, there was no
statistically significant difference in the mean amount explanation for this difference could be the variations in
awarded by the jury, or in the jury’s retention of the communication skills of the two witnesses across
information, between the in-person and videotaped presentational modes.” Gerald R. Miller, Norman E.
trials.33 However, several caveats apply. First, these Fontes, and Gordon L. Dahnke, “Using Videotape in the
Courtroom: A Four-Year Test Pattern," University of
Detroit Journal of Urban Law 55 (Spring 1978): 668. See
testimony to falsely indicate that a crime had taken place. also Gerald R. Miller, Norman E. Fontes, and Arthur
Orcutt et al., “Detecting Deception in Children’s Konopka, The Effects of Videotaped Court Materials on
Testimony,” 343. Juror Response (East Lansing: Michigan State University
29
Orcutt et al., “Detecting Deception in Children’s Press, 1978).
34
Testimony,” 339-372. For additional research on simulated trials, see David F.
30
Ibid, 357, 367. Ross et al., “The Impact of Protective Shields and
31
Ibid, 366. Videotape Testimony on Conviction Rates in a Simulated
32
Ibid, 358. Trial of Child Sexual Abuse,” Law and Human Behavior,
33
Gerald Miller, “Televised Trials: How Do Juries React,” 18, (1994): 553-566; and Tania E. Eaton et al., “Child-
Judicature 58 (December 1974): 242-246. The jurors in Witness and Defendant Credibility: Child Evidence
Miller’s study thought they were rendering a verdict in an Presentation Mode and Judicial Instructions,” Journal of
actual trial. A similar study likewise found no statistically Applied Social Psychology, 31 (2001): 1845-1858.
significant difference in juror attributions of negligence or However, in these studies, mock jurors watched videotapes
the amount awarded by jurors in simulated video and in- of trials involving either live or videotaped testimony, so
person trials. The mode of presenting expert witnesses did their findings are of limited utility for comparing
affect pre-deliberation award, information retention, and videotaped and live trials.
35
source credibility, but not in a straightforward manner. Booz Allen Hamilton, Legal Case Study: Summary
The plaintiff's witness was more effective in obtaining Report, 2017, 23, https://perma.cc/B3VS-FQAY.
36
favorable awards when he appeared live, while the Funmi E. Olorunnipa, Agency Use of Video Hearings:
defendant's witness was more effective in reducing the Best Practices and Possibilities for Expansion,
award (advantaging the defendant) when he appeared on Administrative Conference of the United States, 2011, 24,
videotape. The study suggested that “The most plausible https://perma.cc/B3VS-FQAY.
Other Effects on Litigants respondent asylum. Another immigration judge
Video and Perceptions of Credibility reported being unable to identify a respondent’s
In addition to studies that directly assess the cognitive disability over [video teleconference], but
relationship between video proceedings and that the disability was clearly evident when the
outcomes, such as conviction or deportation rates, respondent appeared in person at a subsequent
other research has looked at whether video testimony hearing, which affected the judge’s interpretation of
by a witness has an impact on how they are perceived the respondent’s credibility."39
by fact finders. Because credibility determinations are Psychology research also provides theoretical support
often central to case outcomes, the effect of video for the concern that individuals who appear by video
appearance on credibility has important implications may face disadvantages. For example, psychology
for the overall fairness of remote proceedings.
professor Sara Landstrom, who studied video
In addition to the Orcutt study discussed previously, testimony by children, has described the “vividness
several other studies have looked at the impact of effect,” whereby testimony that is more emotionally
video testimony by children on their perceived interesting and proximate in a sensory, temporal, or
credibility in the context of sexual abuse cases, spatial way is generally perceived by observers as
finding that video testimony had an impact on jurors’ more credible and is better remembered. Landstrom
perceptions of the child’s believability. For example, notes, “it can be argued that live testimonies, due to
an analysis involving mock trials with actors where a face-to-face immediacy, are perceived [by jurors] as
child testified either in-person or via closed-circuit more vivid than, for example, video-based
television found that testimony over video lowered testimonies, and in-turn are perceived more
jurors’ perception of a child’s accuracy and favourably, considered more credible and are more
believability.37 Similarly, in a Swedish simulation memorable.”40
where different jurors watched the child testimony Similarly, drawing from communications and social
either live or via video, jurors perceived the live psychology research, law professor Anne Bowen
testimony in more positive terms and rated the Poulin argued, “[s]tudies reveal that people evaluate
children’s statements as more convincing than the those with whom they work face-to-face more
video testimony. Live observers also had a better
positively than those with whom they work over a
memory of the children’s statements.38 38
video connection. When decision makers interact
Other research suggests that technological limitations with the defendant through the barrier of technology,
may affect immigration judges’ ability to assess they are likely to be less sensitive to the impact of
credibility in video proceedings. For example, in a negative decisions on the defendant.”41 41
2017 U.S. Government Accountability Office report Technology choices may also have unintended
on immigration courts, judges in three of the six consequences. For example, research by G. Daniel
surveyed courts identified instances where they had Lassiter and coauthors have documented a camera
changed credibility assessments made during a video perspective bias in the context of videotaped
hearing after holding a subsequent in-person hearing:
confessions, finding that observers were more likely
"For example, one immigration judge described to believe a confession was voluntary when the
making the initial assessment to deny the camera was focused only on the defendant during a
respondent’s asylum application during a [video videotaped interrogation.42 Poulin has also noted that
teleconference] hearing in which it was difficult to space constraints may necessitate the use of close-up
understand the respondent due to the poor audio shots during some video hearings, which can
quality of the [video teleconference]. However, after
holding an in-person hearing with the respondent in 39
Government Accountability Office, Actions Needed to
which the audio and resulting interpretation Reduce Case Backlog, 55
challenges were resolved, the judge clarified the facts 40
Landstrom, “Children’s Live and Videotaped
of the case, and as a result, decided to grant the Testimonies,” 335. See also Richard E. Nisbett and Lee
Ross, L. Human Inference: Strategies and Shortcomings of
37
Gail S. Goodman et al., “Face-to-Face Confrontation: Social Judgment. (Englewood Cliffs, NJ: Prentice-Hall,
Effects of Closed-Circuit Technology on Children’s 1980).
41
Eyewitness Testimony and Jurors’ Decisions,” Law and Anne Bowen Poulin, “Criminal Justice and
Human Behavior 22 (1998): 195-96. Videoconferencing Technology: The Remote Defendant,”
38
Sara Landstrom, “Children’s Live and Videotaped Tulane Law Review 78 (2004): 1118.
42
Testimonies: How Presentation Mode Affects Observers’ G. Daniel Lassiter et al., “Videotaped Confessions:
Perception, Assessment and Memory,” Legal and Panacea or Pandora’s Box?” Law and Policy 28 (2006):
Criminological Psychology 12 (2007): 344-45. 195-201.
exaggerate features, obfuscate the perception of a negatively impacted by video hearings: defendants
person’s size and age, and obscure body language.43 with limited English proficiency, unrepresented
defendants, and children under 18.48 48
Effects on Attorney-Client Communications and
Relationship These findings were echoed in Florida’s experience
Another question raised by the use of video with remote video proceedings for juvenile detention
proceedings is whether they impact communication hearings. In 2001, the Florida Supreme Court
and other aspects of the relationship between repealed an interim rule that had been in effect from
attorneys and their clients, who are frequently 1999 through 2001 that authorized remote juvenile
separated during remote proceedings. For example, in hearings.494In repealing the rule, the Court detailed
a 2010 survey by the National Center for State public defenders’ concerns that “there was no proper
Courts, 37 percent of courts that used video opportunity for meaningful, private communications
proceedings reported that they had no provisions to between the child and the parents or guardians,
enable private communications between an attorney between the parents or guardians and the public
and client when they were in separate locations.44 defender at the detention center, and between a public
Poulin also noted that even when a secure phone line defender at the detention center and a public defender
for private attorney-client communication is provided, in the courtroom.”50 The court observed that “[a]t the
nonverbal communication is likely to be difficult, and conclusion of far too many hearings, the child had no
it may be hard for a client to catch their attorney’s comprehension as to what had occurred and was
attention with a question or to provide relevant forced to ask the public defender whether he or she
information.45 was being released or detained.”51 51
Similarly, Diamond’s Cook County study on the Additional Access to Justice Considerations
impact of video proceedings on bail observed that Another question raised by remote video proceedings
separating attorneys and clients made it harder for is how their use impacts the public’s access to justice
them to quickly confer during a bail hearing. She in civil cases, where there is generally no right to
noted that such a communication challenge could be counsel and where other safeguards for litigants are
consequential in a bail hearing: a defendant may be weaker than in criminal cases.
able to provide “mitigating details regarding past
Access to Counsel and Other Resources in Civil
convictions that will greatly assist counsel…
Cases
Obviously, such communications must occur One critical issue is the extent to which
immediately if counsel is to be able to make use of videoconferencing increases or diminishes burdens
his client’s information during a fast-paced bail for self-represented litigants in arenas like housing or
hearing.”46 family court. Understanding the relationship between
A study by the advocacy organization Transform video proceedings and access to justice can inform
Justice surveyed lawyers, magistrates, probation courts’ use of video both now and in the future, and
officers, intermediaries, and other officials about the help identify areas where courts should invest in
use of remote proceedings in the United Kingdom. additional resources or support for litigants.
Fifty-eight percent of respondents thought that video
The Conference of Chief Justices has encouraged
hearings had a negative impact on defendants’ ability
judges to “promote the use of remote audio and video
to participate in hearings, and 72 percent thought that
video hearings had a negative impact on defendants’ 48
ability to communicate with practitioners and Gibbs, Defendants on video, 10, 26.
49
judges.47 Survey respondents indicated that they Due to the Covid-19 pandemic, the Florida Supreme
Court temporarily authorized video proceedings for
believed the following groups were the most
juvenile delinquency proceedings (including juvenile
detention hearings). See Florida Supreme Court, “Chief
43
Poulin, “Criminal Justice and Videoconferencing,” Justice Issues Emergency Order Expanding Remote
1121-1122. Hearings and Suspending Jury Trials into Early July
44
Bellone, “Client Communications and the Effect of Statewide,” May 4,
Videoconferencing,” 44-45. 2020, https://www.floridasupremecourt.org/News-
45
Poulin, “Criminal Justice and Videoconferencing,” Media/Court-News/Chief-Justice-issues-emergency-order-
1130. expanding-remote-hearings-and-suspending-jury-trials-
46
Diamond et al., “Efficiency and Cost,” 881-882. into-early-July-statewide.
47 50
Penelope Gibbs, Defendants on video — conveyor belt Amendment to Fla. Rule of Juvenile Procedure
justice or a revolution in access?, Transform Justice, 2017, 8.100(A), 796 So. 2d 470, 473 (Fla. 2001).
51
16, http://www.transformjustice.org.uk/wp- Amendment to Fla. Rule of Juvenile Procedure
content/uploads/2017/10/TJ_Disconnected.pdf. 8.100(A), 796 So. 2d 470, 473 (Fla. 2001).
services for case hearings and case management the state in 2004.57 The study concluded that
meetings” in civil cases as part of a broader set of introducing video hearings means that “legal aid has a
reforms to promote access to justice.52 The presence in counties from which they would be absent
Conference cites, among other things, that video if video were not there as an option.”58 Video
proceedings can help mitigate the costs borne by proceedings also opened up greater opportunities for
litigants who might have to travel far distances or pro bono representation. The report endorsed the use
take time off from work to attend in-person court of the video technology in Montana, while urging
proceedings.53 Notably, the Conference of Chief caution in ensuring that the technology was “used
Justices’ proposal calls for combining video with sensitivity to overall access to justice goals,”
proceedings with enhanced services for self- including recognizing that there are cases that may
represented litigants, including internet portals and not be appropriate for video appearances, such as
stand-alone kiosks to facilitate access to court those involving lengthy proceedings.59 The study also
services, simplified court forms, and real-time court acknowledged that there are still unanswered
assistances services over the internet and phone. questions about how to properly cross-examine a
witness over video and that the potential issues with
A report by the Self-Represented Litigation Network
similarly observed that videoconferencing technology such examinations could be more significant when
dealing with an individual’s credibility or integrity.60
can reduce the time and expenses associated with
traveling, transportation, childcare, and other day-to- 60
day costs that individuals incur when they go to court. Beyond the use of videoconferencing, another study
The report also noted the potential costs of such looked at an online case resolution system for minor
technology, including the possibility that remote civil infractions and misdemeanors. This online
appearances may lessen the accuracy of factfinding system did not use video; rather, individuals had the
and reduce early opportunities to settle cases.54 54 option to use an online portal to communicate with
There is only limited research on the benefits and judges, prosecutors, and law enforcement at any time
harms of video proceedings with respect to access to of day. The study found that the system saved time,
the courts. Eagly’s study of immigration court significantly reduced case duration, and reduced
hearings found that detained immigrants who default rates (where individuals lose cases by not
appeared in person were 35 percent more likely to contesting their claims).61 The author highlighted the
costs associated with going to court for relatively
obtain counsel than those who appeared remotely,
low-stakes proceedings: “Physically going to court
highlighting the role that courthouses often play in
costs money, takes time, creates fear and confusion,
connecting self-represented individuals with
and presents both real and perceived risks.”62 To the
resources, including representation.55 55
extent that video proceedings may similarly reduce
On the other hand, a 2007 study on the use of some of the costs of going to the courthouse, this
videoconference technology in Montana, which study suggests that in lower-stakes proceedings, the
included interviews and court observations, found use of video can save time compared to attending in-
that the use of video court appearances in both civil person proceedings, and can enable more individuals
and criminal hearings enabled legal aid organizations to engage with the system rather than defaulting their
to serve previously underserved parts of the state.56
Montana, one of the largest and least populated states,
57
had only 84 lawyers in the entire eastern portion of Zorza, Video Conferencing for Access to Justice. For
context, the overall population in this 47,500 square mile
region was between 10 to 14 percent of the state’s total in
52
National Center for State Courts, Call to Action, 37. 2004. See Larry Swanson, “Montana is One State with
53
National Center for State Courts, Call to Action, 37-38. Three Changing Regions,” Belgrade News, February 28,
54
John Greacen, Remote Appearances of Parties, 2019, http://www.belgrade-
Attorneys, and Witnesses, Self-Represented Litigation news.com/news/feature/montana-is-one-state-with-three-
Network, 2017, 3-4; and see also Camille Gourdet et al., changing-regions/article_cc6ccb66-3b82-11e9-881c-
Court Appearances in Criminal Proceedings Through 8f20afd84778.html#:~:text=The%20Central%20Front%20
Telepresence: Identifying Research and Practice Needs to region%20has,of%20the%20total%20in%201990.
58
Preserve Fairness While Leveraging New Technology, Zorza, Video Conferencing for Access to Justice, 12.
59
RAND Corporation, 2020, 4- Ibid, 13.
60
5, https://www.rand.org/pubs/reserch_reports/RR3222.htm Ibid, 18.
61
l(discussing advantages and disadvantages of remote J.J. Prescott, “Improving Access to Justice in State
proceedings in criminal cases). Courts with Platform Technology,” Vanderbilt Law
55
Eagly, “Remote Adjudication,” 960. Review 70 (2017): 2028-2034
56 62
Zorza, Video Conferencing for Access to Justice. Ibid.
claims. However, it also highlights that for people with disabilities, who may also require
videoconferencing is not the only way to conduct special technology in order to engage in online
proceedings remotely, and that in some contexts activities such as remote court proceedings.66
online systems and other technologies have
Technology disparities potentially pose significant
functioned well.63 hurdles to the widespread use of video court
Additional Consideration for Marginalized proceedings for marginalized communities,
Communities particularly when Covid-19 has led to the closure of
Other research raises potential equity concerns about many offices and libraries. The pandemic has also
the broad use of video proceedings, particularly for caused a massive spike in unemployment, which may
marginalized communities and in cases where hinder litigants’ abilities to pay their phone and
individuals are required to participate by video. These internet bills.67 Because there is currently a dearth of
concerns underscore the need for additional research research on how the digital divide impacts access to
and evaluation as courts experiment with remote video proceedings, courts and other stakeholders
systems, as well as the need for courts to consult with should conduct their own studies before committing
a wide array of stakeholders when developing to the use of video hearings in the long term.
policies for video proceedings. Other research has identified challenges that self-
For instance, there is a substantial digital divide represented litigants face in navigating the legal
associated with access to the internet and system, including the need for training and support
communication technology. One critical unanswered offered in multiple languages.68 In some states, as
question is whether and how video proceedings may many as 80 to 90 percent of litigants are
exacerbate existing inequalities. According to studies unrepresented.69 Another critical research question is
by the Pew Research Center, there are substantial
disparities in access to internet broadband and
computers according to income and race.64 Americans 31, 2019, https://www.pewresearch.org/fact-
who live in rural communities are also less likely to tank/2019/05/31/digital-gap-between-rural-and-nonrural-
america-persists/.
have access to broadband internet.65 The same is true 66
Disabled Americans are about 20 percentage points less
likely than those without a disability to say that they have
63
See also Maximilian A. Bulinski and J.J. Prescott, access to home broadband internet or own a computer,
“Online Case Resolution Systems: Enhancing Access, smartphone, or tablet. Monica Anderson and Andrew
Fairness, Accuracy, and Efficiency,” Michigan Journal of Perrin, “Disabled Americans are Less Likely to Use
Race and Law 21 (2016). OCR systems involve Technology,” Pew Research Center, April 7,
transitioning some everyday court proceedings, such as 2017, https://www.pewresearch.org/fact-
civil infraction citations, outstanding failure-to-pay or tank/2017/04/07/disabled-americans-are-less-likely-to-use-
failure-to-appear warrants, and some misdemeanors to be technology/.
67
settled online, sometimes via videoconference. Rachel Dissell and Jordyn Grzelewski, “Phone, Internet
64
29 percent of adults with household incomes below Providers Extend Service Yet Some Still Disconnected
$30,000 did not own a smartphone, 44 percent did not from Lifelines During Coronavirus Pandemic,”
have home broadband services, and 46 percent did not Cleveland.com, April 8,
own a traditional computer. Households with incomes of 2020, https://www.cleveland.com/coronavirus/2020/04/ph
$100,000 almost universally had access to these one-internet-providers-extend-service-yet-some-still-
technologies. Monica Anderson and Madhumitha Kumar, disconnected-from-lifelines-during-coronavirus-
“Digital Divide Persist Even as Lower-Income Americans pandemic.html. See also NORC at the University of
Make Gains in Tech Adoption,” Pew Research Center, Chicago, “Most Working Americans Would Face
May 7, 2019, https://www.pewresearch.org/fact- Economic Hardship If They Missed More than One
tank/2019/05/07/digital-divide-persists-even-as-lower- Paycheck,” press release, May 16,
income-americans-make-gains-in-tech-adoption/. Only 66 2019, https://www.norc.org/NewsEventsPublications/Press
percent and 61 percent of Black and Latino Americans Releases/Pages/most-working-americans-would-face-
respectively have access to a home broadband compared to economic-hardship-if-they-missed-more-than-one-
79 percent of white Americans. Andrew Perrin and Erica paycheck.aspx.
68
Turner, “Smartphones Help Blacks, Hispanics Bridge Phil Malone et al., Best Practices in the Use of
Some — But Not All — Digital Gaps with Whites,” Pew Technology to Facilitate Access to Justice Initiatives:
Research Center, August 20, Preliminary Report, Berkman Center for Internet and
2019, https://www.pewresearch.org/fact- Society at Harvard University, 2010, 6-7, 14-19, Appendix
tank/2019/08/20/smartphones-help-blacks-hispanics- A, https://cyber.harvard.edu/sites/cyber.harvard.edu/files/
bridge-some-but-not-all-digital-gaps-with-whites/. A2J_Report_Final_073010.pdf.
65 69
Andrew Perrin, “Digital Gap Between Rural and Jessica Steinberg, “Demand Side Reform in the Poor
Nonrural America Persists,” Pew Research Center, May People's Court,” Connecticut Law Review, 47 (2015): 741.
the extent to which courts are able to provide The Situation in India Before the COVID-19
adequate support remotely, particularly in Crisis
jurisdictions where courthouses have been the In fact, prior to the sudden onset of the COVID-19 crisis
principal place where individuals going to court in 2019, fortunately, India had already covered a lot of
connect with resources. ground in digitization of justice and court administration.
Three particulrly significant developments had been the
A final question is how remote technology affects
access to justice for individuals who do not speak E-Courts Project, and the development of Supreme Court
and E-Court Services Apps.
English or have limited English proficiency. This is a
particular concern in the judicial context because I. E-Courts Project
research suggests that dense court language can be Prior to the COVID-19 crisis, the E-courts project was
difficult to communicate via translation to non- one of the National e-Governance projects implemented
English speakers.70 in all the District/Subordinate Courts in the country. The
Research related to the use of remote translation in main aim of the E-courts was to provide a transparent,
accessible and cost-effective justice delivery system to all
areas such as telemedicine has been mixed as to
whether remote translation impacts quality and citizens through the Information and Communication
Technology (ICT) and Internet enabled courts.
satisfaction.71 And while there is limited research on
remote translation in courts, a study by the Legal Significantly, the E-courts Project had made digital
interconnectivity possible among all courts from the
Assistance Foundation of Metropolitan Chicago and
District and Taluka level to the apex court. The E-courts
the Chicago Appleseed Fund for Justice found that
project had been earlier conceptualised under the
approximately 30 percent of litigants in immigration
court who used an interpreter appeared to “National Policy and Action Plan for Implementation of
misunderstand what was happening, either due to Information and Communication Technology in the
misinterpretation or inadequate interpretation.72 The Indian Judiciary –2005” prepared by the e-Committee of
study lacked a control group, making it difficult to the Supreme Court of India.7 Approved in 2010, it was
assess the role that remote video immigration saving a lot of time for users besides providing other
proceedings played in translation difficulties, but the benefits. As a public convenience, various E-Court
services were availed by the concerned citizens through
report’s authors suggested that, based on their
the Judicial Service Centre at a court complex.74 So,
observation of these proceedings, videoconferences
provision already existed in majority of the courts for e-
exacerbated translation difficulties.73
Service of summons, notices, warrants through e-mail via
the internet; e-cause lists were available on the court
website, as well as, case status, online filing, and orders
and judgments in PDF, plus every important court
70
Charles M. Grabau and Llewellyn Joseph Gibbons, information was also provided to the litigant, such as
“Protecting the Rights of Linguistic Minorities: Challenges working days, holidays, names of judges, and so on,
to Court Interpretation,” New England Law Review 30 which came in handy at the time of the COVID-19 crisis.
(1996): 237-244, 255—60. See also Ashton Sappington,
II. The Supreme Court App
“Implied Consent and Non-English Speakers,” John
Marshall Law Journal 5 (2012): 638.
Another important step towards the digitization of the
71
Ann Chen Wu et al., “The Interpreter as Cultural justice administration system which was already taken
Educator of Residents: Improving Communication for prior to the onslaught of the COVID-19 crisis was the
Latino Parents,” Archives of Pediatrics and Adolescent introduction of the Supreme Court App. The Chief
Medicine 160 (2006): 1145-50; C. Jack, “Language, Justice of India, while explaining the utility of the
Cultural Brokerage and Informed consent — Will application, expressed the hope that artificial intelligence
Technological Terms Impede Telemedicine Use?” South fuelled law translation system would facilitate the quality
African Journal of Bioethics and Law 7 (2014): 14, 16-17; translation and further help in improving the efficiency of
and Imo S. Momoh, Cultural Competence Plan, Contra
Costa County Mental Health Services, 2010, 78, 101-108,
74
114, https://cchealth.org/mentalhealth/pdf/2010_cultural_c Govt. of India, Ministry of Law and Justice. Evaluation
ompetence_plan.pdf. Study of eCourts Integrated Mission Mode Project, National
72
The Legal Assistance Foundation of Metropolitan Council of Applied Economic Research, New Delhi, 2015, p.
Chicago and the Chicago Appleseed Fund for Justice, XV,
Videoconferencing in Removal Hearings: A Case Study of <https://www.researchgate.net/profile/Sohini_Paul3/publicatio
the Chicago Immigration Court, 2005, n/327200189_Evaluation_Study_of_eCourts_Integrated_Missi
8, http://chicagoappleseed.org/wp- on_Mode_Project_Project/links/5b7f8952299bf1d5a723ca5b/
content/uploads/2012/08/videoconfreport_080205.pdf. Evaluation-Study-of-eCourts-Integrated-Mission-Mode-
73
Ibid. Project-Project.pdf>, accessed 1 November 2021.
the Indian Judicial System. The Supreme Court App was fees.78 The App provides scanning of QR code to access
to translate the judgements into nine regional the entire case status. The App is also connected with all
languages.75 Translation in court matters was a necessity 18,000 District and Subordinate Courts and 21 High
and manual translation in the past used to be a major Courts with more than 3.2 crore (more than 30 million)
problem being quite laborious and consumed a lot of case statuses available on the App. That such digitization
time often causing inordinate delays in the judicial initiatives in the judicial system were being well received
process. is demonstrated by the fact that the App had seen over 17
lakh (1.7 million) downloads within a few months of its
This official mobile app of Supreme Court of India, is
free to download and also provides useful information on launch, recording almost 5,000 downloads a day.79 Some
useful features include that the History of Case Hearings
pending and decided cases with a personalized dashboard
option in the App shows entire history of the case from
containing Cause Lists, Case Status, Daily Orders,
first date of hearing to current date of hearing. Whereas,
Judgments, Latest Updates, Office Reports, Circulars and
the Judgment option shows link of all judgments and
much more. All these can be accessed, downloaded and
orders passed and uploaded in the selected case and
shared in a user friendly interface.76
judgments can be downloaded using the App.
III. E-court Services App
Also much before the COVID-19 crisis made its Indian Courts’ Responses to COVID-19 – A
appearance, in 2017, the E-courts Services mobile Speedier Metamorphosis of E-courts to E-
application was launched. The E-Court Services App judiciary in the Post COVID-19 Crisis Era
So, summarizing broadly, it can be said that the E-courts
provides information related to cases filed in the
in India are digitized courts which, using the information
Subordinate Courts and most of the High Courts in the
country. It can be exclusively used for District Courts or and communication technologies (ICTs) and the Internet,
High Court or both. The App provides several useful provide online information to various stakeholders. Such
features to digitally assist the lawyer or the litigant, online information may be a one way or two-way
including the provision of search by CNR — which is a communication. One-way information involves the
unique number assigned to each case filed in District and courts providing information online, such as every
Taluka Courts anywhere in India through the Case possible information as made available on a court’s
website. It also includes sending information to a person
Information System – so that, simply by entering the
through any commonly used electronic mode such as
CNR, one can get the current status and details of the
SMS or WhatsApp. Whereas a two-way traffic, for
case. In addition to Case Status, search options include
example, includes online interaction among the litigants
Cause List and Calendar. The litigant or lawyer can save
and lawyers and the courts.
all cases of interest, which are shown under a ‘My Cases’
tab. This facilitates the creation and management of a In fact, it would also be pertinent to mention here that
portfolio of their cases or personal case diary for future much before the advent of the COVID-19 crisis, E-courts
use. had also become quite common in many other countries
Further, the E-Court Services App also provides of the world as well, including the United States, South
Korea, Singapore and so on. In India, as in other
numerous other services including77: Anyone can view
entire case history of a lawsuit through this App; Case countries, the E-courts were already playing an important
role in avoiding unnecessary congestion in the courts by
status, cause list, next date of hearing and so on. There is
also a provision for lawyers and litigants to e-pay court giving opportunities to stakeholders to interact online
with courts — a requirement that had emerged and had
become more of a necessity much later under the safety
75
The Economic Times, 26 November 2019, SC proposes to protocols of the COVID-19 crisis.
introduce system of artificial intelligence, says
However, E-judiciary is a step beyond E-courts. E-
CJI <https://economictimes.indiatimes.com/news/politics-and-
nation/sc-proposes-to-introduce-system-of-artificial- judiciary involves not only filing of cases online, but also
intelligence-saysji/articleshow/72245549.cms?from=mdr> includes, among other things, avenues for online
accessed 15.09.2021. interaction between the judges and advocates, online
76
Computer Cell, Supreme Court of India. Supreme Court of proceedings, online examination and cross examination
India – Official Mobile App,
<https://play.google.com/store/apps/details?id=com.nic.sciapp
78
&hl=en_IN&gl=US> accessed 01.10.2021 Official Website of District Court, <eCourts Services App
77
E-Court Services: District and Taluka Courts of India, on Mobile For Checking Case Status./District Court in India |
<https://services.ecourts.gov.in/ecourtindia_v6/> and Official Official Website of District Court of India>, accessed 12
Website of District Court <eCourts Services App on Mobile .10.2021.
79
For Checking Case Status./District Court in India | Official Thakur, Pradeep. eCourts app brings reforms in justice
Website of District Court of India>, accessed 13.10. 2021. delivery system, Times of India, 4 March 2019.
of witnesses and finally passing of online judgments. Further, “Limited benches presiding over select matters
Prior to COVID-19, after the success of E-courts, there daily, cases pending before constitution benches have
was no urgency in moving forward and things had been been put on the back burner. In the entire month of April,
moving at their own bureaucratic pace in the 82,725 cases were filed in India’s courts, while 35,169
implementation of E-judiciary in India. cases were disposed of. Compare this to 2019, when the
average number of cases filed per month was around 14
However, the COVID-19 crisis, due to its safety protocol
norm of social distancing, started nudging the judicial lakh (1.4 million)… while the average number disposed
of per month was 13.25 lakh (1.325 million)”.82
administration to take a quicker leap from the existing
stage of E-courts and jump to the next level, i.e., E- Of particular importance is that the Indian Parliament too
judiciary. In fact, as a direct consequence of the COVID- took the COVID-19 crisis seriously and set up a
19 crisis, after E-courts we are now witnessing a new Parliamentary Committee Panel (hitherto referred as
impetus to leapfrog from E-courts to E-judiciary as a Parliamentary Panel) to look into the whole issue and its
preferred mode of justice administration in courts at consequences. This was the first report to be presented by
various levels, as the following examination of the any Parliamentary Panel on the impacts of Covid-19
courts’ responses to COVID-19 illustrates. pandemic, and significantly, the Panel recommended
“continuation of Virtual Courts even after the Covid-19
E-judiciary in India and the COVID-19 Crisis:
pandemic gets over for some identified categories”, since
Issues and Challenges
“digital justice is cheaper and faster” and that the court
No wonder E-judiciary is being hailed as a safer mode of
was “more a service than a place”.83
justice administration during the COVID-19 crisis with
added efforts for its rapid universalization in the country. But at the same time, the Parliamentary Panel admitted
However, the move is also throwing up a number of that virtual courts did have issues but they must succeed,
challenges that need to be addressed as a priority for as a virtual court is an improvement over traditional
avoiding unnecessary hardship to lawyers and litigants court. The Panel urged advocates to change with times
during this rapid transition period. and also recommended the teaching of a computer course
in law courses and to make changes in the law to validate
1. Increase in Cases Pending
virtual court proceedings.84
It is rightly observed that the COVID-19 crisis has not
only caused immense harm the world over by not only 2. Reservations by the Bar
bringing the down the economies but also caused adverse However, on the other hand, the Bar had its own
impact on many businesses and professions80, and the reservations and did not seem to welcome such new
legal profession is no exception. Regarding its impact on technological changes in court functioning with open
justice administration in India, it was rightly perceived arms. Expressing concerns, the representatives of the Bar
that “Covid-19 has brought almost the entire world to a had argued before the Parliamentary Panel that the virtual
near-standstill, and India’s justice delivery system — proceedings favour the tech-savvy advocates besides
rarely known for its speed even in the best of times — is depriving lawyers of an opportunity to present their case
no different. Official data shows that while the institution and change the course of arguments based on the
of new cases, both in the higher judiciary and subordinate changing dynamics of a case.85 The Bar maintained that
judiciary, had come down since the beginning of the “An advocate gets to understand the mood of the judges
nationwide lockdown on 25 March (2020), the disposal and stands a better chance at convincing them during
rate has also been severely affected due to the forced physical hearings. However, online hearing creates a
closure of courts. The judiciary has come under immense psychological pressure on both the advocates as well as
pressure to innovate during this pandemic so as to the judges. Evidence recorded by means of video
balance public health concerns with access to justice,”
and “All courts, including the Supreme Court, high
courts and district courts, have been operating in a highly judiciary-in-times-of-covid-19-outbreak/> accessed
restricted manner. Mostly courts have already decided to 27.10.2021.
persist with the restricted functioning”.81 82
Ibid.
83
Parliament of India. Rajya Sabha Secretariat, Interim Report
on the Functioning of the Virtual Courts/Court proceedings
80
LiveLaw.in, Pandemic (Covid 19) And Nationwide through video conferencing, 11 September 2020,
Lockdown Severely Damages Legal Professionals, <https://rajyasabha.nic.in/rsnew/Committee_site/Committee_F
<https://www.livelaw.in/columns/pandemic-covid-19-and- ile/Press_ReleaseFile/OTHER/1/327P_2020_9_9.pdf>,
nationwide-lockdown-severely-damages-legal-professionals- accessed 27.10. 2021.
84
158010>, accessed 15.10.2021 Ibid.
81 85
Civilsdaily. Judiciary in Times of COVID-19 Outbreak, 12 Pratul Sharma, Retain virtual courts post COVID-19, too:
May 2020, <https://www.civilsdaily.com/burning-issue- Parliamentary panel, The Week, 11 September 2020.
conferencing may distort non-verbal cues such as facial their specialised legal knowledge and, therefore, they
expressions, postures and gestures”.86 should keep up with the changing times”.91
Lawyers maintained that virtual hearings deprived them 3. Access to Justice – the Digital Divide
of the opportunity to alter the course of argument based Another serious repercussion as a consequence of the
on the ‘changing dynamics of a case during a hearing’, as COVID-19 crisis in India is equally disturbing and
“An advocate gets to understand the mood of the judges cannot be ignored. The Courts in India at various levels,
and stands a better chance at convincing them during viz., Supreme Court, High Court and Subordinate or
physical hearings. However, online hearing creates a District Court levels through guidelines issued from time
psychological pressure on both the advocates as well as to time have been insisting on only virtual hearings in
the judges. Evidence recorded by means of video several types of cases during the COVID-19 crisis.
conferencing may distort non-verbal cues such as facial However, due to the ground realities many litigants are
expressions, postures and gestures,” the advocates barred from seeking justice for no fault of theirs. More
claimed.87 specifically, in faraway rural areas or remote towns
where there is no internet connectivity whatsoever, the
However, the Parliamentary Panel maintained that
various Appellate Tribunals like Telecom Disputes lawyers are unable to contest and the litigants are
suffering with the COVID-19 crisis situation to blame.
Settlement and Appellate Tribunal (TDSAT), National
Company Law Appellate Tribunal (NCLAT) and Besides, during the COVID-19 crisis, the situation
Intellectual Property Appellate Board (IPAB) can adapt seemed to be no different for other peripheral but
to a system of complete virtual proceedings as they do important stakeholders in justice administration as well.
not require personal appearances of the advocates or Due to a substantial reduction in the footfall in the courts
parties”.88 due to strictly imposed COVID-19 restrictions, there was
meagre earning for the Notaries, Oath Commissioners
Interestingly, a reviewer of the situation also concurred
and a section of lawyers who practised in relation to
that the technological initiative “has been welcomed with
offences pertaining to petty crimes.
open arms by stakeholders of the legal fraternity, which
unfortunately includes only certain privileged and However, on the infrastructure front, with the COVID-19
technology-aware class of lawyers, and not to the entire pandemic dangers in view, the Government is also
brethren”.89 While another lamented that “The legal speedily providing video-conferencing rooms in courts
profession is in a position where lawyers and judges are across the nation92 in order to facilitate E-judiciary mode
all content with their archaic methods and are loath to get of justice administration during the COVID-19 crisis
habitual with technology in law. Notwithstanding the fact period.
that application of technology can give legal professions
Judicial precedents in relation to virtual courts:
a new dimension”.90
A two-judge Bench in Krishna Veni Nagam v. Harish
Even the Parliamentary Panel admitted that over 50 per Nagam93 while dealing with transfer petition seeking
cent of advocates, mostly at the district and lower courts transfer of a case instituted under Section 13 of the
were not having either a laptop or a computer and lacked Hindu Marriage Act, 1955, when both parties were
skills required for virtual proceedings. Nonetheless, it not located within the jurisdiction of the same court,
was of the view that “In coming times, technology will referred the parties to participate in the matrimonial
emerge as a game-changer and advocates would be dispute cases through video conferencing. While
required to use technological skills in combination with allowing the abovementioned transfer petition, the
difficulties faced by the litigants living beyond the
86
Ibid. local jurisdiction was acknowledged by the Hon'ble
87
Ibid. Apex Court that “it is appropriate to use
88
The Daily Guardian. Parliamentary Panel Bats for ‘Digital videoconferencing technology where both the parties
Justice’; Virtual Courts to Continue, 12 September 2020, have equal difficulty due to lack of place convenient
<https://thedailyguardian.com/parliamentary-panel-bats-for- to both the parties. Proceedings may be conducted on
digital-justice-virtual-courts-to-continue/>, accessed 1 videoconferencing, obviating the needs of the party to
November 202. appear in person, wherever one or both the parties
89
Bar and Bench. Virtual Courts: A sustainable option?, make a request for use of videoconferencing.”
Dubey, Pramod Kumar, 12 April, 2020,
<https://www.barandbench.com/columns/virtual-courts-a-
91
sustainable-option>, accessed 30 January 2021. Pratul Sharma, Retain virtual courts post COVID-19, too:
90
Pleaders: Intelligent Legal Solutions. Technology: Parliamentary panel, The Week, 11 September 2020.
92
Rejuvenate Legal Regime, Aggrawal, Siddhi, “2.5K courts to be equipped for online hearing”, The
<https://blog.ipleaders.in/technology-rejuvenate-legal- Tribune, Chandigarh, 7 December 2020, p.1
93
regime/>, 10 June 2020, accessed 29 January 2020 Transfer petition (CIVIL) NO. 1912 OF 2014.
Later on, the Veni Nigam’s case was overruled by the court are the need of the hour in current
Supreme Court of India in Santhini v. Vijaya circumstances but the principle of the open court
Venketesh94 by a 2:1 majority. Chief Justice of India, should not be compromised.
Dipak Mishra and Justice AK Khanwilkar held that
The Supreme Court recently issued a press
“in transfer petition, video conferencing cannot be note97 addressing criticism against the continuation of
directed”. However, Justice DY Chandrachud wrote
virtual court hearing post-lockdown stating that the
the judgment in favour of the use of modern aim of both the system of adjudication through the
technology and video conferencing. Justice
open court system and the court system being
Chandrachud in the dissenting opinion highlighted the conducted via video conferencing is delivery of
pros of video conferencing which are laid down
justice. The press notes further state that “Open Court
below:
hearings cannot be claimed as a matter of absolute
A. “The Family Courts Act, 1984 was enacted at a right and process of adjudication itself does not
point in time when modern technology which demand an Open Court.” However, in the present era
enabled persons separated by spatial distances to when we are reliant on technology for every aspect of
communicate with each other face to face was not our lives, Virtual Court Rooms cannot be are
fully developed. There is no reason for court “antithetical” to the open court system in any manner.
which sets precedent for the nation to exclude the Currently, video conferencing is being used for
application of technology to facilitate the judicial
extremely urgent matters whereas the e-filing facility
process.”
is available for all matters. Apart from the current
B. “Imposing an unwavering requirement of COVID-19 induced situation where there was a dire
personal and physical presence (and exclusion of need for the judicial fraternity to remain accessible,
facilitative technological tools such as video the judiciary should approach the virtual court
conferencing) will result in a denial of justice.” mission post- COVID-19 crisis as well.
Unfortunately, even before this crisis, many people
Pros and cons of video conferencing
did face difficulty accessing justice through courts
The Chairman of Bar Council of India had addressed due to a variety of reasons including a lack of
a letter to the CJI95 opposing the virtual hearing post financial means, physical disabilities, and other
lockdown period stating the yawning gap between unavoidable circumstances. There are several benefits
resources available for video-conferencing and e- of hearing via video conferencing including no
filing with lawyers of humble background from rural requirement of physical presence wherein parties do
cities as compared to that of the elite class of big travel miles to be present in person before courts and
cities. He urged to introduce a virtual court system in at the same time, it will be cost and time effective for
a phased manner. However, the council has the parties’ perspective as well as the judiciary. Most
appreciated the idea of conducting “virtual hearing” importantly this will reduce carbon footprint. Video
particularly the Apex Court and High Courts for conferencing should be made optional in all courts
extraordinary urgent matters, but the aforementioned across the country for all kinds of matters.
letter highlights the fact that “90% of the advocates Digitalisation will reduce the humongous number of
and judges are unaware of the technology and its pendency of cases before courts and will be an
nuances. The people sitting on elevated chairs are so effective remedy for delayed justice.
distant from ground realities that’s why they are
The Hon’ble Supreme Court of India in State of
advocating such thought process.”
Maharashtra vs. Dr. Praful Desai98 stated in light of
Many Lawyers have raised concerns regarding the section 273 of CrPC, the term ‘presence’ cannot be
virtual court proceeding not being open for public interpreted to only mean the actual presence of a
viewing as the facility is accessible only by the judges person in any court. Hence, evidence can be recorded
and the counsels representing the party. In Naresh without the requirement of being physically present in
Shridhar Mirajkar & Ors vs. State of Maharashtra & court in a situation where parties are located
Anr96 it was held that “Public hearing of cases before remotely, or cases where confidentiality is to be
courts is as fundamental to our democracy and
system of justice as to any other country.” Though
97
conventional technology interventions like the virtual Supreme Court of India, Note on open court hearings, 2
May 2020, retrieved
from https://images.assettype.com/barandbench/2020-
94
Transfer Petition (CIVIL) NO.1278 OF 2016. 05/06c7b93c-c27a-4702-9b16-
95
Letter BCI: D: 1372/2020 (Council) dated 28.04.2020. 5a47841aa88f/Note_on_Open_Court_Hearing.pdf
96 98
1967 AIR, 1 1966 SCR (3) 744. AIR 2003 (4) SCC 601
maintained, where there is an apprehension of danger judiciary. Key to this, has been a shift from E-Courts to
to the life of any witness or instances where witnesses E-Judiciary, in the form of virtual hearings.
do not give their statements due to fear of getting Briefly, as of now, it cannot be said for sure that the
entangled in court matters.
COVID-19 crisis will be short-lived. That only time will
Conclusion tell, because the COVID-19 virus is showing long term
Though video conferencing technology has been a after-effects as well, and long-Corona cases too are
valuable tool during the Covid-19 pandemic, existing emerging, plus new strains/variants of the COVID-19
scholarship suggests reasons to be cautious about the virus are making their appearance every now and then,
expansion or long-term adoption of remote court like in the United Kingdom, South Africa, Brazil and so
proceedings. More research is necessary, both about on, and the virus still continues to pose a dreadful
the potential impact of remote technology on potential global threat. We do not seem to be fully out of
outcomes in a diverse range of cases, as well as the danger yet. So, for how long the COVID-19 crisis
advantages and disadvantages with respect to access induced interim hurriedly introduced technological
to justice. In the meantime, as courts develop policies innovations and the new COVID-19 crisis prompted
for remote proceedings, they should consult with a court working methods shall persist, is yet to be seen.
broad set of stakeholders, including public defenders Under the circumstances, whether these will become a
and prosecutors, legal services providers, victim and permanent “new normal” in the court administration
disability advocates, community leaders, and legal system of the country in times to come, is also difficult to
scholars. predict. Nevertheless, this is an important aspect which
Showing its impact in India, as evident particularly in the would be the subject matter of future quantitative legal
period after lockdown, the global COVID-19 crisis studies, after the ongoing COVID-19 crisis dust settles
suddenly enforced a sudden, rapid and unprecedented down.
shift in the mode of court administration at all levels of

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