Online Hearing

What is a 'Online Hearing'?

• Online/Virtual hearings pertain to judicial proceedings conducted via video conferencing, wherein the entirety of the proceedings is not held in a physical setting, allowing for the participation of individuals remotely. Such hearings may adopt a hybrid format, wherein certain participants engage in the proceedings through online platforms while others are physically present.
• Virtual courts via video conferencing are a fundamental right under India's Constitution. Any barriers to access should be removed. Lawyers must not face discrimination for choosing virtual hearings. This inclusivity enhances efficiency and access to justice, bridging traditional norms with modern tech for everyone's benefit.
• During virtual hearings, plaint and other documents are filed electronically, arguments are heard over videoconferencing/teleconferencing, evidence is submitted digitally, judges decide cases online either presiding from the physical Courtroom or sitting in some other place.

Official Definition of 'Online Hearing'

'Online Hearing' as defined in official document(s)

Ministry of Electronics and Information Technology is actively developing an Indian made Video Conferencing software, it has been informed that NIC is also exploring the option of implementation of Bharat VC for eCourts which is powered by Indian product of M/S Techgentsia and it is under trial for use as uniform Video Conferencing platform.

In reply to Rajya Sabha Question No.1885 for 16/03/2023 regarding e-Courts project, the High Courts furnished the funds released for infrastructure development in the last three years:

• Furthermore, the High Courts also furnished the details of courts where virtual hearing is taking place along with details of cases heard through virtual hearings:

'Online Hearing' as defined in case law(s)

Sarvesh Mathur Case

In the Sarvesh Mathur Case, the Supreme Court of India issued instructions to promote remote proceedings via video conferencing:

1. The order mandates that within two weeks, no High Court should deny video conferencing or hybrid mode hearing access to any member of the Bar or litigant. Simultaneously, State Governments are tasked with providing necessary funds to High Courts for the prompt implementation of facilities required to facilitate such proceedings.
2. Furthermore, the order emphasizes the need for High Courts to offer free and robust internet facilities, including Wi-Fi with sufficient bandwidth, to advocates and litigants within the precincts of the court. To streamline the process, links for accessing video conferencing and hybrid hearings will be included in the daily cause-list without the necessity of prior applications. Notably, the order prohibits the imposition of age or arbitrary criteria for availing virtual or hybrid hearings, promoting an inclusive and accessible legal environment.
3. Additionally, the order outlines a stringent timeline for the establishment of a Standard Operating Procedure (SOP) within four weeks. Justice Rajiv Shakdher, along with designated individuals, will lead the creation of a model SOP, ensuring uniformity across all High Courts. The transparency and accountability measures also require High Courts to furnish details such as the number of video conferencing licenses, hybrid infrastructure, and a court-wise tabulation of hearings conducted since April 1, 2023.

International Experience

United Kingdom

The updated Civil Procedure Rules, notably Practice Direction 51Y, now accommodate remote hearings via video or audio link. Initiatives like the Online Solutions Court pilot enable entirely online resolution of certain civil claims, eliminating the necessity for physical courtroom appearances. Specific tribunals, such as the Employment Tribunal and the Immigration and Asylum Tribunal, have also established guidelines for remote hearings tailored to their respective jurisdictions.

Singapore

The Singaporean government has updated laws to support online legal proceedings, ensuring compliance and validity in virtual settings. Courts are equipped with technology for remote participation, including video conferencing and digital evidence presentation. Singapore promotes e-litigation, encouraging legal professionals to utilize electronic means for case management and communication within the legal system.

European Union

Several European countries, such as Germany, France, the Netherlands, and Estonia, are integrating online elements into their legal systems. For instance, Germany's Judiciary Modernization Act now allows virtual court sessions. Additionally, the European e-Justice Portal, an EU initiative, aims to facilitate cross-border access to legal systems and may eventually encompass guidance on digital legal proceedings.

United States of America

Courts have partnered with platforms like Zoom for Government, bolstering security for legal proceedings and compliance with regulations like HIPAA. Some jurisdictions are exploring remote jury trials to address challenges in selection, deliberation, and maintaining trial integrity. Federal and state courts have issued specific rules and orders governing online proceedings, detailing procedures and technical requirements.

Research that engages with 'Online Hearing'

Measuring Access and Fairness in Remote Court Proceedings (NCSC)

The article ‘Access and Fairness in Remote Court Proceedings’, released by National Center for State Courts, delves into the experiences of court users in response to the widespread adoption of remote proceedings. The primary goal of this research is to assess fairness and access in a practical setting, emphasizing a focus on real-time implications rather than solely on long-term policymaking.

NCMS Baseline Report on Case Management System (NCMS)

The Chapter 6 of ‘NCMS Baseline Report on Case Management System’ explores “video conferencing”. This section of the research examines the utilization of video conferencing facilities from a distinct perspective and offers preliminary considerations that High Courts should take into account before implementing video conferencing to facilitate remote proceedings.

Disconnected - Videoconferencing and Fair Trial Rights (CHRI)

The report ‘Disconnected - Videoconferencing and Fair Trial Rights’, released by CHRI, documents the experiences of 20 criminal lawyers and 10 judicial officers of criminal trial courts across the country, to understand the implications that videoconferencing hearings have on the fair trial rights of accused, especially of those who participate in these proceedings from prison.

On-Line Hearings in Justice Systems (OHCHR)

The brief ‘On-Line Hearings in Justice Systems’, released by Office of the High Commissioner (UN Human Rights), explores how COVID-19 accelerated the rise of online hearings in justice systems worldwide, allowing continuity during the pandemic. While enhancing access and efficiency, they raise fair trial concerns. To ensure fairness, precautions are essential, aligning with international human rights law, particularly the ICCPR, emphasizing individual rights over efficiency in adopting online hearings.

Video Conferencing, E- Filing, and Live Streaming in the High Court (DAKSH)

The article ‘Video Conferencing, E- Filing, and Live Streaming in the High Court’, released by DAKSH, elaborates upon the Supreme Court directions to high courts to adopt video hearings, resulting in varied approaches across courts. It expands on the involved rules, guidelines, and SOPs governing video conferencing (VC) and e-filing, shaping a hybrid judicial system.

Video Conferencing in Indian Courts (DAKSH)

DAKSH has written a report on VIDEO CONFERENCING IN INDIAN COURTS, the paper suggests a variety of techniques, including taking into account the nature of the case, particular phases or conditions, application-based access, and giving priority to urgent cases in times of emergency. It admits that elements like infrastructure, technology, and digital literacy must be taken into account in the Indian context.

1. Examining the architectural framework for video conferencing in courts, with a focus on case listing, identity verification, holding hearings, sharing documents, and issuing orders. Aspects of due process are also covered, including safeguarding vulnerable witnesses' privacy and accessibility for those with disabilities.
2. A global perspective is given, contrasting the usage of video conferencing in the US, Canada, Australia, and the UK. The article examines various platforms employed in these nations and highlights the requirement for a full virtual court environment that complies with security norms and offers necessary collaboration capabilities.
3. The last section of the report presents an implementation approach, which includes assessing existing usage, carrying out pilot studies, and having high courts develop regulations. It stresses how crucial it is to evaluate the efficiency of video conferencing in courts before devoting more funds.

The Rajya Sabha, Department- Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice published the 103th Report, Report on Virtual Courts on 11th September 2020. The report is a thorough analysis of how video conferencing and virtual courts operate in judicial procedures. To ensure the continuance of justice while maintaining safety regulations, the study explains the steps for the successful application of these technical solutions during the COVID-19 pandemic.

The research discusses several issues of virtual court proceedings, including case administration, technical infrastructure, and access to justice. It acknowledges the difficulties encountered while switching to virtual courts and provides helpful recommendations for enhancing their effectiveness. The paper also stresses the value of instructing legal professionals and court personnel in the use of video conferencing technologies. Additionally, it addresses issues with data security, privacy, and the requirement for ongoing analysis and updates to improve the virtual court system.

Virtual Hearing

The article 'Virtual Hearing’, written by Mr. M. Govindarajan, explores how COVID-19 swiftly pushed courts, especially the Supreme Court, into virtual hearings via Article 142 orders. Guidelines were issued, stressing decorum and proper attire during online appearances. Instances of misconduct led to court reprimands and directives, emphasizing maintaining professionalism in virtual settings. Rules restricted sharing video links without permission and imposed fines for misconduct, like attending from vehicles. Despite challenges, the judiciary efficiently adapted, ensuring access to justice during the pandemic.

Virtual Hearing by Judiciary, Tribunal and Regulator (ICSI)

The Institute of Company Secretaries of India outlined the development of virtual hearing in India, namely, ‘Virtual Hearing by Judiciary, Tribunal and Regulator’. The research explores how virtual hearing has become relevant in the recent discourse and how the implementation is being carried out by different levels of Indian Judiciary.

Practical Considerations in Remote Hearings (SCC Online)

The article ‘Practical Considerations in Remote Hearings’ explores how remote hearings pose challenges for the Indian legal system due to internet limitations and technological unfamiliarity. COVID-19 forced courts to rely heavily on online platforms for urgent cases. However, issues with internet access and tech proficiency, especially among senior lawyers, affect the process. Choosing secure platforms and prioritizing written submissions over oral arguments become crucial.

Similar Terms but Different Meanings

Paperless Courts

Paperless courts signify the transition from conventional paper-based record-keeping to a digital framework. This paradigm shift involves the electronic storage and management of documents, case files, evidence, and court proceedings, replacing reliance on physical documentation.

e-Courts

The eCourts Project, born from the 2005 ICT policy, led by the Supreme Court's eCommittee, aimed to modernize India's judiciary through technology. Funded by the Department of Justice, it focuses on nationwide District Court modernization, emphasizing citizen-centric services, decision support systems, transparent information access, and improved judicial productivity for an affordable, accessible, and transparent justice system.

Digital Courts

Digital Court is a foundational digital infrastructure for the law and justice sector; ideally, it functions as a natively digital platform through which judicial services may be delivered. Establishing a digital court involves not just building a technical platform, but also re-engineering administrative processes to: (i) enhance access to justice, (ii) boost existing systemic capacity, and (iii) improve the efficiency of the overall judicial administration system.

Virtual Courts

A virtual court is an arrangement in which judicial processes are carried out online via digital technology and channels of communication. The judges, counsel, litigants, and other participants can participate in court procedures without personally being present in a courtroom by using video conferencing, electronic file management, and other online methods.

Way Forward

Online hearings, conducted via video conferencing, revolutionize legal proceedings by enabling remote participation. While they enhance access and efficiency, concerns arise regarding fair trials and technological disparities. It's crucial to bridge the digital divide and ensure adherence to human rights laws. These virtual proceedings intersect with terms like paperless courts, e-courts, digital courts, and virtual courts, each emphasizing different aspects of the legal system's digital transformation. Balancing innovation with safeguards for fairness and inclusivity remains pivotal in navigating this evolving landscape.