Earlier this month, the Supreme Court took up a case of a court in Jharkhand which had pronounced an order to the accused through a WhatsApp call. The Supreme Court took note of it and criticised it heavily by calling it a joke. The frontiers of technology have been pushed by the court to unrealistic and unacceptable limits, not due to any limitation of technology, but due to non-approval of such a method either by legislature or judiciary.

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The brief facts are thought-provoking. In the state of Jharkhand, a former minister Yogendra Sao and his wife Nirmala Devi have been accused in a rioting case. They were granted bail and the Supreme Court had imposed a condition that they should stay in Bhopal, capital of Madhya Pradesh. They were not allowed by the court to enter the state of Jharkhand. Only for the purpose of court proceedings, they could have entered into Jharkhand. They were not supposed to go out anywhere from Bhopal and the trial was to be conducted through videoconferencing from the district court in Bhopal and district court in Hazaribagh, Jharkhand. It was argued by the lawyers that the connectivity of videoconferencing facility was very low and that might have been the reason as to why the trial judge used a WhatsApp call.

It is undoubtedly true that there are a large number of cases pending in the country due to the problems of not being able to serve the summons, or the accused not turning up in the court on the stipulated dates, due to a variety of reasons, many of them get legal sanction when an application is made to the judge on numerous grounds, some of them being genuine and most of them being fake. Such a practice results in delay in the system, particularly in criminal matters, which may linger on for years and years.

With the advancement in technology, there have been changes in the evidence law in the country making it possible for videoconferencing to be legally admissible as evidence, however, it has to be done in an approved manner which promoted the use of this technology typically for prisoners. This was the case about a decade ago, but today, inexpensive and easily accessible technology has made it possible for almost every person to make a video call without the need of having expensive videoconferencing equipment and establishing the entire setup. A simple hand-held device like an easily available and inexpensive smart phone, powered by a 4G connection and with reasonable signal strength, is more than enough for making a video call to anyone in the world. Thus, practically it is much more convenient and public friendly to be able to communicate with the court from anywhere in the world.

There are, however, legal issues primarily of identifying the person ensuring that it is the same person on the other end who is supposed to communicate, and also that there is no tapping of the phone or breach of data or hacking of the entire system, and that there is no tutoring of the person and doctoring of message. These are difficult to be ensured in uncontrolled circumstances, and that's the reason why the law cannot allow such communication between the people and the court to the time most of the above mentioned concerns are taken care of technologically and legally. Another important issue is that the person with whom the court wishes to communicate should be on the right side of the law and willing to help to take the process of law forward. The technology cannot be allowed to be used by someone who is running away from the legal system.

Sao and his wife had been violating the bail conditions frequently and could not be allowed by the courts to be treated sympathetically. This is a very different case in which the accused are themselves at fault, however, there are practical problems of videoconferencing connectivity – some might have been intentionally created by vested interests – so as to make that facility defunct. The courts in India have got their own websites and mobile applications, and it would be in the interest of litigants and the public at large that these mobile apps provide a court approved video calling facility.

Technology, if used properly, will prove to be courts' friend.

The author is a professor at Indian Institute of management Ahmedabad akagarwal@iima.ac.in