Source: Mohamed Hassan from Pixabay 

The world had recently witnessed the end of the decade marking the copious cataclysm when problems came not as solitary spies but in battalion thrown entire humanity in ambiguity. But it also held us to think about some questions which remained unanswered in the time stream.

One such opportunity shrouded was the digitisation of the Indian judiciary, which has received a major thrust due to the pandemics restriction norms. The sanctum sanctorum of our judiciary, Supreme Court, and the High Courts have opted for e-filing of cases requiring specific attention and conducted multiple hearings over video conferencing (VC). But honourable Supreme Court has used the words temporary transition to video-conferencing in view of the situation however; the important question is whether these ephemeral changes are what we want? Isn’t it the right time to evolve towards more transformational changes than transient ones?

Vail of Ambiguity

India always had a "free, open and independent" judicial system which is an archetype of our sovereign, democratic republic. Though ‘access to justice has not been verbally spelled out as a fundamental right in the constitution, it has always been treated as such by the Indian judiciary. But usually, the common citizens experience justice delivery as a passive observer, and the pandemic had only intensified the situation. Let us have a look at our pasts so that we will acquire a better perspective on our needs for digitalisation. There are several blots of procrastinated trials that spanned generations. As per the data, the trial of the men who assassinated Railway Minister L.N. Mishra in January 1975 dawned in conviction in 2014, a well 39 years later. The Hashimpura case, in which nearly 40 Muslims were massacred in 1987, resulted in an en masse acquittal in 2015, but the Delhi High Court restored some faith in the judicial process by granting life imprisonment to 16 men three years later. Raja man Singh encounter case took 35 years to complete the trial stage has created illusions that justice moves at a snail’s pace in this country, although convictions in heinous crimes ought to be welcomed regardless of the long delay. Although this is a combined result of poor judge-population ratio, gaping inadequacies in lower courts, frequent adjustments, etc; lack of adaptability to modern technology lies in primes inter pares.

Steps in the right direction 

In a conference in Jan 2020, the Chief Justice of India uncovered an opportunity for AI-ML technology for the judiciary to ensure that nothing diverts the relentless flow of justice. Let me also remind you about the torch-bearing case of State of Maharashtra v. Praful Desai in which, the Court has interpreted the word “presence” in a wider sense and held that any evidence by video-conferencing (VC) will be regarded as evidence in presence of the accused.

As soon as the lockdown was announced, the SC under article 142 made it mandatory to frame guidelines for virtual courts and the epitome of virtual court hearings rose like a Phoenix sooner than later by undergoing a prodigious process of establishing the required infrastructure and adapting itself to video conferencing tools. It gives an edge over the standard process as it is vital for cost minimization.

  1. It reduces the cost of transportation of witnesses and testimonial evidence, thereby ensuring their safety and security. 
  2. It will also reduce passiveness by reducing frequent adjournments for unsustainable reasons as physical presence is not required.
  3. Justice D.Y. Chandrachud observed in his dissenting opinion in Santhini v. Vijaya Venketesh that adjournments and delays in justice delivery on the point of lack of availability or travel time can be easily resolved through VC, thereby increasing the number of cases being heard.
  4. It will improve the participation of people and the transparency of the system. 
  5. Making Judiciary open to all, improving 'access to justice' and thereby being more affordable. 
  6. Paperless courts making pragmatic contributions to eco-sustainability. Inter alia, the e-filing mechanism has been a great thrust for paperless courts since it has ensured that the filing of petitions is done online and that minimal hard-copy printing takes place. Despite the advent of the e-pay portal, its applicability is confined to only a few divisions within 11 Administrative areas. The Objectives Accomplishment Report, 2019 published by the apex court, highlighted both the successful and pending steps under the Project.
  7. One of the visible problems in the lower judiciary currently is corruption and lack of transparency. The digitisation of records and removal of the stairs and stops of filing may drastically reduce corruption and ease the burden on the masses.

The pioneering role was played by Delhi high court way back in 2010 for improving adaptability to video conferencing infrastructures, others too followed the footsteps but at a snail’s pace. 

It is not that we lack imagination. At the dawn of Digitalization, the E-courts Mission Mode Project was launched, in National e-Governance Plan (NeGP). The phase of initiation upwelled from 2010-2015, though the work started from 2007 itself. Portals like ‘e-pay’, ‘e-filing’ and ‘e-courts services’ and applications like NSTEP, ‘Just Is’ have been launched were the right steps towards digitalization. But we should understand that total digitalization is not a panacea!
We have to take care of some things:

  1. There lies a speed breaker of technical glitches. India is not yet a digitally inclusive country for all.
  2. Threats to cyber security and data protection increased like never before the National Data Sharing and Accessibility Policy (NDSAP), 2012, set down clear guidelines regarding the management of public data. The government’s open data platform has had some judicial data released by the Ministry of Justice and Law; however, it can be improvised in the variable and manner of access The National Judicial Data Grid is another step in the right direction. It gives overall statistics at the district and high-court levels. However, access to case-level data is one at a time and secured through CAPTCHA to prevent direct machine access.
  3. Also, there will be doubts on the reliability of witnesses and evidence being tampered with,  we can’t be the spectators of Damocles sword hanging over the heads of witnesses. 
  4. The physical presence in courts gives the sense of security and faith in our sanctum sanctorum. Which can never be achieved in online mode 

Digital courts can legitimately supplement the standard system of the judiciary, but we can't think of it substituting it in a real sense. 

Is there a long rally ahead? 

Several organisations such as W3C, World Bank can definitely act as a torchbearer for the Indian judiciary to overcome the problem of data protection and management infrastructure. The global best practices can be a guiding ray in designing out National Open Data Policy and Privacy & Data protection bills. It rationalises democracy, and the judiciary can leverage the opportunity to enhance the trust and faith reposed in it.

E-litigation has been prevalent in Singapore, which helped them to go substantially paperless. This can act as a north star for Indian judicial management. It includes an electronic filing service, an electronic extract service (which allows lawyers to obtain extracts of court documents), a facility to electronically serve processes on parties, and an electronic information service. This served the dual purpose of helping Courts to reduce the paper trail but also helping lawyers keep proper track of all Court documents. India can adopt similar strategies.

Currently, some District Courts throughout India allow the filing of Court fees online in the form of E-Challan, and they also do update the case status of ongoing cases on the e-courts website. However, not everyone is ready for those incremental changes and to get out of old traditionalism. Law was meant to help the masses and a complicated procedure of filing only discourages genuine litigants.

Opportunity is at our doorstep!

As all of this suggests that India is on the verge of becoming a major influencer in the world’s political and social dynamics, any change towards achieving greater good and efficiency will be marked as a milestone by our future generation. Lack of infrastructure is not a viable reason as we all witnessed India’s progress in healthcare facilities from having some two or three testing laboratories and passive manufacturing hubs for utilities to a “world’s pharmacy” by being one of the leading manufacturers of the mask, PPE kit, and medicines with having thousands of testing lab. So if we can improve in that sector even during such circumstances then we can definitely develop vibrant and safe digital infrastructure for the judiciary over time. Although every policy comes with inherent pros and cons, the best way to scrutinise something is to apply it in a pragmatic way.

“True certainty lies in the unrestrained embrace of uncertainty, you can’t cross a sea merely by standing and staring at the water“ - Rabindranath Tagor

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