Coronavirus Attack Reminds India’s Judiciary Of Technology Gaps
On an ordinary day, India’s apex court functions with 17 benches of two or more judges each, and hears between 50 and 70 cases. In the past month barely two benches have sat, remotely, hearing cases on video conference - each disposing only urgent matters. Maybe 10-15 cases have been heard each day.
For a court facing a backlog of over sixty thousand cases, social or physical distancing in the times of coronavirus is yet another reminder for the need to abandon outdated processes, embrace technology, and improve efficiency. As well as, stay safe in times of pandemic.
The court has responded, but so far with temporary measures. Chief Justice of India Sharad Bobde, rejected the proposition of shutting down the court and Justice DY Chandrachud is heading the team to ensure hearings continue, albeit at a far lower volume than usual.
The Justice Chandrachud-led e-committee is looking primarily at facilitating e-filing and ways for the court to rely on only digital process and go paperless.
Meanwhile, to keep the wheels of justice turning across the country, the Supreme Court has also laid down guidelines for all courts to use video conference facilities to hear cases. “Technology is here to stay,” CJI Bobde said on April 7 while hearing a suo-motu case for laying down guidelines for virtual functioning of the courts. No recording of evidence though has been permitted over video conference.
“The immediate response to the Covid-19 crisis from the current leadership of the judiciary has been excellent considering the technological resources at their disposal. But there must be questions asked on the pace of technology adoption by the judiciary, which has been slow,” said Surya Prakash BS, programme director at legal policy think tank DAKSH.
He cited the example of e-filing across courts. Had it been properly implemented in the past it would have been useful at such a time, “but it has not been developed sufficiently due to unaddressed issues of the past”.’
E-Filing And Its Challenges
Filings are documents outlining the details of the case and the legal issues involved. These are to be submitted by lawyers with the court registrar before the case comes up for hearing by the judges.
This is hardly a novel idea in the twenty first century, yet adoption has been slow and painful.
For instance, Delhi High Court procedure requires a lawyer to print his pleadings on A4-sized paper, along with annexures, affidavits, payment receipts, etc. The petition is then scanned and submitted by the lawyer via dedicated computers set up in the e-court rooms within the court’s premises.
The current process of filing is “far from the idea of e-filing” as the lawyer has to travel to the court with a physical paper book which is then uploaded by the registry, says T Prashant Reddy, independent legal commentator and former fellow at Vidhi Centre for Legal Policy.
“There are still processes, such as the need to notarise an affidavit and the stamp required to show the contribution to the advocate welfare fund, for which there is no online facility, and that means the requirement of a physical paper book cannot be done away with,’’ he said.
The Supreme Court has introduced online filing of petitions or e-filing but it functions in half measure. In March, at a meeting held with lawyers to discuss the top court’s functioning in the face of a pandemic, Justice Chandrachud said the e-committee is working to make e-filing a completely online process and available 24/7.
The first step towards this goal, said advocate Zoheb Hossain, senior standing counsel at the Supreme Court for the Income Tax Department, should be to ensure off-campus accessibility for lawyers’ user accounts used for e-filing at the apex court.
The process for payment of the court fees, too, is not completely online, Hossain said. The acknowledgment of the payment of court fees is still issued by an authorised distributor, which can only be procured from the counters set up within the high court campus, he added.
“Enabling of payment of court fee directly into the relevant accounts through net banking, UPI, or e-payment using debit or credit cards would not only save paper, but also aid in making the e-filing procedure truly paperless,’’ Hossain told BloombergQuint in an email interview.
Interestingly, the move towards e-filing and a paperless Supreme Court saw important proposals in 2017 under the leadership of Justice JS Khehar.
The aim, the then chief justice said at the inauguration event, was to reach a stage where a lawyer filing an appeal against a high court order would need to provide just the grounds and case number, and the digitised records of the case would be pulled in from the respective court.
At the time, the apex court introduced a case management system called Integrated Case Management Information System, to facilitate the same. The ICMIS will ensure an absolutely transparent and accurate system which will help to avoid paperwork and save time,” Justice Khehar had said during the time.
A few courtrooms in the Supreme Court were made paperless on a pilot basis — the requirement of physical copies of fresh petitions was completely done away with and screens, with digital copies of the petitions, were installed in the courtrooms for the judges to peruse.
The idea, however, did not percolate and the court went back to using physical copies of case files.
Digitising Court Records: Work In Progress
One key reason why the idea of a paperless Supreme Court is yet half done, is the difficulty in digitising lower court records. This was revealed in a 2018 public interest litigation filed at the Supreme Court urging the court to use both sides of the paper when issuing orders.
Digitising of court records means scanning of old records and case details and uploading them onto a database.
In 2017, the then head of the Supreme Court e-committee, Justice Madan Lokur, had said the digitisation of all high court case records would be completed in a year. Three years later, it’s still work in progress.
The 14th Finance Commission had even allocated Rs 700 crore for this, the now retired Justice Lokur said in a discussion hosted by law think tank Agami last week.
While in the e-committee, we had come out with a free software and every high court was told that we will just give you the software and you upload court documents. Not even one high court took up the offer. The 14th Finance Commission is over and the money has gone back to the government.Retired Supreme Court Justice Madan Lokur (Agami discussion)
Senior advocate Sajjan Poovayya suggests that physical filings be permitted only at the trial court-level and efforts be made to digitise all the records from these courts, which can then travel up to the high courts.
“What is most important is to have a national protocol and a national filing format on how e-filing must be done so that everyone, irrespective of which court it happens, follows that protocol so that the file can easily move from trial court to the high court and then to the Supreme Court,” he said to BloombergQuint.
Interoperability of the system, Poovayya added, was very important in moving towards paperless courts at a large scale.
When It Works, It Works
In the few courts where digitisation has been successfully implemented, there are visible improvements in efficiency.
The Hyderabad High Court, for example, was the first in the country to go paperless, in 2016. A year later, data analysed by Daksh showed the number of hearings per case came down from 3.07 to 2.7.
Technology can also be used to reduce crowding in courts, especially for cases involving minor offences such as traffic violations. And courts in national capital Delhi are an example of this.
In July 2019, district courts in Delhi began virtual courts for traffic offences and payment of challans, with the first such court being inaugurated at the Tis Hazari District Court complex. Through virtual courts, all cases involving traffic violations could be disposed of by online payment of the fine, except in instances of the vehicle being impounded.
This prompted less traffic at the courts, noted Justice Lokur. Most people tend to plead guilty and pay the fine in traffic offences, he explained at the Agami event. That meant several thousand visiting court.
“Through these virtual courts you can pay the fine if you want to plead guilty and you do not have to come to court. These footfalls were eliminated,’’ Justice Lokur said.
The idea was to expand this to other petty offences liked delayed payment of house tax or late payment of electricity bills, he said. “But I find from the information available on the e-courts’ websites that apart from Delhi, Haryana, Tamil Nadu and Maharashtra, nobody has used virtual courts.”
Live Streaming Court Proceedings
Currently, the Supreme Court and other courts are only permitting few people into their premises. Parties involved in the case as well as public stakeholders such as journalists, can follow select cases via logging into the video conference facility. But in some countries, such as Canada, courts have enabled live streaming as far back as 1993.
The practice is also prevalent, in varying degrees, in Brazil, New Zealand, Israel, China, the U.K., South Africa and the U.S. Even the International Criminal Court allows for the broadcast of court proceedings.
In 2018, India’s Supreme Court, too, on a plea filed by a law student, had recommended live streaming of important and select constitutional law cases heard by the Chief Justice’s bench. This was to be done on a pilot basis, but never happened till a month ago. Since then, high courts of Kerala, Calcutta, Gujarat and Bombay have also been live streaming court proceedings.
Lawyers and policy experts say live streaming of legal proceedings will help in removing physical barriers in access to courts, reduce the crowd and congestion in courtrooms; promote better understanding, educate citizens and law students on the functioning of the courts, and result in an extension of the principle of open courts.
Senior Advocate Indira Jaising, one of those who had petitioned for live streaming of cases, moved court again in March to seek implementation of the earlier order. “Now is the time to formalise the arrangement which has been sanctioned by law,” she told BloombergQuint in an email interview. Jaising said the court was neither short of technology nor infrastructure to enable this.
I was hoping that after the top court judgment matters such as the Ayodhya hearing, the Citizenship (Amendment) Act and Article 370 cases will be live-streamed. The technology is ready and available in the Supreme Court. When I did not find any progress I moved the application in court and I have been informed that the Chief Justice will take a call on this issue.Indira Jaising, Senior Advocate
It All Started In 2004...
It took India 10 years to computerise 14,249 district and subordinate courts, under the National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian Judiciary-2005. But each court was provided just four computers. The second phase of the e-courts project kicked off in 2015 and involves allocating more computers and central filing centres, among other goals. There is no recent update available on its progress.
Lawyers say while there’s no shortage of plans, ideas or technology, to overhaul India’s judicial processes, what needs changing is attitude and execution abilities.
Senior advocate Gopal Shankarnarayan cited the 2017 effort of the Supreme Court to go paperless. “There was a glitch on day one. One person came and showed the judges how to operate the system, how to use the screen, right when a case was ongoing. That is not how it works. You need to have dry runs, trial runs and make judges familiar with the technology. Show them how it works, ensure you have protocols in place. All this has to be done and managed,’’ Shankarnarayan said.
Sajjan Poovayya, also a senior technology lawyer, said the Covid-19 crisis has shown that it is not impossible for the courts to function remotely. “There was some sort of fear or some sort of rigidity in the mind, be it off the bench or the bar, that courts mean physical courts where everybody must sit at one place and you must elevate the status to a formal level so that there is a seriousness about what is happening,” he said.
“You realise now that you can have serious proceedings and litigations pertaining to life, liberty and livelihood. This instance has taught us that the judicial system can effectively function remotely. There is no problem with it.’’ Poovayya said.