By: Aditya Sethi and VS Pravallika
The global pandemic has compelled the Indian judiciary to devise new ways to ensure that the constitutional responsibility of justice dispensation continues. The judiciary intends to realise the strength of technological advancements as a potent tool, both for ensuring access to justice in the times of need and to reduce the burden of pending cases.
The Supreme Court of India had recently laid down guidelines on the use of technology by courts at all levels in the hierarchy to respond to the call of social distancing. The Court made important observations to the effect of building capacities and capabilities to determine the modalities which would enable the transition towards the use of video conferencing technologies. The Court also reflected on the prospect of institutionalising technology in the court process from a futuristic perspective.
It is in this context that this article would discuss the nuances of shifting towards virtual courts, issues and challenges in the process and steps that would help in embracing the much-required change.
THE PRESENT STATE OF AFFAIRS
On 26 November 2019, the President of India launched the ‘Supreme Court Vidhik Anuvaad Software’, an application that is capable of translating English judicial documents into nine vernacular languages and vice versa. The Official Multilingual Mobile App of the Supreme Court of India would also be launched which would provide authentic real-time access to case status, display board, daily orders, judgments to litigants and lawyers. Chief Justice SA Bobde has vouched for technology to be used to map areas of marginalised sections of the society having similar legal issues to bring out relevant statistics, and further help the judiciary in formulating a strategy in providing timely and effective justice to the needy. He has further augmented the need to develop a system of Artificial Intelligence with the specific intent of preventing an undue delay in the justice delivery system.
The Delhi District Courts in 2019 introduced the virtual court system to be specifically utilised for payment of traffic challans by the litigants. It was soon realised to be a potent tool since the number of litigants approaching the courts reduced significantly. Recently, Justice Chandrachud in his interaction with the Chairpersons of e-committees of various High Courts directed that capacities be developed to use the system for other petty violations.
To this effect, it becomes important to highlight the models established by various legal tech incubators like Centre for Online Dispute Resolution and SAMA to accentuate the process of providing affordable and easy access to justice through an online medium. NESTAWAY, a rental app, widely used by over 75000 tenants uses the services provided by CADRE to resolve disputes relating to non-payment of rent by appointing an arbitrator who provides a binding decision to parties within 20-25 days.
It is also important to take into account the existing resources under the e-courts project which perhaps have been unutilised. The e-filing manual provides for the complete process of how records at the District Courts level could be digitised. Justice Madan Lokur, on record, stated that the XIV Finance Commission had allocated a sum of Rs. 700 Crores to develop a common software for the purpose of case and court management. Various state governments had been urged to sanction money in this regard, but not much has seen the light of the day.
The e-payments gateway allows the litigant to make online payment of court fees. The National Service and Tracking of Electronic Processes provides transmission of processes to different court complexes and also to the mobile application of the court officer. The process is GPS enabled and provides the photograph and signature of the relevant stakeholder after the service is provided. There also exists a facility for informing litigants about the status of their case through emails or text messages. In 2019, a report was published by the E-Committee stipulating that about 600 filings were done through the e-filing module in the High Courts of Punjab and Haryana and only about 50 e-filings were done in the Delhi. The reasons for this abysmal record were non-friendly user interface and lack of training in operating these portals.
ISSUES AND CHALLENGES
Non-Accessibility Of Resources
It may be argued that internet penetration in the rural areas of India is extremely low and the population having access to technological resources is also minuscule. It is imperative to consider that many e-seva kendras have been established which can provide information to every litigant on the status of their case and related queries therein. However, if a move towards online courts is to take place, then the government will have to ensure that there is adequate internet facility available in every district in the country, considering the fact that major litigation takes place in lower courts. Also, the government must plan on developing infrastructure where a specific number of labs with trained staff and computers could be set up in proportion with the population of a particular district.
Lack Of Infrastructure
While arguing from the perspective of infrastructural requirements, it is important to account for certain interoperable factors. The most important aspect is that of the bandwidth. The judiciary may also be averse to the idea of using a software regulated by a third party owing to concerns of breach of data privacy. To this effect, the government will have to take the onus to come out with a significant policy regulating both these aspects. Some jurists have argued for a national protocol to be formulated which would be uniformly used by all the courts in the country. Additionally, to reduce administrative constraints of documentation, there must be a common software that ought to be available to both the lawyers and the court registries.
Open Access to Proceedings
In the present circumstances of the pandemic, the courts have not allowed the public to witness the proceedings. The efficacy and importance of open trials for upholding the legitimacy and effectiveness of the courts for enhancing public confidence are paramount to justice dispensation in India. To this extent, the Supreme Court in Swapnil Tripathi v Union of India categorically laid down guidelines on live-streaming of court proceedings. These guidelines must be implemented by the relevant authorities at the earliest. The Supreme Court has intended to permit webcast of proceedings through a password protected link which would be generated by the Supreme Court office. This would, however, provide access to a limited number of people having the password to the link. Going forward, the government must while developing digital software take this aspect into account of how people who want to witness the proceedings may be enabled through open access. The Indian courts can take specific reference from the Coronavirus Act, 2020, in the UK, which provides provisions for broadcasting and recording of court proceedings through video-conferencing.
The Law Commission must constitute a high-powered committee to be headed by the present or former Chairperson of the e-courts project and include reputed technology lawyers, Registrar of the Supreme Court (IT) and technology experts to understand the feasibility of shifting to a digital medium. In the UK, the Office of the Chief Executive and the Board have been guiding Her Majesty’s Courts and Tribunals to bring significant reforms to intertwine technology within the functioning of the judiciary. Similarly, in 1990, the Supreme Court of Singapore began the integration of technology into the judicial system which was supported by the judges, the Bar and various technology experts.
It is important that law students must be imparted with practical technological skills required in the legal practice. Therefore, requisite changes must be made in the course curriculum of law schools. Similarly, the National Judicial Academy must also aim to equip future judges with the skill set to deal with technological advancements. Efforts must be made to collaborate with Online Dispute Resolution platforms to provide the judiciary with a more suitable technological framework until a formal mechanism is developed.
Categorisation of Cases
Efforts must be made to categorise cases according to their nature, volume and time taken for disposal. Cases which are mechanical and require a limited amount of advocacy must be resolved through online courts. Also, certain categories of cases could be resolved using ADR methods, for e.g. cases of negotiable instruments and land-related conflicts could be referred for pre-litigation mediation. The Supreme Court of Singapore is adjudicating upon motor vehicle and e-commerce claims through video-conferencing. In China, ODR mechanisms are being used to adjudicate on domain name disputes. The courts are utilising Artificial Intelligence and blockchain for resolving disputes.
To formalise the transition towards virtual courts, the Legislature must take necessary steps to bring about legislation specifically dealing multifarious issues of data privacy, open justice, accountability, reduction in delays etc.
The challenging times of the pandemic have dawned upon the realisation that it is imperative to re-define the contours of modern and effective lawyering. The transition towards the digital medium would entail multiple advantages. These would include the elimination of locational constraints, reduced outstation travel of instructing counsels, client conferences could be held online, no outstation appearance of counsels in courts, less investment in real estate for court infrastructure. etc. This transitional process should ensure that there are specific timelines stipulated for a particular case and emphasis be placed on the brevity of written and oral submissions by counsels. A large portion of lawyers is likely to be averse to adapt to the new change owing to apprehensions of losing self-representation in the system. This requires a mindset change for all the relevant stakeholders in the legal community. More so, a uniform consensus must exist within the legal community that such a transition would be beneficial for the judicial system as a whole. The intent and ultimate aim of this exercise should be to augment access to justice to those in need and also help the judiciary to reduce the burden of pending cases.
(Aditya and VS Pravallika are currently law undergraduates at School of Law, Christ University, Bangalore. They may be contacted at firstname.lastname@example.org.)
Cite as: Aditya Sethi and VS Pravallika, ‘Virtual Courts: Is it Time to Embrace the Much-Required Change in India?’ (The RMLNLU Law Review Blog, 24 May 2020) <https://rmlnlulawreview.wordpress.com/2020/05/24/virtual-courts-is-it-time-to-embrace-the-much-required-change-in-india> date of access.