In India, wealth inequality has been sharply rising over the last three decades. In a recent report titled ‘Time To Care’ by Oxfam India, it was reported that the top 1% of the population holds more than four times the amount of wealth held by 95.3 crore people or the bottom 70% of the population.[1] This wealth inequality has become a systemic inequality, creeping into all the spheres of life including access to justice. The Supreme Court of India has regularly taken cognizance of this unequal access to justice. In the Hussainara Khatoon case, Bhagwati J. opined that the poor find the Indian legal and judicial system oppressive and heavily weighted against them. This has often fostered a feeling of frustration and despair among the poor and that they are helplessly in a position of inequality with the non-poor.[2] To add fuel to the fire, the contemporary state of the Indian judicial system is often characterized as a crippling mechanism on the verge of collapsing under its own weight. According to the statistics compiled by the PRS Legislative Institute, a non-profit organization,
“As of April 2018, there are over three crore cases
pending across the Supreme Court, the High Courts, and the subordinate courts
(including district courts). Of these, the subordinate courts account for over
86% pendency of cases, followed by 13.8% pendency before the Twenty Four High
Courts. The remaining 0.2% of cases are pending with the Supreme Court”.[3]
Inequality in such a disturbing state of affairs when seen in contiguity
with the systemic inequality prevalent in our society and the various
impediments faced by the vulnerable classes in obtaining access to justice
often echoes the immemorial Gladstonian phrase, “Justice Delayed is Justice Denied”.[4]
However, with the exponential growth of modern
technology, the long-cherished
goal of universal and equal access to justice can become a reality in the near future.
Richard Susskind in his book, ‘Tomorrow’s Lawyers’
had claimed in 2017 that the legal world would change more in the next twenty
years than it had in the past two centuries. The book attempts to provide an
insight into the future of our legal systems and discusses the promise that
online dispute resolution and virtual courts hold to the future of judiciary
all over the world.[5] It is said that opportunities often shine in the time of
crises and with the advent of the COVID-19 pandemic and the multifaceted crises
that had thus ensued, the higher echelons of our judiciary were forced to shift
to virtual courts to comply with the lockdown
restrictions that had been imposed by the central government.[6]
This article begins with a brief definition of
virtual courts and examines their legitimacy
in our legal system. This is followed by a brief analysis of the adoption of
virtual courts in India before and after the pandemic. Finally, this article
attempts to position virtual courts as a means to provide universal legal
access and discusses the potential challenges that our system could face,
moving forward.
The need for virtual courts has long been suggested as a technological
answer to the adverse consequences of the slow progress of court cases in
India. Due to the inability of the Supreme Court to constitute adequate
Constitutional Benches, important constitutional questions often remain
unanswered for long periods of time.[7] Virtual courts often employ a host of various software in
an attempt to eliminate the requirement of human presence in the court and attempt to create a remote working system. The Parliamentary
Standing Committee (hereinafter, referred to as PSC) on Personnel, Grievances,
Law and Justice in its 103rd report which was tabled on 18th September 2020, in
defining virtual courts observed that, in
Virtual Courts, plaint and other documents such as Vakalatnama are filed
electronically, arguments are heard over video-conferencing/teleconferencing, evidence is submitted digitally, thus transforming the
documentation, evidential and procedural mechanisms.[8] A fully functional
virtual court aims to organize the entire gamut of
the legal procedures online from start to
finish.
The legality and constitutional validity of the
virtual courts have often
been a topic of great debate since no report of the Law Commission or
legislation has defined it. The apex court in its decision in the case of Rama
Rao[9] held that a wider
interpretation to the definition of ‘Courts’ under Section 3 of the Indian
Evidence Act could be given to them. Since ‘Virtual Courts’ imply a virtual
judicial forum where litigants and lawyers are not required to be present
physically, these ‘Courts’ can very well come within the meaning of Section 3
of the Indian Evidence Act.[10] The PSC in its
report also concluded that the courts by virtue of being a government entity
comprising of one or more judges and dealing with the administration of justice
are more of a service than a place.[11]
The Supreme Court of India has often been the
harbinger of positive change in improving the administration of the judicial
system in India. It has time and again stepped up to any challenges in its
quest to dispense justice and has often adopted the use of modern technology to
that end. In the case of the Salem
Advocate Bar Association, Tamil Nadu v. Union Of India[12],
it took a broad view of the provisions of the Code of Civil Procedure, 1908 (hereinafter,
referred to as C.P.C) and allowed
the use of electronic media at the evidence stage. In the same year, the court
in its landmark decision while interpreting the provisions of the C.P.C dealing
with the examination of witnesses (“the court or the Commissioner, ‘shall
record evidence either in writing or mechanically”)[13] held that the word
mechanically indicates that evidence can be recorded with the help of
electronic media including audio or audio-visual apparatus and thus allowed the
use of video conferencing for
recording evidence in a criminal trial.[14] In 2005, the e-Committee of the Supreme Court of India, with a vision to
transform the Indian judiciary, enabling courts to implement Information
and Communications Technology (hereinafter referred to as ICT) laid down the ‘National Policy and Action Plan for
Implementation of Information and Communication Technology (ICT) in the Indian
Judiciary’ (2005). [15]
Further, in an endeavor to transform the huge quantum of case data that it had
been electronically generating for a few years, the Supreme Court decided to
proceed to the next step. This entailed the conversion of these raw data into
information and ultimately knowledge. This was achieved by the creation of the National Judicial Data Grid (NJDG) which was
formally launched in September 2015 to the general public.[16] The Supreme Court further in 2016, upon hearing a writ
petition, stated that in a scenario where both the parties consent, family
courts can allow the use of recording and broadcasting of the court
proceedings.[17] On 26th July 2019, Delhi’s first virtual court was launched
at the Tis Hazari Court. After that, On 17th August 2019, the Punjab and
Haryana High Court introduced the virtual court at Faridabad which dealt with
the traffic challan cases of Haryana. This project was launched under the
guidance of the E-committee of the Supreme Court of India.[18]
On 26 November 2019, during the occasion of the
Constitution day, the President of India, unveiled an application called
'Supreme Court Vidhik Anuvaad Software’. This application had the capability of
translating english judicial records into nine
vernacular languages and vice versa.[19]
During the pre-COVID period, Virtual Courts had
primarily found their
application with respect to conducting remand matters to prevent the movement
of prisoners between Courts and jails. The PSC observed that virtual court facilities
have been operationalized between 3240 Court complexes and corresponding 1272
prisons. Legal sanctity has been given
to videoconferencing by the Supreme Court by an overarching order invoking
Article 142 of the Constitution of India passed on 6th April 2020[20]
which covered all the High Courts in the country.[21] In the same Suo Moto
hearing, the order which was passed by a bench comprising of Bobde J. along with
Chandrachud J. and Rao J., the court discussed the robust infrastructure that had
been developed through the e-Courts Integrated Mission Mode Project (e-Courts
Project) as part of the National eGovernance Plan (NeGP). The order also
highlighted the availability of ICT-enabled
infrastructure across all courts including at the level of the district courts.
In the wake of a global pandemic, virtual courts now seem to be
the only beacon of hope to prevent an already dysfunctional justice system to
be massively overwhelmed. While the annual increase in the pendency of cases
used to be around 4.7 lakh cases, it went up to 51 lakhs for the year 2020.[22] However, a blind
acceptance and adaptation of virtual courts would negate the multiple
challenges that India faces in its pursuit to digitize every aspect of the
judicial framework. The first concern is regarding whether the existing
infrastructure is capable of ensuring data privacy and data security. This
issue becomes more precarious when the data concerns certain categories of
sensitive crimes like those involving the allegation of rape, sexual assault,
and crimes under the Protection Of
Children from Sexual Offences Act (POCSO), 2012 and
the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 (hereinafter, POSH)
wherein the protection of the identity of the
victim is of paramount importance. Quicker and holistic adaptation of robust
indigenous hardware and software is one of the solutions prescribed in the PSC report. The second concern is whether these virtual
courts are in consonance with the open court principle as given under Section
327 of the Code of Criminal Procedure.[23]
The importance of a public trial in courts as being quintessential to foster a
healthy administration of justice was laid down by the Supreme Court in Naresh Shridhar Mirajkar v. State of
Maharashtra.[24] However, the Supreme Court in Swapnil Tripathi v Supreme Court of India had observed the
significance of live streaming as an extension of the principle of open justice
and open courts. The Supreme Court had
observed that live-streaming has the ability to reach a wide number of
audiences with the touch of a button. Additionally, It also enables litigants
and members of the public to have a virtual experience of courtroom proceedings
even outside the courtroom premises. Thus,
live-streaming court proceedings would reduce the public’s reliance on second
hand narrative regarding important judgements of the court and would inject a
radical immediacy into courtroom proceedings.[25]
Finally, the digital divide that our country faces can
become the biggest impediment to the universal adaptation of virtual courts in
our country. This digital divide prevents universal access to justice and
exacerbate the existing social and economic inequalities. The role technology
plays in income and wealth inequality is complex and contested.
While adoption of technology has the potential to level the playing field among
the marginalized sections, it can also become a
driver of income and wealth inequality because of its skills-bias nature and
because innovators can capture high rents.[26]
And thus, when access to justice is incumbent on access to internet and possession
of smart devices (like accessing digital cause-list or participation in fully
virtual arbitrations), the vast population of our country that still do not
have access to the internet would face being excluded from the justice delivery
system. This
divide further manifests itself in the form of:
1.
Skill divide: Advocates and litigants throughout the country and especially in lower courts and rural areas have difficulties
in grasping the technological know-how required to seamlessly participate in
the framework of virtual courts. Furthermore, there is a huge lacuna in the ability of trained paralegal staff to maintain e-Records, do e-filings etc.
2.
Access divide: India
suffers from poor electrical connectivity and
infrastructure including pieces of equipment,
which are essential to be a part of the virtual court environment. According to the 75th round of National Sample Survey conducted
between July 2017 and June 2018, just 4.4 rural households have a computer,
against 14.4 per cent in urban areas, with just 14.9 per cent rural households
having access to the internet against 42 per cent households in urban areas.[27]
This access divide thus manifests itself into a connectivity problem which is unfavorably
skewed towards the poor and marginalized sections of the society who have
already been underrepresented in the judicial forums of our country.
CONCLUSION
The constitution of India which had enshrined
the cherished values of fundamental rights has been subsequently expanded to meet the aspirations of a
growing nation. In light of this, the Supreme Court of India has held that
universal and uninterrupted access to justice forms part of the rights
guaranteed under Article 14 and 21 (Anita
Kushwaha v. Pushap Sudan).[28] The Covid-19 pandemic has altered the basic
structure of life in all its aspects. Responding to the challenge of providing
legal access during the pandemic, The Supreme Court observed that, “The
challenges occasioned by the outbreak of COVID-19 have to be addressed while
preserving the constitutional commitment to ensuring the delivery of and access
to justice to those who seek it.”[29]
While on the one hand, the chairman of the
Supreme Court E-committee
Justice DY Chandrachud has claimed that the Supreme Court of India has truly
become a National Court because of virtual hearings. (Jain, 2021)[30]
and a group of lawyers have simultaneously filed a writ petition for a plea to
declare virtual court hearings as a fundamental right[31], the existing challenges to
its equitable widespread adoption throughout the country remains a tricky
challenge. Thus while the future remains uncertain, a blend of virtual and
physical hearings and the curation of a hybrid mode of justice delivery remains
our best bet to realize the long-cherished
goal of universal access to justice.
About
the author:
Parth Singh is a first-year law student at the Faculty of Law, University of Delhi. He has an undergraduate degree in Economics and International Relations from Shiv Nadar University. He is interested in issues related to technology, climate change, and international law.
[1] Oxfam India, “Time To Care”, (January
2020). Retrieved from https://www.oxfamindia.org/
[2] Hussainara Khatoon & Ors. Vs. Respondent: Home Secretary, State Of
Bihar, Govt. Of Bihar, Patna (1980) SCC (1) 81.
[3]https://prsindia.org/policy/vital-stats/pendency-casesjudiciary#:~:text=As%20of%20April,the%20Supreme%20Court. (Last Visited: 25th September 2021).
[4] According to Yale Law Librarian, Fred R. Shapiro,
the saying has been found in different semantic forms dating back to the 15th
Century A.D. However it is mentioned in an 1842 issue of the Louisiana Law
Journal.
[5]Richard Susskind, Tomorrow's lawyers: An introduction to your future. (Oxford
University Press, 2nd edn. ,2017).
[6] [IN RE: GUIDELINES FOR COURT FUNCTIONING THROUGH VIDEO CONFERENCING DURING COVID-19 PANDEMIC, 2020 SCC OnLine SC 355, order dated 06.04.2020].
[7] Pratik Dutta, Mehtab Hans, et al, “How to Modernise the Working of Courts and Tribunals in India”, National Institute of Public Finance and Policy, Working Paper No. 258, (25th March,2019).
[8] Rajya Sabha, Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, “103rd Report on Functioning of Virtual Courts/Courts Proceedings through Video Conferencing” 3 (Sept. 11, 2020).
[9] Rama Rao v. Narain, AIR 1969 SC 724.
[10]Harikumar Pallathadka, “Analysis Of The Scope Of India's Virtual Court Hearings”. 7(08), European Journal of Molecular & Clinical Medicine, 2020
[11] Rajya Sabha, Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, “103rd Report on Functioning of Virtual Courts/Courts Proceedings through Video Conferencing” 3 (Sept. 11, 2020).
[12] (2003) 1 SCC 49.
[13]Civil Procedure Code, 1908 (Act 05 of 1908). Order 18 Rule 4(2),
[14] State of Maharashtra v. Dr. Praful B. Desai (2003) 1 SCC 49, para 19.
[15] E-committee, Supreme Court of India, “Information and Communication Technology in Indian Judiciary”.
[16]Atul Kaushik, “Bringing the ‘E’to Judicial Efficiency: Implementing the e-Courts System in India.”, State of the Indian Judiciary-A Report by DAKSH, (2016).
[17] Swapnil Tripathi v Supreme Court of India (2018) 1 SCC 1.
[18] Papiya Golder, “ Future of Virtual Courts in India Post Pandemic: An Analysis”.7(2) IJRAR-International Journal of Research and Analytical Reviews (IJRAR), 982-987,(2020).
[19]Anku Anand,“Virtual Courts: The Changing Face of Indian Judicial System”,(2021)
[20] [IN RE: GUIDELINES FOR COURT FUNCTIONING THROUGH VIDEO CONFERENCING DURING COVID-19 PANDEMIC, 2020 SCC OnLine SC 355, order dated 06.04.2020].
[21] Rajya Sabha, Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, “103rd Report on Functioning of Virtual Courts/Courts Proceedings through Video Conferencing” 3 (Sept. 11, 2020).
[22] Shailesh Gandhi & Arun Joshi,“Justice delivery system is headed towards a disaster. Judges must take responsibility. Here’s what they must do”, Times of India, 22nd June, 2021.
[23] Code of Criminal Procedure, 1973 (Act no.2 of 1973) ss.327.
[25] Swapnil Tripathi v Supreme Court of India (2018) 1 SCC 1.
[26] UN Economic and
Social Commission for Asia and Pacific, Inequality
In Asia and The Pacific In The Era Of The 2030 Agenda For Sustainable
Development, ST/ESCAP/2836, Ch-04, 65 (07 May 2018).
[27] See “ COVID-19 lockdown HIGHLIGHTS INDIA'S great digital divide”, Down To Earth.
[28] Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509.
[29][IN RE: GUIDELINES FOR COURT FUNCTIONING THROUGH VIDEO CONFERENCING DURING COVID-19 PANDEMIC, 2020 SCC OnLine SC 355, order dated 06.04.2020].
[30] Mehal Jain, “Supreme court of India has truly become a national court because of Virtual Hearings: Justice DY CHANDRACHUD”. Live Law, September 11 , 2021
[31] All India Association of Jurists and another v. High Court of
Uttarakhand and others, 2021.
Comments
Post a Comment