This article has been written by Tanvi Chopra, from School of Law, Bennett University and Ananya Shukla, from Chanakya National Law University.
Table of Contents
Introduction
“Law and technology produce, together, a kind of regulation of creativity we’ve not seen before.”
—Lawrence Lessig
Ever since the advent of the era of the Internet, a new question has started to emerge with respect to the concept of internet access as a right. People have started to advocate their voices about the importance of this as a right. With respect to the recent pandemic, the internet has become the medium of work and the source of every essential thing, including the courts. With the rapid evolution of technology and the Internet playing a pivotal role in this change, a question arises, whether internet access is a basic right, and whether or not the state can impose restrictions on the use of these services. In 2016, the United Nations declared access to the internet as a basic human right.
The web plays a very important role not only because of its information and vastness but also because it has the potential to change the world. It is a part of a decent living standard and could serve as the key to protecting other fundamental rights. Since the outbreak of COVID-19, internet services have provided the comfort of working from home to billions of people. While virtual courts have indeed emerged as a solution to render justice in times of the pandemic, there arises a problem with respect to the accessibility of internet services and a bandwidth of network that can enable and ensure smooth functioning. Keeping in mind Article 39A of the Constitution, it does seem this shift to virtual courts will ensure a wider implementation of this Directive Principle, however, statistics suggest that nearly 72% of India’s population does not have access to the internet.
Access to internet
Against the background of the importance of the role that the internet plays in the 21st Century, many countries and international organizations have committed themselves to develop widespread use of the internet and granted the status of a basic right to internet access.
In India, there are certain rights that are guaranteed to every citizen in the country, and these rights are meant to be protected by the state. The Kerala High Court recently held that the right to have access to the internet is part of the Fundamental Right to Education as well as the Right to Privacy under Article 21 of the Constitution. In 2020, the Supreme Court in the case of Anuradha Bhasin & Ors v. Union of India has delivered a judgment that concerns citizen’s right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under Article 19(1)(g) of the Constitution of India, using the medium of internet.
The apex court in this case held that “the freedom of speech and expression through the medium of internet is an integral part of Art 19(1)(a) and any restriction on the same must be in Accordance with Art 19(2). The freedom of trade and commerce through the medium of internet is also constitutionally protected under Art 19(1)(g) subject to the restrictions provided under Art 19(6)”.
This gave rise to the question that whether this Right to Internet Access has been granted the status of a fundamental right in our country, the apex court has not expressed its views with respect to its status as a fundamental right. However, it can be said that the right to the Internet has acquired the status of a derived right within other fundamental rights.
This status is not attributed to it because of its significance or authority but because of its connection to a primary right. A number of Rights under Article 19 and 21 have become intertwined with Internet Access, and it will suffice to say that in the absence of such accessibility, the citizens may be deprived of their enjoyment of the same.
The internet has become essential to every aspect of an individual’s life and has also become a condition precedent to many Directive Principles as enlisted in our Constitution. In addition to the judicial system, the government also recognizes the importance of Internet Access in the present era. The Digital India Programme has nine pillars, out of these, six relate directly to internet access. Further, there are various initiatives being run by the government that focus on infrastructure development. While these initiatives do not grant a position per se, however, it shows the state’s intention concerning the same.
Digital courts
Due to the widespread epidemic caused by the novel Coronavirus, the justice delivery system has been affected like never before. Taking into consideration the ‘social distancing’, there has now been a digital conversion of court proceedings in the country. The Supreme Court invoked its powers under Article 142 of the Constitution and gave directions regarding the conduction of court proceedings through video conferencing. The court ordered the state officials of the National Informatic Centre (NIC) to liaison with the High Courts of the respective states to formulate a plan for virtual conduction of the court proceedings. Further, the Supreme Court also directed that district courts will also follow the virtual system under the directions of the respective High Courts.
The trials that were earlier being conducted with all the involved people in the courtrooms are now being carried out digitally through video conferencing. This was a major decision to be taken to ensure the safety and health of the advocates, judges, parties and all the members involved in the process. Accessibility of the internet is one of the major requirements for conducting all the proceedings through video conferencing.
It is believed that for the successful functioning of virtual courts, there needs to be the setting up of legislation backed authority to ensure the best of technology and the best of minds have a way of working for the unique needs of a complex system such as the judiciary without compromising on judicial independence.
Arguments for and against digital courts
There have been many opinions regarding the digital shift of court proceedings, both in favour and against the continuance of this practice. The Bar Council of India (BCI) addressed a letter to the Chief Justice of India mentioning that this practise should be stopped because the majority of the lawyers and judges are unaware of the technology and its nuances which is causing disturbances while conducting the trial virtually. On the other hand, it was also believed that this would not only reduce the costs that were incurred in face-to-face trials but will also diminish the long waiting hours for the people who come for their trials. It is a benefit to all, the advocates, judges and the parties of the case.
“The beauty of technology is that it is complex for the person who designs it, but is user friendly,” said Justice Chandrachud. He further added that though the process has some technical glitches and bandwidth issues, it has also contributed in ease of doing business. He also states how he attended a video conference for two continuous hours and lawyers told him that this system of conducting proceedings is more disciplined and orderly and the technical glitches can be stabilized. The lawyers and judges of our country are accepting this method and are gradually becoming comfortable with this system as this is the best that could be done in such challenging times.
Current situation
Delhi High Court, being the most advanced High Court in the country in terms of technology, had already started using an E-filing system even before the pandemic. They had set up kiosks at various locations in the court so that the lawyers get an idea of how the e-filing centres work. It consists of the signature of the lawyer/judge and e-filing is done at specific e-filing centres. 10 courts of the Delhi High Court already used an electronic system of proceedings and since the condition of the COVID-19 pandemic is far from over, they are still following the same system and are conducting the proceedings smoothly.
A total of 87 benches heard 593 cases in 17 working days between March 23 and April 21, according to the data given by the courts.
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Analysis
Even though these measures are taken properly ensuring safety and securing of people, putting in maximum efforts to follow a fair justice system using technological means but it is insufficient as compared to the actual court system. Fundamental reasons why this measure is considered to be insufficient in the country are as follows:
- The virtual system of functioning has not been expanded to all the judicial institutions in the country.
- The courts which have shifted to virtual court proceedings are handling mostly urgent matters at priority and some other matters are being given a later trial date.
The right to a speedy trial is a fundamental right provided to every citizen of India under Article 21 of the Constitution. Due to the nationwide pandemic and virtual shift of court proceedings, the right to a speedy trial was affected by a lot of people whose cases were not heard and conducted and were postponed because most urgent matters were only conducted through the virtual system. But these measures are taken to safeguard the health of people and not put a risk to any citizen’s life. Therefore, it should not be considered to be a violation of the right under Article 21.
Digital NI Act Courts
A recent development has emerged in conducting virtual court proceedings in India as the Delhi High Court has rolled 34 Negotiable Instruments Court digitally. The State Court Management system committee (SCMSC) of the Delhi High Court has conceptualised this project for setting up Digital NI Courts at District Court Levels on the directions and orders of the honourable Chief Justice D.N. Patel.
This step has been taken by the honourable court in order to ease the conduction of proceedings under the Negotiable Instruments Act, 1881. Due to a large number of payments being done through cheques as a mode of payment, complaints under Section 138 of the Negotiable Instruments Act are filed in large numbers which makes it very difficult for the courts to handle such matters in such large numbers within a reasonable time. To handle these cases within a reasonable time without delay, there needed to be enhanced technology along with the existing legal framework so that justice is served well.
The Hon’ble Supreme Court in M/S Meters and Instruments v. Kanchan Mehta observed, “There appears to be need to consider categories of cases which can be partly or entirely concluded “online” without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated. Traffic challans may perhaps be one such category. At least some number of Section 138 cases can be decided online”.
In the same judgement, it was also stated that if the complaint can be filed online with the required documents, the process can be initiated online and the parties can make the required payment online, it will eliminate the need for physical presence of parties during hearing of these NI cases and the NI Courts can be conducted online to ease the procedure and avoid overcrowding.
Earlier this year, the hon’ble Supreme Court in the case of Makwana Mangaldas Tulsidas v. State of Gujarat issued certain directions regarding digital proceedings of NI Courts in India. Some of the directions issued were, the High Courts should consider exclusive and separate setting up of NI Courts, use of modern technology for paperless courts, formulate special assessment norms for these exclusive courts, etc.
‘Justice delayed is Justice Denied’. Implementation of these directions and orders of conducting exclusive digital proceedings for the NI Courts will provide a means of easy access to justice. Since there is an overcrowding of cases under Sec. 138 of the NI Act, most cases are delayed. This is a step taken to prevent delay in justice and serve the society and the people in a better, faster and easier method.
Against the backdrop of these judgments, the Delhi High Court issued the guidelines for the establishment of Digital NI, which will be responsible for trying and disposing of all complaints filed under the NI Act from 17.11.2020. The entire process will be conducted digitally and the proceedings will take place by way of video conferencing. The concept of these digital courts has the following features:
Mandatory e-Filing of NI Act Complaints
The complainants will mandatorily file their cases on the e-filing portal of the e-committee of the Supreme Court. The e-Sewa Kendra in District Courts will have dedicated facilitation centres for cases under NI Act and provide all necessary help.
Consumption of e-Filed NI Act Complaints by CIS 3.2 of NIC
The CIS 3.2 of the NIC will consume these cases and allot them a 10-digit number.
LAYERS 2.0 to maintain Repository of Data of all e-Filed NI Act Complaints
The cases will be saved akin to a physical file and the IT Team of the District Courts will be responsible for maintaining the repository. The CIS 3.2 will consume the cases and they will be maintained in LAYER 2.0.
Digital NI Act Court POs can access the e-Filed NI Act Complaints from LAYERS 2.0
The cases will be accessible through secured login credentials given to MMs and Ahlmads/Readers for day-to-day administrative and judicial work.
Advocates and Litigants to be provided access to Digital NI Act Files
The advocates and the litigants will be able to access a mirror image of the case files through a dedicated, secured and non-transferable link uploaded on the drive.
Hearing of Case before Digital NI Act Court
The digital courtroom will be accessible to the parties though two links, namely:
- Permanent Video Conferencing (VC) Court link on Cisco Webex (to be published on the website).
- Permanent Digital File link on cloud accessible through the internet (to be shared with concerned Advocates and Litigants by the Court).
Safekeeping of original documents and complaint
Once a complaint has been allocated to a digital court, the complainant is to submit all the necessary documents at the stage of cognizance. These documents include the dishonoured cheque/s, dishonour memo, Legal Demand Notice, dispatch receipt and service proof, reply if any etc. apart from the physical signed original complaint, its supporting affidavit and attested affidavit of pre-summoning evidence. They will be submitted to the Ahlmad of the concerned court and keep them in safe custody. Such deposit of documents is a prerequisite for passing an order.
Mandatory filing of NI Act Complaint META Data Form
After the stage of cognizance, the complainant’s lawyer will be required to fill up a mandatory META Data Form. The data collected using this form will be used for maintaining a database for equipping AI-tools to identify, club or bunch similar cases as legal research and assist in timely disposal of complaints.
Preparation and signature of Order Sheets/Misc. Orders
The Order sheets will be dictated by the Magistrates and typed by the stenographer, then signed by the magistrates and be uploaded on Cis 3.2, maintained in the folder in the LAYER and the mirror image of the order sheet will be accessible to lawyers and advocates through the drive.
Updation/filing of additional documents in the digital case file
The lawyers can continue the filing of additional documents through the e-filing portal or they can e-mail such documents directly to the court’s email address. The court staff will also have access to uploading or scanning any additional documents.
Conclusion
Keeping in mind the necessary role being played by the Internet in the current times, it becomes indispensable that it is given a status that is harmonious with the service that it renders. To achieve a truly Digital system, it is necessary that active steps are taken to promote better accessibility and high-tech infrastructure, so that those residing in even the remotest parts of our country can enjoy this privilege. The shift to the virtual world indeed ensures easier access to all spheres of life, from education to the judicial system, and it becomes viable that it is preceded by better connectivity and accessibility.
Even though we have conflicting reviews and opinions on conducting court proceedings virtually, it is the best possible way for the justice delivery system to be shifted to online means during such challenging times. Access to the Internet and Right to Speedy Trial are two rights provided to the citizens of our country and this virtual practice contributes to the fulfilment of one of the fundamental rights through the other, i.e. the right to a speedy trial is being fulfilled with the help of internet accessibility even in the situations where the people are unable to go to courts. In the comfort of their homes, keeping safety and health at a priority, people are having their trials and getting justice using technology, internet per se.
In the author’s opinion, the conduction of court proceedings through video conferencing should be continued in the country as the situations and the conditions are still nowhere near normal and the health of the citizens should be kept a priority. People are having negative and opposing views for virtual proceedings on comparing this system to the regular justice delivery system prevailing in the country, but this is the best way to cope up with delivering justice and not violating the basic rights of the people who had their trials pending. This should not replace the open court hearings and the virtual system should go back to the regular prevailing system, but it should continue till the pandemic prevails and situations normalise.
References
- Human Rights Council Oral Revisions of 30 June, U.N. G.A., U.N. Doc. A/HRC/32/L.20 (27 June, 2016),https://www.article19.org/data/files/Internet_Statement_Adopted.pdf
- INDIA CONST. art. 39A.
- Aarati Krishnan, How many Indians have Internet?, The Hindu (March 27, 2017, 01:07 IST),https://www.thehindu.com/business/how-many-indians-have-internet/article17668272.ece
- Special Correspondent, Access to Internet is a basic right, says Kerala High Court, The Hindu (September 20,2019 12:30, IST),https://www.thehindu.com/sci-tech/technology/internet/access-to-internet-is-a-basic-right-says-kerala-high-court/article29462339.ece
- INDIA CONST. art. 19, cl. 1(a).
- INDIA CONST. art. 19, cl. 1(g).
- Ananya Chakraborty, Access to internet not a Fundamental Right, The Statesman (May 28, 2020, 12:51 IST), https://www.thestatesman.com/supplements/law/access-internet-not-fundamental-right-1502893356.html
- How Digital India will be realized: Pillars of Digital India, Digital India (last visited August 29, 2020, 9:30IST), https://digitalindia.gov.in/content/programme-pillars
- Deepika Kinhal, Ameen Jauhar, Tarika Jain, Vaidehi Misra, Aditya Ranjan & Chitrakshi Jain, Virtual Courts in India: A Strategy Paper, Vidhi Centre for Legal Policy, (May 1, 2020), https://vidhilegalpolicy.in/research/virtual-courts-in-india-a-strategy-paper/
- K. Subramanian, The epidemic and ensuring safety in courts, The Hindu (May 11, 2020, 01:12 IST), https://www.thehindu.com/opinion/lead/the-epidemic-and-ensuring-safety-in-courts/article31552305.ece
- Ajmer Singh, Supreme Court panel builds digital module, to speed up disposal of biz disputes, The Economic Times (May 14, 2020, 01:57 PM IST), https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-panel-builds-digital-module-to-speed-up-disposal-of-biz-disputes/articleshow/75729441.cms?from=mdr
- PTI, Supreme Court heard 593 matters, delivered verdicts in 215 cases during Covid-19 lockdown, The Times of India (Apr 26, 2020, 15:11 IST), https://timesofindia.indiatimes.com/india/supreme-court-heard-593-matters-delivered-verdicts-in-215-cases-during-covid-19-lockdown/articleshow/75388840.cms
- 18 Latest Laws, 34 Digital NI Courts rolled out by the Delhi High Court, 18 November 2020.
- https://www.latestlaws.com/latest-news/34-digital-ni-act-courts-rolled-out-by-delhi-high-court/
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