Judiciary

This article is written by Nishka Kamath, a student at Nalanda Law College, University of Mumbai. It analyses the approaches made by the Judiciary to shift to e-services as a means to provide uninterrupted access to justice, especially in India. Moreover, a brief discussion on the worldwide scenario and major transformations and management in the judiciary is conferred below. The article will further discuss and assess the steps and the measures taken by the judiciary and the legal professionals to curb and truncate the impact of COVID-19 in the Indian legal industry. 

Table of Contents

Introduction

The world today is going through turmoil while facing the deadly coronavirus outbreak, a pandemic that has not been witnessed for hundreds of years. The entire human race seems to have reached a point of halt. But in spite of all this, one must continue to move forward in order to continue to exist. Humans are evolving by adopting innovative adjustments to fit in the ‘new normal’ and so has the judiciary. No doubt, the pandemic has raised an unprecedented challenge for the judiciary to administer the justice system, but it has also paved a path for the members of the Indian judiciary to re-conceptualise the ways and the manner in which the justice system in the country operates.

Even though the steps to reform the judiciary were taken in 2005 with the foundation of the eCourts projects by the eCommittee, it is in the past few years that major progress of the judiciary to turn into a virtual workspace has been encountered. Numerous activities like online functioning of courts, virtual legal proceedings for traffic and petty offences, online payment of fines and court fees have been made possible by the constructive use of technology. The judiciary has made phenomenal progress, especially, in the Covid times, in the field of e-services and e-courts with the implementation of various plans and the contributions by the eCommittee. This has, in turn, helped to improve the efficacy and enhanced the productivity of court hearings.

There is a legal maxim ‘justice delayed is justice denied’ which doubtlessly correlates with the Indian judicial system, but in recent times, changes have been made to curb such issues. Let us have a look at all the major reformations and developments made in the field of e-services by the Indian judiciary.

Brief history and structure of the judiciary 

The Indian administrative system of justice has a background of over 5000 years. Before independence, the courts were set up at Presidency towns by the East India Company and eventually followed by the British Parliament. Whereas, after independence, the Constitution of India was adopted and steps were taken to have a unified and integrated judiciary. However, after India became independent, the accumulation of pending cases started escalating due to reduced judicial productivity and quality of justice. This has proven to be burdensome on the judiciary, and thus, there arose a dire need for reformation. 

Need for reshaping the Indian judicial system

Due to the accumulation of pending cases, there emerged an urgent need of reshaping the judicial system, and the pandemic has proven to be a bane in bringing about these changes. Having transformed the legal system by embracing technology during this unprecedented global crisis, it is safe to say that the legal system of India has preserved the age-old custom of “Justice, at all cost, always!

Even during such difficult times, it is due to technology that there is no hindrance in the justice delivery system. To curb the effects of the global pandemic, the Indian judicial system is relying majorly on the IT-enabled virtual system and communication facilities, and despite all the hardships the virtual technology in the legal system is thriving. The adaptation of e-courts, e-services, and virtual hearings will be benchmarked as a turning point in the history of the Indian justice system.

Road to justice

Sadly, in a country like India, many citizens face issues in accessing justice. For some citizens, it is difficult to meet the expenses of reaching courts physically or possess the funds to afford a lawyer, whereas others cannot attend court due to the work they might miss during the court visit. Moreover, many courts are inaccessible for people with disabilities. And even after crossing all such barriers, if a person attends a hearing, there is always a possibility of the case being adjourned. 

This is why steps like e-courts and e-services are essential for the proper functioning of the judiciary and the administration of justice. Common citizens have the technical capacity to stream videos now, and there is no reason for a public institution like the judiciary to not bring it into play. This principle was supported in the case of Swapnil Tripathi vs. Supreme Court of India (2018), wherein it was observed that the whole of the judiciary, beginning from the Supreme Court itself, must move towards the live-streaming of proceedings. 

Even though numerous people are getting in touch with technology and other online resources, there are many who still do not have access to such facilities. The COVID-19 pandemic is the perfect time to take steps to implement and enhance e-services like videoconferencing, e-filing, and e-courts and to expand the accessibility of the internet to the under-privileged people and in those areas where internet connectivity is still an issue. Such a practice must be continued even after the pandemic abates, as this will help resolve the aforementioned issues to a certain extent and justice will be served with less hassle.

With more time and technological advancement, all these e-services can be implemented in a better way than they are now. For instance, previously the Supreme Court instructed the litigants to use the Vidyo application which raised doubts on the security and sovereignty as it was used for judicial proceedings. This application raised several “unforeseen linkage issues” possibly because the traffic on the site kept increasing. As a result, the lawyers were instructed to provide an alternative method like WhatsApp, Facetime, and Skype in case video conferencing on Vidyo did not work. E-filing, meanwhile, is carried on via email during the lockdown for which the High Court of Karnataka has provided Gmail addresses of all the district courts. 

Reformations brought by the judiciary in e-services 

“In the middle of difficulty lies opportunity.” – Albert Einstein

The deadly coronavirus has affected the Indian legal system like never before. Several judicial officers and members of the staff have tested positive for the deadly coronavirus and many have succumbed to this fatal disease. It has cast a harsh light on the outdated way in which justice is delivered, the law is taught and legal services are delivered. This virus has paved a path for making use of the IT-enabled tools and alternative work models which were long resisted by the legal industry in India. 

Modern ways of working like work from home culture, remote work, etc. have been accepted at a striking speed and effortlessly. From filling cases in courts to e-filing, from hearing cases in-person to hearing them via videoconferencing, from offline payment of court fees and fines to doing it online, from courts to virtual courts, everything has been revamped, and we can safely say that there are changes in the judicial system as well, and that, it has reformed from delivering justice to delivering e-justice. 

Following are some of the major reformations brought in e-services by projects undertaken by the e-Committee and the Department of Justice –

Virtual court system

The regular court proceedings in our Indian courts in such unprecedented times are either being adjourned or have been carried out virtually via videoconferencing. Considering the present times, litigants have the facility to file plaints electronically via e-filing and also make payments of court fees or fines online via the link provided on the website of virtual courts. Moreover, the media is provided with a special facility for observing case proceedings held by the bench(es). 

A note must be taken that the concept of a ‘Virtual Courtroom’ is not new in India. In the case of State of Maharashtra v. Prafull Desai (2003), it was held that recording of evidence by a court via videoconferencing shall be considered to be ‘as per the procedure established by law’. From that point forward, many courts in India have formulated various guidelines in this respect and have held judicial proceedings via video conferencing. 

eCourts portal

With the launch of the eCourts portal, one can easily view the status of cases, cause lists, judgments, daily orders, etc. It is a one-stop solution for all stakeholders like the litigants, advocates, government agencies, police, and common citizens. Any citizen can check the status of the case arising from any court across the country by using the search criteria option provided on the website. Its benefits are as follows:

Bilingual

This portal is designed in a way that uses multiple languages. The application is implemented in English and local language scripts like Devanagari, Kannada, Tamil, Gujarati, etc. for the ease of advocates, litigants and citizens across states. This will help in proliferating the reach of legal news and in promoting legal awareness without language posing as a hindrance.

User friendly

With this portal, an individual can easily avail of such services with ease. One of the main objectives of this portal is to provide efficient and time-bound citizen-centric service. 

Single unified portal 

This portal is a consolidation of all the portals across the country.  

Quick delivery of court services 

Case status, next hearing date, cause lists, orders, and judgments can be delivered quickly. 

Easy and  efficient access to case information

Case information can be accessed easily and efficiently anytime, anywhere.

E-filing

The COVID-19 pandemic has transformed the way evidence is gathered and passed on. Courts are promoting e-filing of cases which in turn has helped in reducing the wastage of paper which is a major environmental issue all around the globe. E-filing, also known as electronic filing, is a facility that provides filing of cases through the internet. Citizens can access this service by using the portal. A user manual and several guidelines are provided by the eCommittee for easy understanding and support of users while facilitating the use of the e-filing system. 

The present system of e-filing has various facilities like ready-made templates for easy drafting of pleadings, online submissions of documents like vakalatnama and affidavits, signing documents in electronic form (e-signatures), online payment of court fees and fines, amongst others. Moreover, this system will enable police stations all over India to e-file charge sheets and other documents related to the case. 

The system of e-filing has multiple advantages like:

  1. It has proven to be effective in saving time, money, and travel for councils and clients.
  2. Physical presence in the court is not mandatory.
  3. The case files get digitized automatically. 
  4. It has impacted the environment positively by reducing the paper footprint. 

The Supreme Court’s eCommittee has instructed all the high courts to ensure that all the petitions and cases filed by the government must be done via e-filing only from January 1, 2022. Also, physical filing of cases filed by the government will not be allowed after the date in any case. Furthermore, all the petitions, appeals and revisions against judgments/orders of the subordinate courts must also be mandatorily filed via e-filing from January 1, 2022.

ePayment of court fees and fines

Along with virtual courts, easy services for online payment of court fees, fines, penalty and judicial deposits were initiated. The official facility for making payment for Courts in India is ePay. An ePay is a system of making transitions or paying the court fees via an electronic medium, without using any cheque or cash. Moreover, ePay has a user-friendly interface that will help in making online payments simple and hassle-free. An individual will also get an instant acknowledgement of his transaction. 

Online payment can be made by the citizens using the portal. This will reduce the usage of stamps, cheques and cash. The ePayment portal is integrated with state-specific vendors like SBI ePay, GRAS, e-GRAS, JeGRAS, Himkosh, etc. 

Nowadays, it is very easy to make online payments of challans (official notice of a traffic offence) using the online portal. It is quite useful for every Indian citizen as it has many services to offer that will benefit individuals, including:

  • Paying e-challan,
  • Checking the status of a case. 

Recently, by the fear of Lok Adalat, the Maharashtra Highway Safety Portal (HSP), commonly known as the Highway Traffic Police, collected around 5.52 crore e-challan dues from 1.20 lakh motorists in a week. They paid their dues, fearing that they would have to attend court if they default to repay the pending dues. 

Here, efficient use of technology is made for providing a simple, systematic, well-organised and complete traffic monitoring system that ensures that data is shared at the national level. The system of e-challan aims to provide an ideal solution for the challenges faced by the transport department in terms of issuing traffic challans, managing records/back-end operations, tracking the history of the offences committed, payment report, etc. by using, adapting and implementing the latest technology at the ground level. Furthermore, citizens can make online payments of challans ‘anytime and anywhere’. 

Mobile application

The eCourts service mobile application provides services for all stakeholders, particularly members of the judiciary, advocates, litigants, police, government agencies and others. Services like search options for case status, cause lists, court orders can be accessed through this mobile app which is available 24×7. It also has a feature for a search option to track cases by QR code. The key attraction of this application is the option of “My cases” wherein one can bookmark/add personal case numbers and get regular updates regarding them. The calendar feature is yet another feature provided in the application where advocates can view a diary of cases listed in court. 

SMS push and SMS pull facility

SMS push 

SMS push facility is offered to stakeholders like litigants and advocates where case status like its filing, registration, adjournment, scrutiny, listing, transfer of the case, disposal, uploading of orders, etc. are sent automatically to the registered users. The registered users like the advocates and litigants receive such updates by the CIS (Case Information System) 3.0 software while using the SMS push facility. 

SMS pull

Whereas, an SMS pull facility is provided for those litigants who do not have an internet connection. The details of the case can be obtained through the SMS pull application by sending a unique CRN number (Case Number Record) to the number provided i.e. 9766899899 on the portal. The details of the case will be sent automatically as an SMS reply to the mobile user. 

Automatic email service

Litigants, advocates and police stations will receive cause lists relating to their cases, events like next dates, transfer of cases, disposal, copy of order/judgment, etc. in PDF format every day on their registered email ids. Each and every detail of the case will be automatically sent by the CIS software via email. 

National Judicial Data Grid (NJDG)

The statistics of cases pending at the national, state, district and individual court level are now made accessible to the general public, researchers, academicians and the society at large. Any individual can access this information by visiting the National Judicial Data Grid portal

NJDG has also served as a decision support system for the decisions taken by the authorities of the Supreme Court, high courts and Central and State governments for monitoring the pending number of cases and the steps to be taken to reduce the load. The cases of the remotest courts in the country can now be tracked by the management due to NJDG. As per the official website, there are 56,31,563 cases pending in the high courts and 4,01,79,235 cases pending in the district courts as of 23.10.2021. 

The benefits of NJDG are as below:

  1. Transparency is achieved while tracking pending cases on elements related to age, type of case, cause of delay, etc.
  2. The grid produces data from all the district and high courts.
  3. It serves as a national judicial data warehouse. 
  4. It delivers timely inputs for making decisions for implementing policies for the reduction of delays and arrears. 

National Service and Tracking of Electronic Process (NSTEP)

Oftentimes, the age-old method of serving summons and processes are factors leading to an inevitable delay in the quick disposal of cases. This is a mechanism that consists of a centralized process service tracking application and a mobile app for the bailiffs. This is used for quick delivery of summons, notices, processes and the reduction of unreasonable delays in process serving. The NSTEP Mobile Application provided to the bailiffs’ assists in real-time and transparent tracking of service. Once the respective court has the process published via the CIS software, it is accessible on the NSTEP web application in an electronic format. 

These processes can be accessed by the bailiffs on the NSTEP Mobile App. There are Special Personal Digital Assistants (PDAs) for the assistance of bailiffs. The bailiff, on arriving at the destination of the receiver, captures the GPS location, photo of the receiver or door lock (if the door is not opened), the signature of the receiver or the reason for no service (if the summons, notice are not served). This data is then immediately shared with the central NSTEP Application. Such real-time updates from any location – remote or accessible, contribute to narrowing the excessive delays caused in the process service by post. Inter-district or inter-state service of the process is electronic, which lessens the time required to send via post.

e-Sewa Kendra

The e-Sewa Kendra is set up as a one-stop centre for accessing all the facilities provided under the eCourts Project. It has been set up in high courts and one in the district court of each state on a trial basis. With these centres, a litigant can acquire information on case status and get judgments and orders passed by the courts. They can also assist in filing the cases online i.e. e-filing. 

The following are some of the facilities to be provided by the e-Seva Kendra:

  1. These centres handle inquiries on the status of the case, the next date of hearing and other such details.
  2. They handle queries related to judges who are on leave. 
  3. They mentor individuals on how to avail free legal services from the District Legal Service Authority, the High Court Legal Service Committee and the Supreme Court Legal Service Committee.
  4. They also supply soft copies of judgements and judicial orders via email, WhatsApp or any other mode available. 

JustIS Mobile App

The JustIs Mobile App was developed for the Judicial Management System and is used by the judges of district and subordinate courts in the country. The judicial management, organization, monitoring and administrative decisions can be taken with the assistance of the National Judicial Data Grid (NJDG) and the JustIS Application. This Application is secured via a username/password. It is a digital repository that gives all the information to the judicial officer on his/her handset throughout the day. With this application, the usage of digital signatures for orders/judgments/notices was initiated. 

Interoperable Criminal Justice System (ICJS)

The Interoperable Criminal Justice System (ICJS) is an initiative of the e-Committee to transfer data and information between the different pillars of the criminal justice system, like courts, police, jails, juvenile homes and forensic science laboratories seamlessly, from one platform.  

With the help of this platform, all the high courts and subordinate courts can gain access to the metadata of FIR and the charge sheet. The police have been uploading documents like FIRs, case diaries and charge sheets in PDF form for the usage of the courts. 

This platform is an effective tool for court and case management, as all case data is made accessible for courts and tribunals. This platform will serve as a turning point to increase the productivity of the criminal justice system, both qualitatively and quantitatively.

Recent developments in e-services brought by courts across states in India

Major reforms were carried out across the states considering the pandemic times like e-Sewa Kendra, video conferencing, e-filing of cases, etc., some of them are stated below. 

Karnataka

An official YouTube Channel was designed by the Karnataka High Court for live streaming of all the programmes and court proceedings. There are around 15.2k subscribers to the official YouTube Channel.

Bihar

Justice Chandrachud laid the cornerstone of the three e-Seva Kendras at the Patna High Court, the Patna Civil Court and the Panchayat Raj, Lakhanur (Masaurhi subdivision, Patna District) through virtual mode. During the inauguration, an observation was made by the High Court Chief Justice of Patna – Sanjay Karol that the implementation of these e-Seva Kendras would be beneficial in accessing justice for all stakeholders even those residing in the most remote locations. 

An ePay portal was also established which is directly integrated with the online receipts portal of Bihar State Government and can be used 24×7 from any place via net banking and debit/credit cards.

Orissa 

New services were introduced by the High Court of Orissa covering the High Court, District Court and the Taluka Court, they are as follows:

  1. 78 e-Seva Kendras at the Taluka level,
  2. Establishment of OCP (Order Communication Portal),
  3. Video Conferencing Cabinets specially dedicated to advocates,
  4. e-Payment of court fees at the High Court and district courts,
  5. A facilitation Centre for online payment of Court fees in the High Court,
  6. Service of electronically filing court documents in 244 Court Establishments,
  7. Digitization of case records in district courts.

Moreover, Justice S. Murlidhar, Chief Justice of Orissa High Court, inaugurated four District Court Digitization Centres in Cuttack, Ganjam, Sambalpur and Balasore via video conferencing. 

Uttar Pradesh

An ePay portal was established for the district courts of Uttar Pradesh and also via the Stock Holding portal. The court fees required for the filing of cases electronically are also collected via e-stamping. The e-filing portal and online payment of fees have been merged. With the help of this portal, a litigant/advocate can make payment of court fees for both types of cases- old and new. 

Furthermore, a  new website especially dedicated to the district courts of Uttar Pradesh was developed. It contains details of various projects of the eCourts, several publications, circulars and statements needed by the High Court from time to time, and district court data for keeping an eye on the status. It also includes:

CMS (Complaint Management System) 

The CMS is a web-based system authorizing the users to lodge and monitor complaints related to hardware, network, WAN, software, BSNL, etc. With the CMS system, complaint information is sent to the concerned department and officials can settle the complaint quickly. 

EMS (eCourt Management System)

The eCourt Management System is a web-based tool to get records from the district courts of Uttar Pradesh. It manages records like monthly SMS records, technical manpower records, hardware installation records, etc.

DMS (District Inventory Management System)

This is a web-based inventory management system that authorizes the users to enter details related to hardware, categorization of hardware, keeping a track of hardware, etc. 

Another system, the Interoperable Criminal Justice System (ICJS) was inaugurated and made available for the courts of Uttar Pradesh in order to facilitate speedy justice through data exchange between the courts, police/prosecution, jails and the forensic labs. It aims to merge the CCTNS project with the eCourts and other pillars of the criminal justice system. All the district courts of Uttar Pradesh are equipped with the CCTNS software. With this system, the following benefits can be reaped:

  1. This system will assist all the district courts of Uttar Pradesh in storing all the data related to FIR and charge sheets in the software of Case Information System (CIS). 
  2. With the help of this system, all the FIRs and chargesheets will be accessible for all the district courts of Uttar Pradesh. 
  3. This system will also make it easier for the district courts to verify the accuracy of the data in case records that are used through the FIRs and chargesheets on ICJS.

Madhya Pradesh

The Secure Wifi project for the High Court of Madhya Pradesh, the National Service and tracking of electronic processes for the District Judiciary and the implementation of the CIS software with land records at the High Court of Madhya Pradesh, Jabalpur were inaugurated by the Judge of the Supreme Court and Chairperson of the e-Committee Dr Justice D.Y. Chandrachud virtually. An eService Centre in the Indore Bench was inaugurated by the Chief Justice of the Madhya Pradesh High Court. 

Kerala 

An e-filing facility for all types of cases was launched in the High Court of Kerala. With respect to the provisions in the Electronic Filing Rules for Courts (Kerala), 2021, a special counter for e-filing was structured at the High Court by reforming the eSewa Kendra. The e-filing counter also provided enough computer systems and scanners along with internet services. 

Management and reformations by judiciaries worldwide

There were major technological initiatives taken by the judiciaries of various countries for the management of cases globally, which is discussed below.

United Kingdom

As per the 22nd report published by the Authority of the House of the Lords in the UK, it was found that a sudden shift to the remote hearing of cases, which was important for the operation of the justice system in Covid times had an uneven impact across the courts’ service. The senior courts and the courts that dealt with commercial cases adapted well but the lower courts which dealt with the majority of cases and litigants of which are most vulnerable had a hard time adapting to the remote hearings. 

In the UK, the Cloud Video Platform was rolled out in July 2020 which is available for the following hearings- civil, family, tribunals, magistrate, crown. It was found that some cases which included simple procedural hearings concerning only judges and advocates or those cases that involved cultured or well-bred parties and/or legal entities had no difficulties in the process of remote hearing. However, the tribunals, courts dealing with criminal cases, family courts and cases which were complicated faced issues with remote hearings. This was due to the involvement of live evidence and significant controversies associated with it. 

United States of America (USA)

In the United States Federal Circuit Court of Appeals, cases were heard remotely and the documentation could be done electronically, so the parties did not have to file hard copies of the documents. The courts also had the facility of live audio access to arguments, with daily accessible information which was also issued on the Court’s website. The technologies used by the Judiciary for conferencing comprises- AT&T Conferencing, Court Call, Skype for Business, Cisco Jabber, and Zoom. 

Whereas in the Supreme Court of the United States, the Court conducted the hearing of cases online. It heard all the contentions of the parties and that of the counsels remotely by telephone conference. The Court provided a live audio feed of the arguments to FOX News, the Associated Press, and C-SPAN, to live-stream on various media platforms.

Australia 

The online system of Digital Lodgement System Portal was used for filing all the documents of the cases that were commenced on or after 1 January 2020. The registry facilities were arranged online or via telephone; the official papers and documents were to be filed electronically with the Court, and the Court authorized electronic signatures on legal papers for a short while. 

Africa

Taking into consideration the pandemic situation, the Supreme Court of Uganda issued directions enabling judgments and rulings to be issued to the parties through email or WhatsApp. An online cloud-based collaborative solution that allowed Digital Case Management and Evidence Management systems for the High Court of South Africa was implemented. 

Moreover, Chief Justice Mogoeng Mogoeng issued directives for managing the courts that were superior like the Constitutional Court, the Supreme Court of Appeal, the High Court, and other courts that had the same status as that of the High Court. The direction was issued to allow the roll of unopposed applications identified as capable of being dealt with via video-conferencing and for parties to file their arguments electronically. These directions also restricted court hearings in the time of lockdown to matters and appeals which required immediate action or attention emerging out of or from any activities connected with disaster management. 

China

In order to have greater access to justice in the pandemic times, China moved all the court procedures including the filing of the cases, facilities of court documents, exchange of evidence, hearing cases, issuing a judgment and enforcement of justice online. It is one of the major development measures to be adopted in China.   

Moreover, China has strategically built a ‘smart court’ system by using technological innovations for providing speedy and just services. A Smart Court is a court where the judge is in the court and can access cases via a web-based litigation platform. For instance, in East China’s Zhejiang High People’s Court, an online platform for parties to avail services like case filing and online hearings was designed. Furthermore, the courts in China have also designed justice applications that have provided easy access to justice, especially for the younger people who are accustomed to carrying mobile phones while performing their daily chores. This application has facilities like online filing, remote trial, online evidence exchange, among other litigation functions. 

United Arab Emirates (UAE) 

To be safe from the COVID-19 pandemic, the courts in Dubai announced that all the hearings between the parties will be heard online in electronic form via Microsoft Teams, a video conferencing software. Moreover, all the new cases were to be filed online. The courts in Dubai motivated the public to utilise smart services while they ensured that the work or business could be continued via remote working for several departments. 

The criminal courts in Abu Dhabi had trials by video conferencing that permitted the defendants in custody to be a part of the legal proceedings. All the parties to the case, from the defendants to the complainants to the judges and legal counsels were able to access the proceedings via a live video link. 

Benefits availed by e-services 

The ancient custom – Justice, at all Costs, Always! has been enacted and protected by the  Indian Legal System by bringing about a change and reforming the Indian legal landscape with the use of technology, especially in such unprecedented times. 

Even during times of such global crisis, it is due to information technology that unhindered justice is delivered. To curb the effects of the global pandemic, the Indian legal industry very much relies upon IT-enabled virtual systems and communication facilities. Some of the benefits availed by the facilities provided with e-services are as follows:

Increased productivity of young women

Justice D Y Chandrachud asserted that there has been an escalation in the productivity of young lawyers, especially, that of women lawyers.  He propounded that he was amazed by the number of juniors who appeared before the Supreme Court via virtual hearings and that the young lawyers had a sense of confidence and were not intimidated by real physical courts where they have to submit their arguments in front of many lawyers. 

He further affirmed that women have many obligations to perform at their homes and offices and with the virtual court a high level of productivity can be ensured as the women know their case will be called out and they make themselves available accordingly. Via virtual hearing, they do not have to wait for long as it happens in the physical courts’ hearing.

Virtual hearings

With the pandemic having a long-lasting effect, more hearings will be held in virtual mode. A virtual court seeks to eliminate the presence of lawyers/litigants in the court to adjudicate the case online. With the facility of the internet becoming accessible to many, justice will be provided with ease while taking into consideration the measures to safeguard health. 

Indian law doesn’t have any separate provision for video conferencing, but the judiciary via various judgments has laid down various guidelines for video conferencing. For instance, in the case of Amitabh Bagchi v. Edna Bagchi, 2004 it was held that the term ‘presence’ does not mean the actual physical presence in a court i.e. physical presence may not be required for offering a piece of evidence, and that, evidence can be recorded in writing or mechanically in the presence of the Judge. Moreover, the Court asserted that evidence also includes evidence via video conferencing. 

Economical and time-saving

The use of video-conferencing systems, in criminal as well as civil trials, has proven to be cost-effective and time-saving. In criminal trials, there is no transportation of the accused from prison to the court, which, in turn, has increased the efficiency of the judiciary. 

Whereas, the witnesses in civil and criminal matters can save time and money by testifying via video-conferencing and are not required to commute to different states or countries. For instance, the High Court of Himachal Pradesh preferred to obtain the expert opinion of a doctor via video conference which helped in minimizing the additional burden on the doctor. 

Transformation in the method of collecting evidence and safeguarding the environment

The pandemic will also transform the method in which evidence is collected and transmitted. With the courts encouraging the usage of technology for facilities like e-filing and electronic documents to curtail the spread of this virus, the reliance on paper documents is expected to decline drastically. This will aid in minimizing the wastage of paper which is a major environmental concern in India. 

Increased transparency, accessibility 

The main aim of the eCourts is to bring forth a transparent, accessible and cost-effective justice delivery system for all the citizens via the Information Communication Technology (ICT) and the internet-enabled courts. The eCourt project has made digital interconnectivity possible among all the courts from district and taluka levels to the Apex Court.   

Live streaming

There are several misconceptions and misapprehensions about the courts that have made people reluctant to approach courts to seek justice or for the redressal of their rights. As the media is the medium for obtaining information for the public, the information received from the courts is being filtered by them. This, at times, leads to transmission losses which, due to lack of context, lead to misinterpretations of questions and observations by the bench. Lack of direct access to court procedures aggravates misconceptions. Live streaming would bring an end to this problem.

Challenges while using e-services

The usage of e-services in this unprecedented time has aided in securing the ends of justice for many. There is no doubt that e-judiciary is being utilised as a safe mode to acquire justice during such dire times with added efforts for its quick universalization in the country. However, this move is also bringing about several hardships that need to be addressed as a priority to refrain from causing any unnecessary hardships to lawyers and litigants during this quick transition period. There are some hurdles in the journey for justice via online proceedings. Some of them are as follows:

Threat to privacy

With the shift in the court system from the courtroom to virtual hearings there have been several genuine concerns among advocates and parties. The parties fear their safety and privacy with this new system of video conferencing. Moreover, there is no stringent legislation for data protection which is of utmost importance for ensuring the privacy of citizens. Similarly, the applications used during court proceedings must have end-to-end encryption to ensure that the safety and security of the litigants and parties appearing in front of the court are protected. 

Furthermore, it is alleged that the video-conferencing software being used by the Supreme Court, the high courts and the government departments are not safe and pose a security threat to the country. In a plea filed in the Apex Court, the Petitioner asserted that the video-conferencing platforms like Vidyo, Skype, Zoom, WhatsApp, etc are all possessed by foreign companies which have a user policy, thus enabling them to transport data outside India and further exploit it commercially.

Internet accessibility and connectivity issues

As per the guidelines issued by the Hon’ble Supreme Court, for effective functioning of video conferences and online proceedings, the internet connectivity (signal-strength/bandwidth) should be at a minimum of 2 Mbps or it must have a dedicated 4G data connection. There is a possibility that some lawyers, clients and parties to the case may not have such network specifications which will again pose a hindrance in the journey of justice.

Furthermore, many people do not have the means to access the internet, either because they cannot bear the cost of the broadband connection or do not have the requisite devices needed to access the web. To date, some villages do not have a proper network tower, let alone a stable internet connection. All these issues distance people from the justice delivery system.

Digital divide and lack of technological competency

The digital revolution has been successful in providing significant opportunities by creating higher quality work products, means to conduct better research, ways to work more collectively and to serve clients effectively. In the past few years, society has witnessed a “digital revolution”, the significance of which is as stunning as that of the industrial revolution. 

Yet, there are various sectors that are still progressing. The usage of technology and e-services in the middle and upper class and by the West is significantly higher than that of poor people. This gap is often referred to as a digital divide. Additionally, there are several people, who, to date, do not possess the adequate technological capability/competency to have access to justice. 

Professional misconduct of lawyers during virtual hearings

There are various instances where lawyers have shown a lack of professionalism while appearing before the courts for virtual hearing, some of them are as stated below. 

Lawyer attending virtual proceedings while riding a scooter

The Allahabad High Court in a virtual proceeding refused to hear a lawyer who was appearing before the Bench while riding a scooter. Justice Manoj Kumar and Justice Syed Aftab Husain Rizvi said that the Counsel should be careful in the future even if the hearings were to be conducted via video conferencing. 

Lawyer not wearing a band during an online hearing 

The Orissa High Court imposed a cost of Rs. 500 on a lawyer who was not wearing a band while appearing before the Court. The Court stated that the lawyer has violated the dress code prescribed under the Advocates Act, 1961 by not wearing a neckband. 

Lawyer addressing the Supreme Court in T-shirt while lying on a bed

During a virtual hearing with the Hon’ble Supreme Court, a lawyer was witnessed appearing before the Court in a T-shirt while lying on his bed. The lawyer later apologised for the act committed. Justice S Ravindra Bhar, considering this incident, stated that the counsels appearing in court via video hearings should be “presentable” and refrain from showing any images which are “tolerable in the privacy of their homes”. He further said that minimum court etiquette like that of a decent dress, background, etc. should be followed, considering the public nature of the hearings. 

Senior lawyer smoking hookah during a video conference

A video clip of a senior advocate taking a puff of hookah was popular recently. In this clip, the senior lawyer can be seen holding a sheet of paper in front of his face while taking the puff, but still, the smoke can be witnessed to escape from the side.

Overcoming challenges

There are several techniques in which the challenges faced while using e-services can be subjugated. Some of them are as follows: 

Launching a new well-equipped platform

Once the current situation changes, it is quite evident that the current processes of e-services will no longer be applicable. The National Informatics Centre will have to launch a platform that includes features such as videoconferencing and e-filing. This will be a bonus not just for the judiciary but all other components of the justice system such as the police, prisons and lawyers, as well. Moreover, it will also provide quick justice to more people. 

Avoid marginalization of one section of the society

Certainly, the formation of a next-generation justice platform will come with its own set of challenges. For one, there is a risk of a section of society being marginalized. Although information and communication technology is widespread, many people may still find it difficult to navigate a digitally native justice system. As such, the platform must primarily serve the citizens, and all the other functions designed to make the citizens’ work easy should meet this need.

Adopting a modular approach for agencies

Another challenge will be coordinating between the agencies across various levels of government which have different procedures with the help of constitutional remit. This could be addressed by adopting a modular approach where every agency manages and controls its module. The work of the coordinating agency then is to make sure that there is interoperability between the modules for maintaining smooth and effective functioning. 

Implement laws for safeguarding the privacy 

There is a dire need of implementing strict laws for protecting the safety and security of the litigants and parties who are attending virtual court proceedings. There is also a need for the implementation of laws concerning privacy and data protection. Also, the applications used during the court proceedings should have end-to-end encryption. 

Bridge the gap of a digital divide

Any move towards the online functioning of courts must account for the digital divide in the country. While cell phones are widely used, access to a proper bandwidth connection and advanced digital equipment remains exclusive to some urban users. 

The lawyers in rural and semi-urban districts find online hearings challenging because of issues in internet connection and unfamiliar methods of working. 

Other reforms

At the time of the transition, it will be crucial that the current procedures are examined and reviewed to terminate redundancies so that the inefficient processes on paper are not the same in digital form. This is one of the principles of business process reengineering, a term the eCourts project used without delving into its core beliefs. Similarly, for the radical transformation to be successful, the following three things are essential:

  • A clear articulation of the guiding principles and vision of the platform to accomplish a quality justice system that can be future-proof against new technology. 
  • An effective strategy for implementation of the platform’s details. 
  • A clear legal framework that will not only give permission to the implementing agency to lead the coordination of reforms but also to protect the interest of the litigants. 

It is quite disheartening that the information and communication technology features which were required for a very long time have arrived under such terrible circumstances. But as the famous saying goes, “necessity is the mother of invention”, the judiciary, after the COVID-19 pandemic is contained, will have a window of opportunity open to redesign and reshape the justice system for serving a public that will desperately need it.

The way forward

With the current pandemic situation, it is nearly impossible to determine how long the social distancing measures and moment restriction orders will be in force. These preventive measures will probably stay for a long time even after the situation is attenuated. The pandemic is most likely to bring the law into the digital age and restructure its landscape. The existing situations may accelerate and transform the Indian legal system. While bringing about such transformations, the courts have upheld the chief principle of the Indian legal system, i.e., justice must not only be done but seen to be done. In the current situation, arbitration is expected to be the most wanted and versatile form of dispute resolution. 

The hardships faced in these difficult times can be used as an opportunity for the Indian legal system to review and strengthen its operational procedures to reduce the effects of the pandemic as speedily as possible. Having said that, where on one hand, even though a rapid transition is of urgent necessity, yet, on the other hand, it would ultimately depend on the individual capacity of the stakeholder to adapt and adopt this ever-changing, dynamic circumstance. 

The following reformations can be brought in e-services to make the virtual justice delivery system more effective:

Need for a uniformly enabled ICT

There is not only a need for the usage of technology but also the uniform application of technology across the judiciary. Since its formation, the e-Committee has played a pivotal role in the enablement of ICT in the Indian judiciary. The Covid-19 pandemic is one of the best times to bring reforms in implementing a uniformly enabled ICT across the country, which in turn, will ensure that the results of such changes are available to each and every litigant uniformly across the country.  Unless and until the courts empower the litigants by providing them with the needed support through the use of technology, their work would be a work-in-progress. 

Three measures can be implemented by the courts, they are:

Focus on courts instead of eCourts

In eCourts, the main focus should be on ‘Courts’ instead of the ‘e’. The reformations in technology need to be treated as a holistic entity. A success that is broken up into several parts over usage of technology across multiple courts is unlikely to produce results for the litigant. 

Be litigant-centric instead of computer-centric

Computerization and eCourts are dissimilar. In Indian courts, the stage of computerisation is long gone. However, the eCourts must consider the requirements of the litigants and then implement systems to meet their wants. It is the difference between being computer-centric and litigant-centric, and it is time to choose the latter so that the purpose for which the journey began can be achieved.

Standardized process

The focus should be on transforming the process through standardization. ICT-based applications with uniform appearance and above all functionality should be adopted by the entire judiciary.

Future insights and measures to be adopted 

There are two methods in which the concept of courts can be implemented along with other services.  One is the court with a brick and mortar concept which is the actual, real court and the other is a virtual court. A virtual court will have no court hall and direct human interaction but will have an environment of lawyers, judges, parties and witnesses having virtual meetings and exchanging documents via the services provided by e-services, especially through electronic document interchange. There can be improvements in technology and applications like Skype, Zoom, Vidyo, etc. for the effective functioning of virtual courts. Moreover, the facilities of services can be accessed 24x7x365 rather than at a specified time. One measure that can be adopted is to make these platforms more effective in terms of securing the privacy of their users, thus eliminating the threat of privacy breaches and information leaks.

The virtual courts developed in the UK are a crossbreed of total paperless courts and conceptualised virtual courts. The police and the government appreciate this new change. 

Role of the Bar and Bench

The judicial system of a country cannot be said to be complete without the participation of the Bar. The Bar and Bench are similar to the two wheels of a chariot. The role of the Bar is not only to provide staff for the future judiciary but also to represent the interests of their clients. When computerization began, the members of the Bar were reluctant to use technology, but now things are changing gradually, and the members are accepting the fact that ICT is to be considered as a part and parcel of life. 

The Bar Council of respective States, and if need be, the Bar Associations, advocates and academies must provide practical and effective training to make the members of the Bar respond positively to ICT enabled tools and the developments brought in by the Indian Judiciary in terms of technology and virtual court proceedings. 

Current update

Make virtual hearings a permanent part of the judicial system

In April 2021, the Former Central Information Commissioner (CIC) Shailesh Gandhi had called for a virtual hearing to become a permanent part of the judicial system, saying that the achievements of the Supreme Court e-Committee, which was established in 2005, have been “inadequate”. He recommended this in a proposition to Justice DY Chandrachud, the Chairperson of the Supreme Court e-Committee, stating that the draft report released by the Committee in the public domain lacks “any real evaluation of the effectiveness of the earlier efforts and recommendations“. 

In his report, various other features like the Interoperable Criminal Justice System along with a lot of sophistication are mentioned, which can be added later. He further stated that it is important to first start with hybrid courts. He also recommended that the suggestions and specifications of the e-Committee should be welcomed in all states, e-filing must be made compulsory and all the courts should have the needed hardware and also offer either physical hearings or virtual hearings.

Physical hearing to be resumed

On 7th October 2021, the Supreme Court asserted that all the cases listed on Wednesdays and Thursdays i.e. non-miscellaneous days will mandatorily need an in-person attendance of the lawyers and will be heard only via physical hearings in the courtrooms, with effect from October 20. However, the previous arrangement of conducting hybrid hearings on Tuesdays and hearing of cases on Mondays and Fridays compulsorily via videoconferencing/teleconferencing will be continued. 

Moreover, for the hearings on Tuesdays, the new rules state that all the matters that are listed on Tuesday, as a non-miscellaneous day, will also be heard in person; however, upon prior request of the lawyers to the party, the appearance will be facilitated through video/teleconferencing mode. The lawyer must request the link by 1.00 p.m. on the previous business day. 

A virtual court cannot be the norm says the Supreme Court

Furthermore, the Supreme Court on 8th October 2021 expressed its strong reservations on a petition that asked for the virtual courts to be continued as a matter of fundamental rights. It said that virtual courts cannot become the norm as this would mean that the building of the Court should be shut. It further stated that the new system of the virtual hearing was implemented for the courts to continue functioning during the COVID-19 pandemic. 

With the above instances, we can safely assume that e-services are not widely accepted, even in pandemic times in India. The e-Committee will have to take steps and measures to broaden the scope of ICT and e-services in the judiciary by educating lawyers, students, litigants and other members about the same. Only then, some reformation can be brought into society and on the path to access justice electronically. 

Conclusion

The COVID-19 pandemic has changed the ways in which the courts functioned during the global crisis. Almost all the courts across the world have taken action and further encouraged the usage of e-services for various activities like online payment of court fees and fines, online functioning of courts, legal proceedings via virtual hearings. A majority of states in India have shifted to virtual hearings and have developed various applications and tools for the ease of litigants, lawyers and judicial officers.  

All these are indications that the Indian legal system is modernising and is aiding in reducing the hindrances and issues an individual would face while accessing justice- virtually. Nevertheless, despite all the obstacles and challenges of this new system, virtual technology in the Indian legal system is flourishing.

Moreover, to strengthen the Indian judicial system further, the facility of e-filing and virtual hearings can be kept open as an alternative option for an in-person hearing and filing documents in the court, even after the courts resume to normal and the social distancing measures are lifted completely. This will, in turn, serve as a means for the staff, the members of the Bar, and the Bench to get used to such procedures and to understand and correct the mistakes an individual makes while availing the e-services. 

This pandemic has completely transformed and changed the Indian legal culture. While there are numerous advantages of using e-services, it does require a significant amount of training, discipline and basic infrastructure, all of which can only be accomplished if every stakeholder involved will collectively commit to attaining the milestone in the country’s judicial administration system. 

References 


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