Digitalization of Indian Judiciary Amid COVID-19; the Right Way Forward for eCourts in India

Amid the spread of COVID-19, as the nation went into lockdown in late March this year the court system all across the country also took a hit. Distancing became the new normal. However, this propelled the Supreme Court to fast track administrative reforms in its system. With the approach that could speed up disposal of cases, digitization of records, and a switch to a paperless judiciary; the Supreme Court on April 06, 2020 passed a slew of directions for all courts across the country to extensively use video-conferencing for judicial proceedings. Thus, setting the digitalization of Indian Judiciary in motion.

In light of the extension and the Hon’ble Supreme Court’s Order to explore video conferencing for hearings; High Courts across the country aim to create avenues for litigants to file and hear matters online. E-Court’s mission project remains the largest undertaking to make courts digitized in order to increase the efficiency and efficacy of the judiciary. However, it should be noted that the digitalization of the isn’t merely about adaptation or modernization. It’s majorly about democratization.

The Beginning of Digitalization of Indian Judiciary

The Indian Government established the e-Committee of the Judiciary in December 2004. This committee oversaw the steady adoption of electronic infrastructure by courts across the country. The Policy and Action Plan Document for Phase-II of the e-Courts Project of January 2014, already contemplated video conferencing and recording facility for courts and jails for more than just remand matters. It was expected to be used for recording evidence in sensitive cases and to be gradually extended to cover as many kinds of cases as viable.

About 15 years ago, Delhi initiated a pilot project with Tihar Jail for dealing with routine remand cases of prisoners. The procedure postulated prisoners produced before the court, not physically but through video conferencing (VC). Hence, an online court. The pilot project started tentatively with some hiccups but proved to be a success leading to several courts adopting the online process with varying degrees of commitment.

The Online Courts dealt with several such cases, including those involving NRIs, through VC. The High Court of Punjab and Haryana went a step further and completely dispensed with paper. The filing in these courts now includes soft copies and scanned documents.

Virtual Courts: The New Normal?

Virtual courts in India have been an emergency, temporary response to the COVID-19 pandemic, but a section of judges and lawyers want to include virtual courts in normal court proceedings even after the health crisis gets over. Other than that, video-conferencing could be a precursor to live-streaming of cases, a long-pending demand from advocates and law students. The new system also gave an identity to advocates-on-record (AOR); initially who were only allowed to file cases and remained under the shadow of senior arguing counsels during hearings. The proceedings require the AOR of each case present before the court now.

In this manner, the courts in India can resume full functionality through remote working formats quickly. All the while the health advisory mandating social distancing and avoiding crowded courtrooms continues. The lower courts where electronic infrastructure is not yet available can adopt written submission as the basis for arguments in certain categories of matters, and a shift system for oral hearings.

Another facet of the vision views the biggest winner in this tectonic shift to be a pendency problem in the Indian courts. A conservative estimate will cover approximately forty percent of all pending cases. These may be disposed off on the basis of written arguments.

In 2017, the apex court made an attempt to make if-not-all courts, Supreme Court paperless. But in the absence of an efficient e-filing system, it failed. E-filing has been in the offing for almost two decades. The advent of the pandemic and its institutional demands presented an opportunity to integrate technology and use it as a force multiplier.

Problems in Digitalization of Indian Judiciary

Law and jurisprudence are not static but reflect on societal needs and often shape them. Though measures are taken to maintain the status quo such as the limitation period and interim order extensions, a moratorium on debt payments, a variety of legal issues remains in need of adjudication. 

India’s unequal technological realities are not just limited to connectivity and physical infrastructure issues. Many people also either lack the knowledge to use these systems or are not comfortable in using them. On similar lines, the chairman of the Bar Council of India voiced a concern that 90 percent of the lawyers are not computer literate or tech-savvy.  

The socio-economically weaker sections will not find digital systems easy to handle. The education system for lawyers and the intake process for judges will need to factor in these developments. The skillset that clerks, registry officials et al. require will also change. Digital security across all activities needs to be fortified. High initial investments might be a deterrent.

Another deterrent could be crucial elements in court proceedings, like the demeanor and facial expressions of a person being questioned. Glitches in video streaming can overshadow these. There are fears that this could undermine a fair trial.

The Way Forward

Despite the push for online courts, many believe that physical courts cannot be done away with. That there needs to be a model legal system that incorporates online courts while addressing the impending structural challenges. Justice delivery would certainly undergo a transformation and judges, lawyers and litigants will need to adapt to the new normal.

That said, technology can have a wide array of applications in court proceedings and even facilitate an end-to-end comprehensive process. Electronic service of summons, notices can exponentially speed up proceedings. Digital Court Reporting technology can provide a complete transcription of every hearing simultaneously generating insightful data. The entire system of justice needs to be restructured and re-innovated around the digital tools; so as to ensure quick and effective delivery of justice to the aggrieved without any much delay. All things considered, the balance of convenience of digitalization of Indian Judiciary will lie in the immediate adoption of electronic functioning by the court system.