The entire world has been upended by Covid-19, with many countries going into lockdown to curb the spread of the pandemic. India too has followed suit by imposing a 21-day lockdown.
Only essential services are allowed to function during this period. Crucial government departments are carrying on work, many with skeletal staff. In these unusual times, the judiciary has been left to decide its own course of action. The High Courts and the Supreme Court have responded to the public health crisis by suspending judicial and administrative work, while making exceptions for urgent matters. To meet the need for social distancing, courts are allowing appearances via videoconferencing and e-filing of documents.
On Monday, a Supreme Court bench of Chief Justice SA Bobde, Justice DY Chandrachud and Justice LN Rao “issued a slew of directions...in order to streamline the functioning of courts via video conferencing” during lockdown, Live Law reported.
These are welcome measures, of course – they update India’s antiquated court processes. But it is a pity that measures increasing access to justice have been implemented to avoid a contagion, not to improve the quality of justice. Even so, the difficulties with which they have been implemented, while understandable given the circumstances, show that the judiciary’s modernisation should be the first priority of the courts when they resume normal functioning.
Road to justice
Accessibility is a core function of justice – the quality of adjudication in a courtroom is of little utility to potential litigants if they cannot access it. Unfortunately, in this country, many people do face significant constraints in their effort to access justice. Some simply do not have the financial means to physically reach courtrooms or hire lawyers. Others cannot afford the opportunity cost of missing work to attend court. Then there is the issue of many of our courts being inaccessible to people with disabilities. Despite all these obstacles, even if people attend a hearing, there is always the possibility that it will be adjourned.
This is why a measure like videoconferencing is such a necessity even in the best of times. The technical capacity to stream video is now in the hands of ordinary citizens, and there is no reason why a public institution as crucial as the judiciary should not utilise it. The Supreme Court recognised this in principle in Swapnil Tripathi vs. Supreme Court of India, where it held that the entire judiciary – starting with the Supreme Court itself – should move towards live-streaming of proceedings.
This may be the right time to bring in videoconferencing for good. Just like many employees will be able to prove the viability of working remotely in a post-Corona world, many litigants who have experienced videoconferencing and e-filing will question why these cannot continue after the pandemic abates.
With time and thought, the two measures could be implemented better than they have been for now. The Supreme Court, for instance, initially instructed litigants to use an app called Vidyo. Designed for the US government, the app raises obvious security and sovereignty questions when used for judicial proceedings. As it happened, Vidyo faced “unforeseen linkage issues”, probably due to increased traffic. Lawyers were instructed to provide alternative methods such as WhatsApp, Facetime and Skype as a last resort in case videoconferencing on Vidyo was not possible. E-filing, meanwhile, is being conducted via email during the lockdown (the Karnataka High Court has taken the commendable step of providing the Gmail addresses of all district courts).
Once normalcy returns, it is clear that the current processes will not be applicable. A public function as critical as adjudication cannot rely on third party proprietary software. The National Informatics Centre will have to create a platform that includes features such as videoconferencing and e-filing. This will benefit not just the judiciary but all other components of the justice system – such as the police, prisons and lawyers – and provide more people more justice more speedily.
To be sure, creating a next-generation justice platform will not be without its challenges. For one, it runs the danger of becoming exclusionary. Though information and communications technology is becoming prevalent, many people may still not be able to navigate a digitally native justice system. As such, the platform must, first and foremost, serve citizens. All other features intended to ease the work of other participants in the justice system should be in service of this need.
Another challenge will be coordinating between the agencies across different levels of government that, by constitutional remit, have different procedures. This could be addressed by taking a modular approach where each agency takes control of their module – the task of the coordinating agency then is to ensure interoperability between the modules to maintain the platform’s smooth functioning.
During the transition, it will be important to examine the current procedures to eliminate redundancies, so that inefficient processes on paper are not replicated in digital form. This is one of the principles of business process re-engineering, a term that the E-Courts project has used without engaging with its core tenets. Equally importantly, for the radical transformation to be a success, we will need these three things:
- A clear articulation of the guiding principles and vision of the platform to better achieve a quality justice system that can be future-proof against new technologies.
- A cogent strategy regarding the implementation of the platform’s details.
- A clear legal framework that will give sanction to the implementing agency to lead the co-ordination of reforms but also protect the interests of litigants.
It is unfortunate that the information and communication technology features long requested in the judiciary have arrived under such dire circumstances. But necessity is the mother of invention – once Covid-19 is contained, the judiciary will be presented with an opportunity to reform the justice system to better serve a public that will desperately need it.
Madhav Chandavarkar is an independent public policy analyst who has worked on judicial reforms, gene editing and mob violence. He has recently collaborated on a White Paper Series for Daksh India on a Next Generation Justice Platform.