Former Chief Justice of India S.A. Bobde said in his farewell address, “Access to justice now depends on access to technology.” Technological transformations in the Indian judicial ecosystem, which were brought about in the wake of the Covid-19 pandemic, have received both praise and criticism from the public. The courts’ inability to function physically pushed them to explore these technological capabilities in order to dispense justice. The Supreme Court acted promptly, issuing a set of guidelines for video conferencing to reduce physical interaction through a suo motu writ petition.
Other major technology-driven reforms included e-filing of petitions, virtual hearings, and live streaming of court proceedings. Data from the e-committee of the Supreme Court reveals that as of 30 June 2021 (for an average of three months), 40,43,300 and 74,15,989 lakh cases were dealt with through video conferencing by the high courts and the district courts, respectively. The e-committee drafted model rules defining the contours of these reforms, indicating that the Indian judiciary in the post-pandemic days is likely to be a hybrid of physical and virtual courts.
While these changes are a welcome step towards improving the efficiency of the system, it is critical to bear in mind that technology is not an elixir for the problems affecting the judiciary. It will bring with it a series of challenges that may make justice even more inaccessible for the common (wo)man.
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Digital divide at Bar and Bench
Differential access to devices and technological infrastructure, bandwidth and connectivity issues, and varying levels of comfort and know-how in the use of technology are some of the challenges that affect all the stakeholders in the judiciary, especially those working closely with the district courts in rural parts of India. Preliminary findings from the ongoing survey of trial courts conducted by the office of the Chief Justice of India reveal that only 27 per cent of the courtrooms in the subordinate courts have computers on the judge’s dais and 10 per cent have no access to the Internet. This implies that most courts, especially in the district judiciary, are currently not equipped to function virtually.
Ever since the imposition of the first lockdown in March 2020, the Bar Council of India has expressed concerns over the deep-rooted inequality in access to technology — depriving advocates from certain demographics of their livelihood. A survey conducted by the Vidhi Centre for Legal Policy of 2,800 advocates across eight high courts revealed that there exists a large pay gap between the earnings of entrants and senior advocates in the litigation profession. Eighty per cent of practising advocates, who were part of the pilot survey in Delhi, responded that advocates with up to two years of practice earn anywhere between Rs 5,000 and Rs 20,000 monthly. Shockingly, 40 per cent of young advocates from the High Courts of Allahabad, Bombay, Kerala, Madras, and Patna earn only between Rs 2,000-5,000 monthly, while 50 per cent from the Calcutta High Court said that they earn less than Rs 10,000 a month.
This gives a realistic picture of what could likely be the state of affairs of advocates who practise in semi-urban or rural areas. It is unfair that the system expects these advocates to have access to the Internet, advanced digital equipment, and keep themselves abreast of the latest technological developments in the ecosystem. Undoubtedly, this results in litigation being dominated by a handful of elite advocates who have the privilege to log in from the comfort of their homes or chambers and attend hearings on multiple windows across different high courts and the Supreme Court simultaneously.
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Connectivity and technological competence
Robust Internet connection and superior video conferencing facilities are other critical requirements for an uninterrupted virtual court proceeding. The 103 report of the Parliamentary Standing Committee identifies connectivity divide or access to broadband Internet as roadblocks to digital courts. Even the district judiciary in Delhi was unable to provide adequate bandwidth, network-attached storage, and routers for conducting virtual hearings. The high court had to direct the government to procure the necessary hardware to ensure access. The issue is not just confined to the courts, but extends to a substantial number of litigants and advocates as well, who are vulnerable to being excluded from the process of justice delivery due to heterogeneity in Internet penetration.
The last in this genre of challenges is the large proportion of judges, court staff, and advocates who do not have sufficient knowledge and skill to use technology. Legal acumen does not necessarily translate to technological competence, and it is vital that adequate training be imparted to ease the transition from traditional paper briefs to screens and systems.
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A coordinated effort to address a gamut of issues
Access to foundational infrastructure, stable Internet connection, and the ability to use technology in the conventional work routines are only some of the teething problems that the justice system is facing. Ensuring secure video and audio conferencing without compromising the privacy of the litigants and adhering to the ‘open court’ principles are key challenges that will need the system’s due attention. On the criminal justice side, the judiciary has another gamut of issues to consider while integrating its processes with technology.
Better coordination between the judiciary and the government concerning the allocation of funds and procurement of necessary hardware and inclusion of experts to design and build the standards and specifications for the software to enable the digital transformation of the judiciary at all tiers are urgent requirements. The road ahead does not look easy unless all the stakeholders cooperate to overcome bureaucratic hurdles, prioritise funding to address the foundational problems, and build systems that are inclusive to ensure better access to justice.
Reshma Sekhar is Senior Resident Fellow with the Justice, Access and Lowering Delays in
India Initiative (JALDI) at the Vidhi Centre for Legal Policy. Views are personal.
This is the second of a four-part series of opinion pieces on building a ‘Judiciary for the 21st
Century’ with the Vidhi Centre for Legal Policy, ThePrint’s knowledge partner. Read the series here.
(Edited by Humra Laeeq)