After the spread of Covid-19, both individuals and institutions began to behave differently. Distancing is the new rule. Amidst the pandemic, in the UK, the House of Commons sat online for the first time. The prime minister of India interacted with chief ministers by video conferencing. The Supreme Court of India and several High Courts have heard many cases online. The Kerala High Court was a forerunner. On March 30, the High Court passed orders on a few urgent matters. In a first, there was also a live streaming of proceedings. Media reports clearly indicated the emergence of a different variety of judiciary.
Covid-19, which caught hold of the whole world, no doubt, shocked the litigants, lawyers, judges and the administrators of justice. Still, the coronavirus has the potential to recalibrate India’s judiciary, provided we have the political will and an action plan to digitalise the courts, from bottom to the top. The crisis can also be an opportunity.
Digitalisation of the court is not merely about modernisation. The point is its democratisation. Technologists Eric Schmidt and Jared Cohen wrote: “People will find that being connected virtually makes us feel more equal—with access to the same basic platforms, information and online resources—while significant differences persist in the physical world” (The New Digital Age, 2013). To put it otherwise, digital technology offers formal equality. Substantive equality is quite another thing.
The former can improvise the struggle for the latter. It is fascinating to see a litigant in Chennai, with the assistance of his lawyer nearby, presenting his case before the Supreme Court through video conferencing. Barriers of money, place, class and status are all demolished momentarily. British author Richard Susskind predicted that online courts are inevitable in the time to come. Perhaps, the future is here!
The legal profession is hierarchical. Many star lawyers are beyond the reach of the poor or even the ordinary citizens. Judges also enjoy an elevated position, as physically visible in a conventional court hall. Access to justice is a myth for a good part of the population. In an open online court, everyone, right from the petitioner to the judge, an outsider to the court staff, is in tiny rectangular spaces, reflecting the new digital equality—another variety of Article 14 of the Constitution. The problem in India however, is that the internet also is the privilege of a few.
In a way, during the pandemic, the judiciary was materialising its own dream expressed in the judgment in Meters and Instruments Pvt. Ltd. Vs. Kanchan Mehta (2017), which indicated that certain categories of cases “can be partly or entirely concluded online”. Paperless methods can also reduce overcrowding in the courts, the judgment said. It is estimated that cases filed annually in the courts in India contain about 11 billion sheets, which ecologically means destruction of lakhs of trees.
Digitalisation can act as an effective remedy for law’s delays. In 1989, about one lakh cases were pending before the top court, which got reduced to 27,000 in 2003, thanks to computerisation effected in 1990. By uploading documents ranging from the First Information Report in a local police station to the judgment of the Supreme Court in the website, the legal landscape of the country was radically altered. We have the basic platform that can facilitate a digital revolution in our adjudicatory institutions. We need to learn from other jurisdictions as well. The online registry in the New South Wales Supreme Court, the Small Claims Tribunal (SCT) in Dubai, Civil Resolution Tribunal (CRT) in Canada are fine examples. Singapore, China and South Korea also have good models to offer.
E-courts need proper, efficient and fair management. E-registries should be statutorily designed. Those will have to function in accordance with the rules specially promulgated. Timely allocation and utilisation of funds should be ensured. A report by the Vidhi Centre for Legal Policy (2016) notes that policymakers failed to properly estimate the cost of the e-Courts Project in India.
Virtual courts should, however, ensure the basic virtues of conventional judiciary. They should treat lawyers alike. Citizens also should not be discriminated against. Principles of openness, fairness, transparency and accountability cannot be compromised. Barring a few complicated matters and elaborate trials, a good number of cases can be decided in e-courts hereafter. The interactive experiences should be satisfying and encouraging. There has to be a national policy in the matter that can take empirical lessons from the proceedings in different courts during the time of pandemic.
A digital court has to be vibrant and participative. For that, the state should educate and equip the public. Acute poverty and illiteracy are antithetical to egalitarianism. Once we are able to resolve the feudal vices, the e-court can act as a check against monopolisation of the facilities of Indian judicature. It can act against legal plutocracy. It can cultivate a new judicial culture for the people at large. It will, ideally, empower the committed legal professionals across the country to extend efficient services to the needy at a drastically reduced cost. It can help us move closer to a socialist judiciary and thereby to the heart of the Constitution.
KALEESWARAM RAJ
Lawyer, Supreme Court of India
(Email ID: kaleeswaramraj@gmail.com)