During the Second World War, when the Luftwaffe (German air force) was wreaking havoc over London with its incessant bombing attacks, the British Prime Minister Winston Churchill took cognizance of the heavy casualties and economic devastation. While he was briefed on the casualties and economic collapse, he asked, “Are the courts functioning?” When told that the judges were dispensing justice as normal, Churchill replied, “Thank God. If the courts are working, nothing can go wrong.”
- Covid-19 has brought almost the entire world to a near-standstill, and India’s justice delivery system — rarely known for its speed even in the best of times — is no different.
- Official data shows that while the institution of new cases, both in the higher judiciary and subordinate judiciary, has come down since the beginning of the nationwide lockdown on 25 March, the disposal rate has also been severely affected due to the forced closure of courts.
- The judiciary has come under immense pressure to innovate during this pandemic so as to balance public health concerns with access to justice.
- Our Judicial system has been the nation’s moral conscience, speaking truth to political power, upholding the rights of citizens, mediating Centre-state conflicts, providing justice to the rich and poor alike, and on several momentous occasions, saving democracy itself.
- Despite its achievements, a gap between the ideal and reality has been becoming clear over the years.
- The justice delivery is slow, the appointment of judges is mired in controversy, disciplinary mechanisms scarcely work, hierarchy rather than merit is preferred, women are severely under-represented, and constitutional matters often languish in the Supreme Court for years.
- As Justice Chelameswar said in his dissent in the NJAC judgment, the courts must reform, so that they can preserve.
Inherent Issues with Indian Judiciary
The Constitution of India, through its Preamble, has guaranteed to its citizens ‘Justice’—economic, political and social. But even after 70 years of independence, achieving substantive justice for the vast majority of the citizens has remained a distant dream. In the specific area of justice delivery system, India is faced with several problems relating to large backlogs and pendency of cases.
Despite the independence of the judiciary from the executive and legislative bodies, the Indian judicial system faces a lot of problems. The major issues that the system faces are:
- The pendency of cases.
- Lack of transparency (particularly in the appointment of judges).
- Under trials of the accused.
- Lack of information and interaction among people and courts.
1) Pendency of cases
- India’s legal system has the largest backlog of pending cases in the world – as many as 30 million pending cases. Of them, over four million are High Court cases, 65,000 Supreme Court cases.
- This number is continuously increasing and this itself shows the inadequacy of the legal system.
- And also due to this backlog, most of the prisoners in India’s prisons are detainees awaiting trial.
- It is also reported that in Mumbai, India’s financial hub, the courts are burdened with age-old land disputes, which act as a hurdle in the city’s industrial development.
What led to the under-performance of Indian Judiciary?
The issue of heavy arrears pending in the various courts of the country has been a matter of concern since the time of independence. The primary factors contributing to docket explosion and arrears as highlighted by Justice Malimath Committee report are as follows:
- Population explosion
- Litigation explosion
- Hasty and imperfect drafting of legislation
- Plurality and accumulation of appeals (Multiple appeals for the same issue)
- Inadequacy of judge strength
- Failure to provide adequate forums of appeal against quasi-judicial orders
- Lack of priority for disposal of old cases (due to the improper constitution of benches)
2) Corruption in judiciary
- Like any other institution of the Government, the Indian judicial system is also allegedly corrupt.
- There is no system of accountability. The media also do not give a clear picture on account of the fear of contempt.
3) Lack of transparency
- Another problem facing the Indian judicial system is the lack of transparency. It is seen that the Right to Information (RTI) Act is totally out of the ambit of the legal system.
- Thus, in the functioning of the judiciary, the substantial issues like the quality of justice and accountability are not known properly.
- In the recent past, there have been many debates regarding the Collegium system and the new system that the government wanted to introduce for the appointment of judges, the NJAC.
4) Hardships of the undertrials
- Right to a speedy trial is an integral part of the principles of fair trial and is fundamental to the international human rights discourse.
- In Indian jails, most of the prisoners are undertrials, which are confined to the jails until their case comes to a definite conclusion.
- In most of the cases, they end up spending more time in the jail than the actual term that might have had been awarded to them had the case been decided on a time and, assuming, against them.
- Plus, the expenses and pain and agony of defending themselves in courts is worse than serving the actual sentence. Undertrials are not guilty till convicted.
5) No interaction with society
- It is very essential that the judiciary of any country should be an integral part of the society and its interactions with society must be made regular and relevant.
- Lack of faith in a fair and swift judicial system creates a low-trust society.
- The rule of law and trust are central to enable people in large societies, who do not personally know each other, to live together peacefully and collaborate.
Impact of Coronavirus
1) Decline in cases
Don’t go by the number of reduced cases … just imagine the scale of burden on Indian Judiciary due to reduced disposal rate!
- With only limited benches presiding over select matters daily, cases pending before constitution benches have been put on the back burner.
- In the entire month of April, 82,725 cases were filed in India’s courts, while 35,169 cases were disposed of.
- Compare this to 2019, when the average number of cases filed per month was around 14 lakh (total number of cases 1.70 crores), while the average number disposed of per month was 13.25 lakh.
- In all, there are about 3.23 crore cases pending in the 19,683 subordinate courts in the country, of which 90 lakh are civil cases and 2.32 crore are criminal cases
- The situation in the high courts’ is no better. Currently, there are over a total of about 48.16 lakh cases including civil and criminal cases.
2) The new normal of Social Distancing
- 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.
- All courts, including the Supreme Court, high courts and district courts, have been operating in a highly restricted manner.
- Most courts have already decided to persist with the restricted functioning until at least 17 May.
3) Judicial appointments stalled
- The process of appointment of judges too has been impacted by Covid-19 and the resulting lockdown.
- Even before Covid-19, over 35 per cent posts in high courts were vacant — out of 1,079 sanctioned posts, 201 permanent ones and 184 additional judges’ positions were yet to be filled.
- But now, the appointment of over 120 high court judges is pending with the Supreme Court Collegium, while 50-odd fresh recommendations have been made by the various high court collegiums.
4) Quasi-judicial bodies have stopped working
- What is also perplexing is how proceedings in over a dozen tribunals have come to a grinding halt during the lockdown despite these judicial bodies being equipped with video conferencing infrastructure.
- The central zonal bench of the National Green Tribunal had been hearing matters through video conferencing for nearly two years but stopped functioning since the lockdown.
- The public will have to pay a huge price for this stalemate as the NGT had stayed work on some key government-funded projects.
- With proceedings now on hold, cost escalation for these projects would eventually be passed on to common citizens.
Need for a change
The pandemic has been changing many aspects of our life and forcing us to innovate or embrace the novel changes. The judiciary is not immune to this change. The time is ripe for the adoption and popularization of online court. But there were several attempts at the adoption of technology in the working of courts even before the pandemic. Time has now come to adopt these technological frameworks on a wider scale.
Alternatives to conventional courts in practice:
- The Online courts where the judge is physically present in the courtroom but the lawyer or litigant is not.
- This is the present arrangement, except that now the courtroom is the residential office of the judge, due to the lockdown.
- And the Virtual courts(VC) where there is no judge, lawyer or litigant and a computer takes a decision based on the inputs of the litigant.
1) Online Courts
- Amid this pandemic, a few district judges have taken a step forward and recorded the statement of parties in cases of divorce by mutual consent.
- As of now, several such cases, including those involving NRIs, are dealt with through VC in online courts.
- Punjab and Haryana judges have gone even further ahead. The online courts record the expert evidence of doctors from PGIMER through VC.
- This has freed the doctors from time-consuming trips to the courts and has resulted in savings of several crores for the exchequer.
- The SC hearings use the VIDYO App hosted by the National Informatics Centre. Some platforms like Zoom, WhatsApp, and WebEx are being used in some high courts.
2) Virtual courts
- A virtual court is a unique contribution of the eCourts Project.
- A pilot virtual court was launched in August 2018 in Delhi for traffic offences and it has been a great success.
- Virtual courts have been successfully tried out in Delhi, Haryana, Maharashtra and Tamil Nadu.
- The virtual court system has the potential of being upscaled and other petty offences attracting a fine such as delayed payments of local taxes or compoundable offences can also be dealt with by virtual courts.
- This will ease the burden on conventional courts and therefore must be strongly encouraged.
The Supreme Court support for video conferencing
The outbreak of coronavirus or COVID-19 in several countries including India has necessitated immediate adoption of measures to ensure social distancing to prevent transmission of the virus.
- A bench headed by CJI SA Bobde said that every high court would be authorised to determine the modalities suitable to the temporary transition to the use of video conferencing technologies.
- All measures taken by the courts, to reduce the need for the physical presence of all stakeholders within court premises and to secure the functioning of courts in consonance with social distancing guidelines and best public health practices shall be deemed to be lawful, said the bench.
- The top court directed that district courts in each state shall adopt the mode of video-conferencing prescribed by the concerned high court.
- The concerned courts shall maintain a helpline to ensure that any complaint in regard to the quality or audibility of feed shall be communicated during the proceeding or immediately after its conclusion.
- The bench directed that courts shall duly notify and make available the facilities for video-conferencing for such litigants who do not have the means or access to such facilities.
- Until appropriate rules are framed by the high courts, video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage.
The only option lies in technology
- One way to retain access for most litigants as quarantine, self-isolation and social distancing are being implemented to avoid contracting the deadly virus, is by using technology.
- Some jurisdictions abroad have the facility to operate online courts and even telephone hearings for non-substantive issues.
- The importance of allowing technology within the judicial process is already recognised in studies conducted by Indian legal analysts.
- For instance, DAKSH’s white paper series on a next-generational justice platform moots the idea of re-calibrating the Indian judicial system through a natively digital platform.
Various issues with these courts
- Unfamiliarity with the medium of communication is the major issue. Judges are simply not used to consciously facing a camera generally and in particular while hearing a case.
- Similarly, lawyers find it difficult to comfortably argue while seated.
- Some technical problems in conducting online hearings have also surfaced. The bandwidth is not adequate or stable enough. The picture sometimes breaks or gets frozen and the voice often cracks.
- Consultations are also a problem: Lawyers occasionally need to consult their client or the instructing advocate; judges also need to consult each other during a hearing.
Lack of a unified portal
- The Supreme Court initially instructed litigants to use an app called Vidyo. There have been instances of using Whatsapp, Google and Zoom video conferencing tools.
- These apps raise obvious security and sovereignty questions when used for judicial proceedings.
- 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.
- As a matter of fact, the present system of justice is totally out of place and out of time and tune with democratic procedures and norms that please only a certain section of the society with vested interests.
- Therefore, there is an immediate need to restructure the entire judicial system to make it answerable to the needs of a democratic, progressive society.
- The judiciary has a golden opportunity to envisage a justice delivery system that could function unhindered at all levels during any emergency.
- The online court is one of a number of related justice modernization needs. It may cost several billion and look a massive sum to commit at a time of austerity, but if it succeeds it will save several more billions.
- This saving will be made by eliminating many of the costs of running a paper-based system using rented premises which look more like shop windows and craft workshops than actual courtrooms.
The inherent issues can be addressed with some simple measures like:
- For pendency, time-limits should be prescribed for all cases based on priorities. So setting time-standards is essential and it will vary for different cases, and also for different courts depending on their disposal-capacity. Alternative disputes resolution (ADR) mechanisms should be promoted for out of court settlements.
- To imbibe transparency, a thorough understanding of the principle of independence of the judiciary and ensuring its accountability is the sole prerogative of the Supreme Court itself. The judiciary should come up with its own solution for transparent functioning and judicial appointments.
- To make trials speedy, the judiciary must scrutinize the sensitivity of a particular case before taking up for hearing. Fast track courts must be established for varieties of cases.
- 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.
- The legislative underpinning of the courts’ modernization should begin boldly and immediately.
- First and foremost, it needs to massively increase the number of leaders and innovators who are addressing issues of law and justice.
- The coronavirus crisis has encouraged courts around the world to find innovative ways of delivering justice. Courts and their users must ‘seize the moment’.
- We urgently need a set of new laws and procedural rules for the online courts.
- We have to create more awareness and understanding and also create platforms and spaces that invite and enable changemakers to come together, dialogue and collaborate to create effective solutions.
- We must use technology and new media to create a citizens movement by equipping citizens with the knowledge, resources and tools to put pressure on the system to change.
- The rapidly evolving field of “legal tech” enables us to use emerging technologies like digitization, process automation, data and analytics, AI to completely reimagine how a 21st century, the citizen-centric legal system should work.