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A virtual discussion hosted on Zoom by Agami saw former judges and senior lawyers discuss the challenges faced by the Indian court system in moving towards institutionalising the use of technology.
What stops the Indian court system from institutionalising the use of technology in the administration of justice?
A virtual discussion hosted on Zoom by policy think tank Agami saw former judges and senior lawyers opine that a major obstacle to moving towards online courts in the long term has to do with mental blocks.
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Former Supreme Court judge, Justice BN Srikrishna observed during the discussion that there is sufficient technology available to implement an online court system. However, he pointed out,
“Whatever is available to use, why don’t you make use of it for tiding over the emergency? In the meanwhile, develop your own software, hardware to your own specific standards which will meet the Government approval. There should be no difficulty at all ... Why should this be restricted to the lockdown? Why can’t it be a permanent feature?”
Justice (retd.) Madan Lokur, who previously headed the E-Courts committee of the Supreme Court, also agreed, observing that,
Referring to various e-initiatives already available for use, he proceeded to remark,
"Have we cashed in on this? We have not. That’s where the change in mindset comes in, that's where the proactive judiciary comes in.”
To illustrate, he pointed out that the 14th Finance Commission had proposed a grant of Rs 700 crore for acquiring the software needed for the digitisation of court records. However, not one High Court took up the offer, Justice (retd.) Lokur recounted.
He further commented,
“Why are we not making use of all these resources that we have? Once we are able to do that, things like court management and case management - all that would be taken care of.”
Senior Advocate CS Vaidyanathan pointed out that opposition to a proposal to move towards online courts is likely to come from within the legal fraternity itself.
It was noted that lawyers may have apprehensions that they may be ousted from the profession and, therefore, resist the change. He remarked,
That being said, he also observed that shifting to online courts is likely to make substantial changes in terms of case disposal.
“… even if we are able to achieve 25-30% of the cases to be disposed of by online courts, I think we would have seen a seismic change…”
Advocate Jamshed Mistry spoke about the importance of prioritising transcription of court proceedings, especially given the objective of open justice.
He recounted that transcriptions of court proceedings were prepared as early as 1908 in the sedition case against Bal Gangadhar Tilak before the Bombay High Court.
”What happened between then and 110 years later? Why was transcription shown the backdoor?”, Mistry queried, going on to point out that the International Court of Justice today makes transcripts of its proceedings publicly available the very next day.
He added that such practices are not only beneficial for law students, but also for the media in ensuring accurate legal reporting.
This apart, he opined that courts were likely to continue using technology in the future. He said,
“I don’t see this as an ad hoc system. And I think we can probably have a hybrid of matters happening in court and through a video system.”
Senior Counsel Gopal Sankaranarayanan also spoke on the need to maintain transcriptions. He said,
He explained that,
"Today, we have conflated a ‘record’ of what has taken place, of proceedings as it were, with the orders that the court dictates. These are two different things.
The order is the direction of the Court. The ‘record’ is what took place in court - what one side said, what the other side said - and those records have to be publicly available.”
Senior Advocate Sajan Poovayya emphasised that the development of a common protocol was crucial to ensuring sustainable virtual courts.
“The first thing you should have is a uniform protocols for digitising records and maintaining them in a particular file format. We have a unified judiciary. Why shouldn’t every court in the country have a common protocol in which records are digitised?”
Poovayya further pointed out that the present COVID-19 pandemic should not be viewed as the initiator of change.
Poovayya went on to address security concerns over using platforms developed by third parties. On this issue, he also com
“By definition, our courts are public places. By definition, the security protocol should not really trouble our minds. It’s a mindset issue that we don’t want io use a third party software; it’s a mindset issue that we want the NIC to re-invent the wheel when there are wheels and wheel-less vehicles which are available.”
Senior Advocate Sajan Poovayya
He further opined,
“Out of the available technology that we have - which is third party technology - so long as a solid licensing mechanism can be worked out, so long as we have a simple uniform protocol that is developed, even the State need not invest in the infrastructure.”
He went on to point out,
"The minute you bring an ecosystem onto a common platform, then these questions will vanish…Why should somebody from Kerala fly to the Supreme Court for every hearing - sometimes for a hearing which lasts for 35 seconds?”
Sankaranarayanan also raised concern over the efficiency of the Vidyo application presently being utilised by the Supreme Court to hear urgent cases during the COVID-19 lockdown.
He pointed out that owing to constraints in sharing links to join the video conference, inherent in the software, several issues had cropped up in hearings. He remarked,
"It’s pathetic, it cannot be used, there is no question about that being replicated or used on a larger scale … We only had about 10 or 11 cases listed … it should have been done in a matter of 45 minutes or an hour. It took 3 and half hours because the link had to be sent repeatedly, because many links broke halfway through the arguments. Things fell apart.”
In this backdrop, Sankaranarayanan also spoke of the need to secure foundational aspects including bandwidth, and sorting out licenses when it comes to implementing virtual hearings. He added that the use of technology would also help differently-abled people to gain better access to courts.
Amita Katragadda, Partner at Cyril Amarchand Mangaldas (CAM), spoke on how the present circumstances must be viewed as an opportunity to do new things, rather than do old things in new ways.
“We should be fundamentally re-imagining what the judicial system would look like”, she said.
Anuradha Mukherjee, also a Partner at CAM, spoke on why the digitisation in Indian courts is still basic. She opined that the present time presents an opportunity to have all filings - including those at the district level - digitised.
She further commented,
“We should have a judicial platform where I can, from my office, file a petition without having to go to the Court premises… “
Moderator of the discussion and co-founder of Agami Supriya Sankaran noted that difficulties in changing mindsets appeared to be the undercutting issue.
Justice (retd.) Krishna opined that the present circumstances should be taken as a challenge to change the whole system.
“If the judges and lawyers realise that this lockdown is going to continue for 6 months to one year, I think mindsets will necessarily have to change.”
Poovayya weighed in that the judiciary would have to engage with outsiders including technology experts and research organisations to institutionalise the use of technology.
“Multiple thought processes have to converge. If we are taking this process towards an institutional change, the judiciary must realise that it cannot do it within itself”, he said.
“I don’t think it’s the judges' business to handle the administration of courts. We need to remove that from judges completely, that is not their expertise. Their expertise is adjudication, let them stick to adjudication. We have few exceptions (in judges) who are able to embrace more, but the majority of them clearly aren’t.”
He opined that the task of technology administration should be assigned to outside experts, who, unlike Registrars, are not beholden to judges.
“Otherwise, we are just going to keep on waiting for judges with the right mindset to come in”, he said.
Justice (retd.) Lokur opined, on a concluding note,