Monday, 21 Sep 2020

India uses pandemic to push online courts

On Monday, three judges sat in a courtroom in the Supreme Court of India with their laptops, watching video presentations by lawyers and typing notes.

Since the country entered a nationwide lockdown in March to prevent coronavirus infections, the Supreme Court and state high courts have heard only urgent matters, via videoconference.

The Chief Justice of India S. A. Bobde has said that “there is no looking back” – even after the lockdown is lifted, a combination of online and physical courts was the way forward.

Videoconferencing has been used in civil and criminal cases in the country for more than a decade, and in 2018, the Supreme Court ruled that court proceedings could be livestreamed for cases of constitutional importance.

Following the government’s norms on social distancing in early April, the Supreme Court dramatically expanded the use of videoconferencing and electronic filing of cases.

Going digital, supporters believe, can save both litigants and courts time and money, and help the judiciary deal with its mammoth backlog of more than 40 million cases.

Justice Madan Lokur, a former Supreme Court judge who spearheaded the computerisation of courts over the last decade, said: “Use of technology will greatly assist judges in expediting justice delivery without compromising on quality.”

Only oral submissions are now allowed, but videoconferencing, for instance, could include audio-visual, PowerPoint presentations and even short films.

“The current plight of migrants can be more effectively presented through a visual presentation rather than through oral submissions,” said Justice Lokur.

Courts could also move to e-filing, e-pay and e-summons after training programmes, he added.

But India has one Supreme Court, 25 high courts, 674 district courts, and thousands of magistrate courts and tribunals, using more than 10 billion sheets of paper annually.

And online hearings since March have revealed many technical and logistical problems.

Video links have dropped off because of unreliable network connectivity, including once, ironically, during a Supreme Court hearing on the restoration of suspended 4G mobile Internet services in the state of Jammu and Kashmir.

In a letter to Chief Justice Bobde, the Bar Council of India said that nine out of 10 lawyers and judges would not know how to use the technology. Litigants also often lack the knowledge or the means to use the Internet.

The council said: “If such practice is encouraged… the practice of law will be confined to a limited group of lawyers and justice delivery would be badly affected.”

A report by Daksh, a non-profit organisation that works on governance reforms, raised concerns about due process. More than two-thirds of prisoners in India are pre-trial detainees.

Ill treatment in custody is common, and is sometimes apparent only when detainees appear in person before a judge. Videoconferencing can also interfere with the right of a detainee to meet his lawyer or participate in his trial.

Senior Supreme Court lawyer Dushyant Dave said: “If we are to digitise the documents of nearly 40 million pending cases in India, introduce e-filing and video systems, it should start at the top, with the Supreme Court, and not the lower courts, which will struggle.”

The changes must be “a combination of digitisation and e-hearings with physical hearings”, he added.

Most judges and lawyers agree on a gradual transition. On May 24, Justice D. Y. Chandrachud, who heads the Supreme Court’s committee for digital reforms, said: “I want to dissuade people from the idea that virtual court hearings are some sort of a panacea.”

Said Justice Lokur: “Under no circumstances should access to justice be curtailed… We need to make haste slowly.”

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