Technology may be a game changer, but it is not a panacea for the plight of the courts
In early June, in the course of dealing with issues arising in relation to the CoWIN portal, Supreme Court points to some major bottlenecks in the distribution of vaccines people at large. They were: insufficient digital literacy, inadequate digital penetration, and serious issues of bandwidth and connectivity across the country, especially in remote and inaccessible areas. Despite the ambition of taking the benefits of vaccination to every human being in the country, the policy was falling short of its target due to inherent difficulties. The premise in the court’s comments was that relying solely on digital transformation may not be a good idea. This could result in the exclusion of a large part of the population due to the calculated shortage. Soon after, the government said that CoWIN registration would no longer be mandatory for vaccination.
rising to the challenge
What the court observed about the delivery of vaccines only through digital portals is equally true of the delivery of justice, which is as important as ensuring the health of the people of the country. Although the courts have risen to the challenge posed by the COVID-19 pandemic, it is proving to be an uphill task, using existing technology at unprecedented scale and speed. In the wake of the pandemic, courts honestly started using facilities like e-filing. In May 2020, the Supreme Court also introduced another innovation: a new system of e-filing and artificial intelligence-enabled reference. This was to usher in efficiency, transparency and access to court delivery services for every user.
The effort of the judiciary is not just a one-off action to deal with the emergency arising out of the pandemic. It seeks to use technology to overcome and overcome incurable diseases that have long plagued the judiciary. These include massive backlog of cases across the country and unacceptable level of judicial vacancies at all levels. Every court requires deep cleaning of the house and also needs to be accessible to all litigants in a cost-effective, convenient and efficient manner. Perhaps, this may be the opportune time to make permanent changes that can replace the crumbling justice delivery system in India. But over-reliance on technology is not a panacea for all problems facing courts and can backfire if done without thinking.
Let’s take the vaccination analogy a little further. As the rigorous process of vaccine trials is a pre-requisite for launching universal immunization programmes, followed by incorporation of technology across the board, performance audits and sandboxing measures are used to carefully understand and measure potential and risks. It will be mandatory to take . Evidence shows that the performance of the judiciary during the pandemic period left much to be desired, starting with Phase 1 of the e-Courts in 2007, despite considerable investments to digitize judicial infrastructure and administration Is. In absolute terms, the data shows that pendency reached an all-time high during this year of virtual functioning of courts. As per the National Judicial Data Grid, in the case of district courts, there has been a sharp increase of 18.2 per cent in cases pending between December 31, 2019 and December 31, 2020. Among the 25 High Courts, pendency saw the fastest growth of 20.4% in 2019-2020. Of course, this does not include all cases that were never filed.
road ahead
Given that the pandemic has taken all institutions by surprise, there is bound to be early trouble. However, now that we are in its second year, our next course of action should be based on an evidence-based rational approach. For example, we need to study and understand that video conferencing in criminal cases has neither shortened trials nor reduced the number of people awaiting trial. Similarly, we need to address uneven digital access: while mobile phones are widely owned and used, access to the Internet remains limited to urban users. Lawyers in semi-urban and rural districts find online hearings challenging, mostly due to connectivity issues and unfamiliarity with this way of working.
Just as doctors cannot be replaced by chatbots, no matter how advanced the technology, they cannot replace judges, who have major drawbacks. The India Justice Report 2020 estimates 38% (2018-19) vacancies in high courts and 22% for the same period in lower courts. As of August 1 this year, more than four out of every 10 posts of High Court judges are vacant.
If deployed with adequate data-based planning and security measures, technological tools can be a game changer. However, the technology is not cost-neutral per se – that is, it is not immune to prejudices – and therefore, it must be properly evaluated for us to see whether it works to exacerbate the power imbalance between citizens and the state. or whether it affirms and advances the rights of citizens.
Open court is a key principle in dispensing justice. The question of public access cannot be sidelined, but it should be a central consideration. Lack of technical infrastructure often means that access to online hearings is reduced. This ad-hoc deviation cannot be allowed to become a habit of convenience.
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The latest vision document for Phase III of the e-Courts project seeks to address the digital deficit of the judiciary. It envisages an infrastructure for the judicial system that is ‘basically digital’ and reflects the impact of the pandemic on India’s judicial timeline and thinking. However, we must bear in mind that there will always be an inherent resistance to change, whether for good or for bad. Therefore, two pre-conditions need to be addressed: adequate trained manpower, and systems tailored to the specifications and contexts that we require. It is more a matter of mindset – not only of judges, but of litigants and lawyers as well; and is closely associated with a belief in digital interventions.
BN Srikrishna is a retired judge of the Supreme Court of India
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