India uses Covid-19 pandemic to push for online courts

The Indian Supreme Court is trying to accelerate long-pending digital reforms.
The Indian Supreme Court is trying to accelerate long-pending digital reforms.PHOTO: AFP

BANGALORE - On Monday (June 1), one courtroom in the Supreme Court of India went entirely virtual.

For the first time in the country's history, judges did not touch a single sheet of paper. Three judges in Delhi sat in court with their laptops, watching video presentations by lawyers and typing notes.

India wants this to be the new normal.

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

Judges are often presiding over cases from their homes over video hearings and reading submissions made electronically.

Although India is unlocking its stringent mobility restrictions now, the Supreme Court is trying to use the moment to accelerate long-pending digital reforms.

Video-conferencing has been used in civil and criminal cases in the country for over a decade.

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 video-conferencing and electronic filing of cases.

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.

Going digital, supporters believe, can save both litigants and courts time and money, and help the judiciary deal with its mammoth backlog of over 40 million cases. Litigants in remote locations or those with disabilities may also be able to access justice more easily.

 
 
 

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 video-conferencing, 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," added Justice Lokur.

Courts could also move to eFiling, ePay, and eSummons after training programmes, he added.

The transition will not be easy.

India has one Supreme Court, 25 high courts, 674 district courts, and thousands of magistrate courts and tribunals, consuming over 10 billion sheets of paper annually.

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

Lawyers say some courts have used video links that are not shareable, preventing lawyers from interacting with their clients during the hearing.

All courts do not use the same video platform, and the state-run platform is "outdated and unstable". The audio is often poor.

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 Jammu and Kashmir.

In a letter to the Chief Justice, 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 Bar 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 reform, raises concerns about due process. Over two-thirds of prisoners in India are pre-trial detainees.

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

Senior Supreme Court lawyer Dushyant Dave said: "A digital revolution in the Indian judicial system is a long process and at huge costs.

"If we are to digitise the documents of nearly 40 million pending cases in India, introduce eFiling 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 about a gradual transition. On May 24, Supreme Court Justice Chandrachud, who heads its committee for digital reforms, said: "I want to dissuade people from the idea that virtual court hearings are some sort of a panacea."

Justice Lokur said: "Under no circumstances should access to justice be curtailed... We need to make haste slowly."