Illustration: Anthony Lawrence
Indian courts are getting digitised but there are hiccups on the way—slow conversion of case records, red tape, incompetently executed renovations and clients who aren’t tech savvy
~By Sucheta Dasgupta
Time, place and threat to witness safety are no barriers to perfect justice in a technologically-enabled world. Hence in 2005, the Supreme Court e-committee, headed by Dr Justice GC Bharuka, a retired judge of the High Court of Karnataka, presented the National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian judiciary to the chief justice. The e-courts project was born.
The project was to be implemented in three phases. In the first phase, computer server rooms and judicial service centres were to be set up in all 15,000 courts operating from around 2,500 complexes in India. The second phase would entail provision of ICT coverage of the judicial process from filing to execution. In the third, information gateways would be created between courts, public agencies and government departments. The second phase is ongoing and is being implemented by the National Informatics Centre.
It is reliably learnt that all 24 High Courts functioning from within 39 complexes across the 29 states and seven Union Territories have their respective electronic Case Information Systems (CIS) and are connected to the National Judicial Data Grid (NJDG). The case load on that grid is 42 million. There is a separate NJDG for subordinate courts. In most High Courts, the court fee is payable electronically. Almost all HCs and many district courts have video-conferencing facility. And the total number of electronic judicial transactions conducted all over India is a stupendous 142.1 crores.
So has digital utopia arrived in the courtrooms of India? Prof. NR Madhava Menon, founder director of the National Law School of India University and National Judicial Academy, Bhopal, told India Legal: “The NJDG is a big achievement. It is constantly updated. How much work has been achieved can be known from logging on to it. Twenty years ago, we used to talk about arrears, delays, etc., in terms of perceptions. Now, we have exact knowledge of the ground reality, thanks to digitisation.”
In High Courts, daily and monthly cause-lists are being generated electronically and shared on the respective websites, but conversion of case records to soft format has been slow and has left a lot to be desired. Besides, the ground reality may be totally different. This can be gauged from a news report which said that in 2016, after checking 800 case records with 13,800 hearing dates on the e-Courts website for a magistrate’s court in Maharashtra, a survey team found that there were only 35 case records with a total of 86 order sheets available among them!
In the Delhi High Court, despite the Digital India push by Prime Minister Narendra Modi, some judges still conduct proceedings the old-fashioned way by reading the hard copy of documents pertaining to cases.
Litigation Made Easy
The J&K High Court shows how digitisation can make a difference in the judiciary and the lives of ordinary people
In 2014 when the Jhelum flooded, wreaking havoc in its wake, the records of the Jammu & Kashmir High Court were also affected. A submerged High Court meant the destruction of numerous case files and records. While many of these documents were recovered and put out to dry in the sun, they were afflicted by mould, causing infection to those handling these files, be they registry staff or judges.
On April 1, 2017, Justice Badar D Ahmed took over as the chief justice of Jammu & Kashmir High Court armed with the knowledge of changes he had wrought in the Delhi High Court e-courts system. One of his early actions was to try and minimise the above mentioned recurrence. This High Court moves twice a year between Jammu and Srinagar. This means that not only do people travel, but so do lorry-fuls of files. For about a week, the chief justice’s secretariat finds it difficult to function as it can’t access files in transit.
Realising that the need for digitisation was dire, Chief Justice Ahmed began the process of starting e-courts in the Jammu & Kashmir High Court. Work which took about five years to achieve in Delhi took about six months in J&K. This was largely because of previous experience and partly because of the huge amount of support he received from his colleagues on the bench, the bar and, more importantly, from the government which allocated resources, monetary and otherwise.
What followed is a useful blueprint for other High Courts and states, should they wish to combat pendency woes, which stem mostly from a paucity of judges but can be partly assuaged through the use of technology. Chief Justice Ahmed began by commissioning a project report by personnel from the Supreme Court e-committee of which he was a member and the National Informatics Centre (NIC) to ascertain what the requirements would be. A budget was prepared, hardware and software acquired, and the first step, that of scanning old files, begun. Then current files were scanned.
What this achieves is saving time when a case is being heard. A judge going through the file to write her judgments can access annexures, specific pages of the file, evidence, case law that has been cited, etc., at the click of a mouse. The judge can see multiple documents at once, making comparing easy and deftly copy notes to the side of the screen. Using Vacom and Microsoft One Note, Chief Justice Ahmed devised a method in Delhi whereby the judge can take notes using a stylus. The system eventually learns to recognise reasonable handwriting written with the stylus and can index the work immediately. It’s even possible to add a sticky note wherever and use it as a complete annotation software.
Such a system is particularly useful for criminal cases. Evidence such as fingerprints can be enlarged on the screen and viewed with greater clarity than peering through a magnifying glass at pieces of paper. An e-court services app provides information about cases in district courts.
Video-conferencing was the next change introduced. On a visit to the courts in Kargil and Leh, Chief Justice Ahmed was approached by groups of people who wanted a bench of the High Court in Leh as commuting to Srinagar or Jammu was considerable hardship for residents of these far-flung parts. He addressed the problem by introducing video conferencing and before demitting office in March 2018, conducted some hearings. This facility enables, for example, a lawyer in Kargil and one in Jammu to be heard simultaneously by a judge in Srinagar.
Video-conferencing is particularly helpful in J&K with its issues of terrain and commuting and the threat of militancy. It is also helpful in the case of transfer petitions, which can be heard only by the chief justice. This would mean that while he is sitting in Srinagar, such cases would pile up in Jammu or vice versa. Many transfer petitions are filed by divorcing couples living in different towns, vying with each other to have the hearings in the city they live in. With video-conferencing, there is no more piling up of petitions.
Screens and projectors in court-rooms allow lawyers to make presentations to fully explain a case. They can be used by a lawyer in an intellectual property case to show exactly how a TV advertisement harms his client’s product, rather than the story board format that is supplied to judges in the earlier non-technologically era.
E-filing was the next step. Eventually, this can enable even someone living abroad to file a case or give his reply via the electronic medium without having to fly down. It also enables cases approaching the limitation time to be filed up to 11:59 pm of the last date rather than 5:30 pm when court staff leaves for home.
The benefits of technology are useful in other areas as well. Under Chief Justice Ahmed’s able stewardship and the active support of Justice Magrey, the High Court managed to get the government to set up eight Juvenile Justice Boards in a state where there was none earlier. Within just a few months, each of these boards catered to a clutch of districts. Orphanages and observation homes were improved and increased in number. The use of technology also helped in criminal cases, with those languishing in jail being identified and dealt with more speedily.
In the midst of all the gloom and sadness, the story of changes in the Jammu & Kashmir High Court brings to life the old aphorism: “Where there is a will, there is a way.”
In Division Bench-1, there is less use of the computer during proceedings and more reading from the hard copy of files. Similar is the situation in division benches III, IV, VI and VII where there is no use of any digital devices. However, some judges in Division Benches II and V have kept pace with time and avoided using hard copies of documents. A bench of Justices S Ravindra Bhatt and AK Chawla, dealing in civil matters, has said no to the paper trail and gone completely digital. Again, a bench of Justices S Muralidhar and IS Mehta dealing in criminal matters uses digital devices. Other benches like DB-VIII, presided over by Justices Siddarth Mridul and Deepa Sharma, has also gone paperless.
On the other hand, single-bench judges dealing in civil, criminal and original jurisdictions (court numbers 12, 13, 16, 22, 23, 24, 25, 28, 29, 30, 32 and 35) hardly use any digital devices during proceedings. The only single-bench judge who is using digital devices is Justice Rajiv Shakdher. Similarly, three other judges from Original Jurisdiction Civil (court nos. 19, 20 and 21) and three judges from Criminal Jurisdiction (court nos. 26, 27 and 31) actively use digital devices during proceedings. In short, more than half of the total strength of High Court judges is not using any type of digitisation in courts.
And then again, mere digitisation of records is not enough. In 2017, newspapers widely reported that the Supreme Court had scanned 1.05 crore page records. But they forgot to mention that only scanning and uploading records is not the way to make them readable, searchable and accessible. All details must be entered electronically in discrete fields. Otherwise, what is illegible on paper remains illegible on the computer, thereby defeating the very purpose of the digitisation.
But for this, one requires manpower. Since 2013, as case information system software development progressed, the number of fields required for input of information in every case rose from 20 to 200. An overworked court clerk, who is the actual creator of the database (the litigant, judge and lawyer are only consumers), is bound to skip some of the fields as he handles a huge number of cases daily. This is over and above the humongous number pending—54,719 in the Supreme Court, 34.27 lakh in High Courts and 2.6 crore in subordinate courts. As records are scanned and uploaded, another problem that crops up for advocates and litigants is how to make amendments to a pdf file of an affidavit or an appeal after it is generated and digitally signed? One has to go through the process of generating it all over again as correction through an optical character recognition interface would still require use of the human element and nearly the same effort.
Another area that needs attention is the cross-referencing of judgments. This can be done electronically through hyperlinks and would greatly reduce judgment length and improve its readability, accessibility and quality. An average judgment is around 500-600 pages. The 1973 Kesavananda Bharati vs the State of Kerala case judgment, for example, is 703 pages, and the Supreme Court Advocates-on-Record Association vs Union of India (2015) judgment is the longest at 1,030 pages. Judges, as a matter of course, cite case precedents which increase the length of the judgment. To make the best of digitisation, they must learn to only refer to the cases in their judgment rather than describe them in detail as is the norm today.
But there are practical difficulties, especially for judges. There is the digital divide in terms of age and generation gap. Most judges are above the age of 50, and though they are being trained, it is not easy for them to pick up the basics of a computer and master the skills of navigating various electronic applications, let alone learn the nuances of online adjudication. This holds true even though the apex court’s seniormost judge, Jasti Chelameswar, once famously said: “If the Pentagon has Wi-Fi, why not the Supreme Court?” As for lawyers, the reality is only slightly different. Many have learnt to use the online system for the sake of survival, some haven’t. Even so, a large section still prefers to meet clients personally. This practice deters them from using the e-court network. Unscrupulous ones even like to withhold information from clients; they do not relish the idea of case information being displayed virtually and available at the click of a mouse.
“A rollback would be regressive”
How much work remains to be done on the e-court project?
The nuts and bolts of the project allow you to transit into the electronic mode of functioning completely. At the functional level, it means lots of data collection, collation, digitisation of files and court orders and uploading them on a day-to-day, real-time basis. If one has to achieve 100 percent digitisation, where all work is performed in a digital environment and where all courts are eCourts, the entire court establishment has to be overhauled. Right now, a part of court-related administrative work has been digitised. At the moment, 12 judges of the Delhi High Court are functioning in eCourts. Electronic courts exist in a few subject matters such as tax jurisdiction, arbitration cases and company cases for the past five years. This has meant that the over 10,000 cases filed in the last five years have no papers. But it is a work in progress. Not all courts are eCourts; at least 75 percent of cases filed are in hard copy, paper format. Also, we have not yet transited into the electronic format to the extent that digital signatures are insisted about. As not everyone has one, the client’s signature on the vakalatnama is in paper format, as also the affidavit. This means that in electronic cases, 3-4 documents are on paper, while the remaining ones, whether it is 50 pages or 5,000, are in digital form. The High Court has not yet mandated complete digitisation which means uploading cases by lawyers and litigants on account of security. Connectivity has not happened because of this. The files are all server-based. As long as adequate firewalling and securing filing is not in place, the Court would not go fully digital. The complete architecture for that, however, has been devised.
At the macro level, the eCommittee of the Supreme Court has created a unique project the likes of which is not found anywhere in the world—the National Judicial Data Grid. It has now entered the third phase where all courts in India are connected and integrated on a daily basis, uploading court orders in each case so that the exact movement and tracking of cases is possible.
What are the challenges you faced when this transition was happening?
Individually speaking, I was the first one to do this. It was a novel experience. However, I was familiar with technology because I had been using computers for 20-22 years before the eCourt was launched was on December 15, 2009. It was quite challenging for us judges. Some cases were extremely voluminous. They were difficult for judges to crack. In such cases, the transition proved to be providential as the files could be accessed accurately instantaneously.
My interactions with colleagues who have presided over the eCourts over the last year have shown that everyone has improvised and found their own comfort level with technology. Each judge uses the system in her or his own way and keeps learning. That’s the beauty of it. Those who use the technology will know its benefits.
Do you foresee widespread use of technology by lawyers and judges in the coming years?
Experience has shown that it is difficult to impose change. Advocates, specially senior and aged counsel, either hesitate to use it, or are reluctant. Some feel that they are too old to learn and are diffident. The good news for them is that though the files are digital, there is no compulsion that when they appear in court, they have to use digital files; they can read from paper files.
As far as judges are concerned, some are comfortable; a few are reluctant to use technology. Some have other issues. In all those cases, there is no question of imposing technology. Yet in areas where digital filing prevails (where the court has no hard copy or paper files), the judges will have to adapt and use technology. In such cases, it would perhaps be regressive to let paper files return as it would mean making valuable shelf space available where for the last five years, no such space was needed. Also, it might be a substantial setback to the e-Court project if there is a rollback. However, talk of this is doing the rounds.
Do you think lawyers can use technology in other ways?
One possibility for use of technology by lawyers is to have tele- or video-conferences. Sometimes litigants might prefer to meet lawyers personally because of confidentiality issues or if they want to show documents. But on the other hand, a Skype conference often solves the problem of time and large distances. An example of technology is the use of video-conferencing by High Court legal aid lawyers who can speak to undertrials before appearing for them in bail cases. Previously, when such litigants were provided legal aid, it was difficult for lawyers to meet them because of the time and distance involved. This meant that if the client wanted to share some facts or even pass a message to his family, it was next to impossible. Video conferencing has to some extent eliminated this barrier. I am sure that as time passes, more uses of technology will be discovered.
The Delhi High Court has constructed a new block which is state of the art. Apart from being eco-friendly, every court is potentially an eCourt to the extent that in the not too distant future, counsels and advocates may be able to appear through video conferencing. Even today, in the existing court system, video conferencing is resorted to for recording evidence and deposition of outstation and overseas witnesses. This has been a boon, as it enables litigants to save money, travel and time.
How would you compare your e-court with a court in a country which has made a lot of progress?
I have seen Australia and it has an excellent eCourt system. Yet there is no comparison. Those courts do not handle the kind of volume of cases like we do. The volume itself sets us apart. The Australian Federal electronic court architecture is a seamless end-to-end integration. In the federal system, which is not a very large one, a litigant can file from any geographical location. There is vertical integration. The lower courts’ judgments are in the court server system. The litigant has to merely file an appeal and tag the lower court order; the system is such that the files of the lower court or tribunal and the judgements are automatically linked with the appeal file. This has been tried in our criminal roster—especially in sessions cases, murder appeals, etc.
Another issue is the longevity of the technology being used. Already, Rs 935 crore has gone into setting up the system. There are fears that by the time users get a hang of it, the operating system software may be redundant or the hardware may have changed and applications become obsolete.
Incompetently executed renovations and website upgrades, too, very often leave users in a limbo. For example, when the Supreme Court site was moved last summer, lawyers, returning after the break, found that the old website had been replaced by a new one, but daily cause-lists, old judgments, case statuses and orders had disappeared. A few weeks back, the new site was also reportedly hacked. If these happen too many times, they cannot be laughed away as teething troubles.
There are also instances of bureaucratic red tape derailing the project. In some courts, third-party vendors have been hired for setting up and maintaining applications. But here too glitches can occur. Some time back, in a Kerala court, the court-to-prison video conferencing facility was stopped because the government had not paid the company that had set up the facility and was running it. Even where this facility is up and running like in Chhattisgarh High Court, it is seldom used. As far as video-conferencing is concerned, Maharashtra, Telangana and Andhra Pradesh and Karnataka have been the top performers. The Punjab and Haryana High Court, too, has done exceedingly well and can serve as an example for others. (See box.)
India has the highest number of internet users, which is estimated to reach 500 million by June 2018. However, its automation of jurisprudence has been slower than other countries.
- Asia’s leader in this field is Turkey. Winner of the United Nation’s public service award in 2012, it now has a national electronic service across all its judicial functions. Lawyers and citizens can examine files, pay application fees, submit their documents and claims and file cases electronically to any court in the land.
- The United Kingdom, on the other hand, has been tardier in this respect. Lord Justice Briggs, a UK Supreme Court judge, proposed “radical digitisation” of all civil courts in that country only in 2016. LJ Briggs’ report recognises, however, that the success of the project will require significant behavioural changes from practitioners if it is to come to fruition.
- In Australia, the federal court was the first judicial setting to put in place electronic court files, and is now seen as global leader in how to manage digitised court documents. However, it is yet to upload all administrative records in digitised format.
- In the US, many state courts are on their way to becoming fully paperless. The US Supreme Court, meanwhile, is still planning to introduce full electronic filing of different types of motions and applications, though even after this, paper filing will still be required for some processes.
But there are so many areas where work remains. These include setting up processes for e-evidence, e-notary, e-claims, machine learning and artificial intelligence, cloud management and GPS. It is technically possible to track an official when he goes out to serve a summons right up to the doorstep of the defendant. If the defendant is away, he can then click a photo of the locked door and forward it instantaneously. But what if the person concerned has been emailed the summons and he never accesses the account?
Yashwant Anand Goswami, member, Supreme Court e-committee, tells India Legal: “There are only four jurisdictions where total digitisation is currently possible. These are tax, company law, intellectual property law and arbitration. In criminal matters or land disputes, this is largely impossible. How can you get your client to function electronically if he is illiterate or does not have a mail ID? If your country is underdeveloped and your people are digitally naive (see box), work will happen in a mixed mode.”
Leading by example
The Punjab and Haryana High Court is miles ahead of other high courts as far as use of Information Technology (IT) is concerned. Besides being first in taking initiatives pertaining to IT, the court ensures subordinate courts in the two states adopt the use of technology for speedier and efficient justice system. All records of the Court have been digitised.
Under the www.india.gov.in, only the Punjab and Haryana High Court site has a five-star rating. Even the Supreme Court website has only a four-star rating. Most other high courts have poor ratings.
The process of digitisation in this High Court started over a decade ago and it is keeping abreast with the latest technology. The IT cell of the High Court, overseen by a judge, ensures that all the daily orders in the High Court as well as subordinate courts in the two states are uploaded as soon as these are signed.
Subordinate courts in the two states are making maximum use of video conferencing for remands and bail applications. All courts have been provided facilities which save on time, expenses on transport and security and ensure safety.
Another facility that has been provided to all subordinate courts is recording of evidence by doctors through video conferencing. All government hospitals and dispensaries, including PGI, Chandigarh, have been provided facilities for video conferencing so that the doctors can testify from their place of work. A study has now established that the expenditure has already been recovered from saving the amount of money spent on doctors visiting courts. It also makes doctors available for their patients.
In another unique initiative, the High Court has linked up with government-run Common Services Centres. Citizens can now obtain copies of court orders through these centres which are spread out in villages of both states.
Lawyers are encouraged to file petitions online. They get the additional benefit of getting their cases listed for hearing the very next day of filing. Those filing hard copies may have to wait for a hearing for another day. SMS or text messages are sent to lawyers to remind them of the next day of hearing. The same facility is provided to petitioners who register their telephone numbers.
—Vipin Pubby in Chandigarh
Access to justice is every individual’s fundamental right, according to Articles 21 and 14. But the path to paperless functioning is far from easy.
(Inputs from Neeraj Mishra in Raipur and Kunal Rao in New Delhi)