The Supreme Court (SC) has registered a Public Interest Litigation on the basis of a child’s letter in favour of resuming in-person court hearings. Professional bodies like the SC Bar Association (SCBA) have also batted for physical hearings citing difficulties faced by lawyers. Conversely, at least three petitions, filed by lawyers and a journalist, have challenged the decisions of various High Courts to resume in-person hearings without an option for online hearings. Amongst other things, these petitions argue for a fundamental right to online hearings on the basis of right to equality, freedom of speech and expression, right to practice one’s profession and right to access to justice under the Indian Constitution. SC has refused to stay the High Court notifications.
The pandemic with its non-discriminatory infection rate (at least to some extent) made us see what was already true for the teeming millions, lack of means to approach the courts. Courts adapted through online hearings.
Let us test online hearings for access to justice. Access to justice is both a fundamental right in itself and a means to achieve other fundamental rights, assisting in bridging the right-remedy gap. After all what use is a right if it cannot be enforced? The SC in various judgments has read this right under Articles 14 (right to equality) and 21 (right to life) of the Constitution, including recently in Anita Kushwaha v. Pushpa Sadan (2016). In Anita Kushwaha, the court identified four specific facets of access to justice: effectiveness of adjudicatory mechanism, reasonable accessibility in terms of distance, speedy adjudication, and affordability of the mechanism.
Directly, online courts assist in bettering the facets of geographical accessibility and affordability. Let us take access to the SC as an example. Studies point out that there is a far higher chance of a case being appealed to the SC from the Delhi High Court than say from the farther Madras High Court, and from a state with a higher per capita income like Punjab than one with lower income like Uttar Pradesh. This skew in the background of the petitioners is also reflected in the kinds of cases that reach the top court. In this context, an online court system delivers beyond the demands for regional or circuit benches of the SC.
Lawyers, litigants, government officials, etc. can appear before the court from any corner of the country; access to electricity, internet, devices, and digital knowledge permitting. This saves many costs: multiple rounds of travel and lodging, opportunity cost of wage and work loss of the litigant (and in cases of government officers of the government), of hiring additional counsel in Delhi; costs sometimes wasted when the concerned bench is not sitting without warning. The SC as such a national court which can be approached from anywhere in the country, benefits the litigant as the primary stakeholder in the justice system, and furthers justice as a service.
Further, women lawyers – as argued by one of the petitions – may particularly benefit from online hearings. Fixing for the ‘potential trip wires’ associated with gendered structures, as the Harvard Business Review puts them, flexible working models (like hybrid court hearings) allow women to continue participation in challenging and well-paying work after childbirth and at other times of high domestic demands. Litigation can be physically strenuous for lawyers, and a hybrid work model also benefits lawyers who may be unable to travel because of disability or age. This adds diversity to the bar.
Yes, there are substantial issues with how the online system is functioning, as there are with the in-person system. These issues mean that the increase in access is incremental at best, yet every additional person being able to access counts.
For instance, online courts are yet to adapt to ensure a fair trial and evidence taking. The digital divide is enormous. The infrastructure in all the approximately 19,000 courts in India is not up to the mark. Many lawyers and judges have found it difficult to adapt. Judicial procedures have not been reengineered in many places. E-filing of non-OCR enabled documents, despite the inaccessibility of this process, continues, making it difficult for judges to access bulky records during online hearings. Anecdotal evidence suggests that the senior-junior relationship in an online court room is not as robust with the juniors missing out on important learnings. There is the grave threat of over-reliance on the non-value-neutral technology as a solution to everything. Imposing digital systems on physical spaces will only entrench the inequity of physical spaces more neatly in an algorithmic manner, aggravated by the absence of a data privacy law. These call for taking further steps forward, not moving backwards.
We are at crossroads with a rare alignment of stars to transform the justice system for the better: a Chief Justice who has keen interest in bettering access, a Department-Related Parliamentary Standing Committee Report on Functioning of Virtual Courts that has taken the discussion forward on the issues being faced with the online system with a solution-oriented mind-set, a draft vision document for phase III of e-Courts (E-Courts Vision Document) that has suggested a ‘natively digital’ justice system, and a pandemic that has forced the otherwise traditional justice system that prefers conventions and the status quo to drop its inertia. We must ride this tide.
A resumption to exclusive physical hearings will break the momentum making it difficult if not impossible to gather speed on judicial reform again (as was the case pre-pandemic) including implementation of the E-Courts Vision Document released early this year. This will give a fillip to other changes like better management of court records, live transcription, etc. Better managed court records, it is hoped, will also better the empirical research of the Indian court system. Most importantly, if multiple means (physical courts and online courts) are available to further a right (here access to justice), these should remain open for the right-holders to choose the appropriate means for them, under regulatory supervision of the court.
It is hoped that any decisions in this respect are made with the right-holder and fundamental right to access as the pivot (and not technology). The present was a forced pilot. We can build on this knowledge, with the engagement of all stakeholders through surveys and feedback, anticipating and tackling potential trip wires. This process must account for diversity within stakeholders, say, for lawyers, women, differently-abled, LGBTQIA+ lawyers must be consulted. Similarly, senior lawyers must consult their juniors to better the process for both.
Common Service Centres can be expanded and can act as nodal points of training for lawyers, apart from acting as justice service providers as envisaged in the E-Courts Vision Document. Judges will have to train their subconscious to not let technical glitches and teething issues be attributed adversely to a party. For instance, castigating lawyers for appearing from a stationary car, negates recognising the possibility of a lawyer having inadequate space or a silent working environment inside their homes. Learning from other dispute resolution mechanisms like tribunals, arbitrations, mediations, etc. that have been running online even pre-pandemic and have advanced their dispute resolution models can help the judiciary leapfrog by many years. The Delhi High Court seems to be facing far lesser issues than other courts and a report on the same would be insightful.
Moving forward from here, building on the hybrid model of functioning of courts, with the vision of a court system where every person has an equal right of representation and to seek remedy, the judiciary can expand and democratize the circle of rights, this time, also of the teeming millions.
(The writer is a Delhi based lawyer, and can be reached at [email protected])