Introduction
The novel Coronavirus has sent shock waves across the world causing mass suffering and deaths.[i] Social distancing has been the mainstay for protection from spreading of COVID-19 virus hitherto and in furtherance of the same, even the judiciary arguably has taken active steps. The Supreme Court (“SC”) laid down guidelines for court functioning through video-conferencing[ii] so as to ensure social distancing in these trying times. The SC had also issued a guideline for use of video-conferencing for all purposes in relation to under-trials[iii] for the same purposes.
The SC has used the words ‘temporary transition to video-conferencing’[iv] in view of the pandemic; however, the important question is whether the change should only be temporary? The blog shall be highlighting the steps already taken in furtherance of digitalization, pros and cons, along-with insights from other countries. In a conference held in January 2020, the Chief Justice of India (CJI) expressed a possibility for the development of Artificial Intelligence (“AI”) for the court system to ensure that undue delay is prevented in the delivery of justice.[v]
Besides this, paperless courts and a robust video-conferencing system are also vital for cost minimization, and for efficiency maximization, inter-alia, as it can help reduce adjournments in case a witness is not able to be present at the court, physically. The first of such acceptance of technological aid in court procedure was seen in the case of State of Maharashtra v. Praful Desai [vi] wherein, the Court interpreted the meaning of the word “presence” in a wider sense and held evidence by way of video-conferencing as evidence in presence of the accused. This case stands in contradistinction and removes the hurdles posed, with the U.S. Confrontation Clause[vii] where ‘presence’ has been interpreted to mean presence in person[viii] only except in cases of ill witnesses[ix]. In a case decided by the Madras High court[x], video-conferencing (“VC”) was allowed with the intention of reducing, the travel woes of the accused, and the manpower, and monetary loss of the government.
Existing Set-up for Digitalization in India
In the initial stages of Digitalization, the E-courts Mission Mode Project was launched, as part of the National eGovernance Plan (NeGP). The first phase of implementation started from 2010-2015, though the work started from 2007 itself.[xi]
The aim was to make the justice system affordable, accessible, cost-effective, predictable, reliable and transparent.[xii]By 2015, the presence of district and taluka courts were secured on the National Judicial Data Grid (“NJDG”)[xiii], and 14,249 courts[xiv] were computerized with the installation of the Case Information Software (“CIS”) which provides the daily status of a litigant’s case, the orders of the case, hearing date and the progress of the case on any particular date etc., online from any part of the world. The NJDG system[xv] stores data regarding pending cases, disposed cases and total cases under different heads. It is now working at its full force and has several Business Intelligence Tools that further enhance the working of this system.[xvi]
In phase II of the project, starting from 2015 to 2019, systems were installed for connection with jails; and desktop video conferencing for recording of evidence in sensitive cases like sexual offences where the technology has been put to use as well.[xvii] Portals like ‘epay’, ‘efiling’ and ‘e-courts services’ and applications like NSTEP, ‘JustIs’ have been launched under this phase which has ensured continuous growth towards digitalization.[xviii] The e-filing mechanism[xix] has been a great boost for paperless courts since it has ensured that filing of petitions is done online and that minimal hard-copy printing takes place. Despite the advent of the e-pay portal, its applicability is limited to only a few districts/divisions within 11 States/UTs.[xx]
In the Objectives Accomplishment Report, 2019 published by the SC, it has highlighted both the successful and pending steps under the Project.[xxi]Certain heads of the project have been taken over by the 14th Finance Commission[xxii] and it is a glaring issue since in the pursuit of complete digitalization, processes like scanning and digitization of case record and court record room management, inter alia, are extremely essential and the same is not under the NeGP Project anymore. Interestingly, judicial officers and court staff have also been provided with a digital signature token for authentication of the documents.[xxiii] In contrast, the task of cloud computing of databases and applications being used by the courts is still in its nascent stage with the launch of pilot projects in one district of every state and the same has been very successful in Goa.[xxiv]
Video Conferencing
The first of paperless courts started way back in 2010 itself.[xxv] The High Court of Delhi was the pioneer in issuing the guidelines for video-conferencing in the courts in 2016[xxvi] and soon thereafter, the High Court of Himachal Pradesh[xxvii] also released its guidelines basing them on the former. Recently, in 2020 itself, Kerala HC has also released VC guidelines[xxviii], however, they are restricted to the needs in light of the Coronavirus.
The Delhi and Himachal Pradesh HC guidelines have used two key terms- court point and remote point. The former means the courtroom or a place where the court is sitting or where Commissioner is recording evidence while the latter is the place where the relevant person shall be examined by way of a video conference.[xxix] There shall be a Co-ordinator at the remote point for establishing a line of connection with the court point and for ensuring the basic minimum requirements at the remote point.[xxx]
The consent of the person being examined has been considered in the Delhi and Himachal Pradesh guidelines.[xxxi] Emphasis on the willingness of the witness for such purposes was also given by the SC in 2013[xxxii].
The importance of VC has been highlighted via the amendment to Sections 164(1) and 167(2)(b)[xxxiii] of the Code of Criminal Procedure, 1973. The following deal with recording of confessions and remand of under-trials respectively. Additionally, the Witness Protection Scheme, 2018[xxxiv] has also incorporated the concept of ‘live link’ through which witnesses may depose despite their physical absence in the courtrooms. Through VC, the witnesses can testify from a more protected place, added with no travel expense.[xxxv]Use of VC in case of cross-examination has been accepted in cases of sexual offences as in the case of Mahender Chawla v. Union of India[xxxvi]. Moreover, VC was recommended to be made part of one-stop centres[xxxvii] for the purposes of the POCSO Act, 2012.
Artificial Intelligence
Predictive Analytics and AI are increasingly being used and one of such modes is through CCTNS i.e. Crime and Criminal Network Tracking System.[xxxviii] This system works by predicting future offenders and hot spots for crimes for aiding in public policing. It is being implemented in India at a fast rate[xxxix]since its approval in 2009.[xl]Predictive Analytics may also help in indexing of cases and research and in finding the probability of winning the cases.[xli]
Ministry of Electronics & Information Technology, in its Report of 2019[xlii], has opined that AI may help in bringing information extraction effectiveness and increased data analysis. It may also help create an information database for easy access for public thereby, building public confidence.[xliii] The SC has also launched ‘SUVAS’, AI tool, in 2019 for translation of judgments or order from English to nine vernacular languages.[xliv]
Benefits of Video Conferencing
The mechanism of VC will provide a playback opportunity for verification of statements made by witnesses and accused.[xlv] Once recorded, they may also serve as storage of the whole case proceedings. Moreover, it shall also aid effective live streaming of such video-conferencing and make the system more participative which was also highlighted in the case of Swapnil Tripathy v. Supreme Court of India[xlvi]. Recently, Justice G.S. Patel of the Bombay High Court has also started with live streaming on a trial basis.[xlvii]
Such steps further reduce the expenses of the government in calling of witnesses from different places like under Section 3 of the Delhi (Payment of Expenses) Rules, 2015.[xlviii] The only expense would be the setting up of a Coordinator at the remote point. It also reduces the risk of inmates escaping along with further security risks, i.e. consequently “curtailing [additional] expenses”.[xlix]
D.Y. Chandrachud, J. observed in his dissenting opinion in Santhini v. Vijaya Venketesh[l] that adjournments and delays in justice delivery on the point of lack of availability or travel time can be easily resolved through VC, thereby increasing the number of cases being heard. In the U.S., Federal Judicial Center, a research agency of the United States federal courts, had carried out a survey wherein the response was in favour of VC on the grounds of its time-saving nature, flexibility and increased public access.[li] Moreover, the e-filing procedure is reducing paperwork and simplifying the process easier and also creates a system similar to single-window clearances.
Problems
One of the key problems has been data privacy. However, such inhibitions can be allayed in some form once the effective data protection mechanisms under the Personal Data Protection Bill, 2019 are in place. For security purposes, Judicial Officers numbers, CNR number and unique process IDs has been introduced in CIS, but only time can tell if they actually ensure the security of the records.
On 12.04.20, MHA released an advisory stating that ZOOM meeting platform is not a safe platform.[lii] On, 18.04.20, a petition has been filed to prevent the use of third party software like Whatsapp/ Skype/ Zoom, inter alia, and seeks the use and development of NIC based infrastructure/NIC audited infrastructure for communication and video conferencing for Judiciary and all government officials.[liii]
The issue of smooth transmission and requisite bandwidth is one that can cause trouble in the conducting of judicial processes digitally with call drops and image freezing among other things.[liv] Presently, the eCommittee has secured 1 MBPS bandwidth VC sessions in alliance with ‘Vidyo’ application.[lv]
Way Forward
Singapore introduced an Electronic Filing System (“EFS”) in 1997 itself where the EFS links the Judiciary to a number of service bureaux, law firms and other organizations to create a paperless environment.[lvi] In contrast, countries like the UK launched its Digital Case System in 2018[lvii] while Turkey launched its national electronic service[lviii] only in 2019and Hong Kong is preparing to go paperless in 2020[lix]. In comparison, efforts in India had begun early in 2010 but looking at Singapore, India will take time in establishing such a system.
There is a need for better technology for the establishment of public kiosks, self-help centres with user-friendly technology for the masses.[lx]The changes should not be rolled out in a big bang manner but only in a phased manner[lxi] with pilot tests of different VC software. This will also garner public confidence as it would allow the public to adapt to the changes.
Courts have started serving notices and summons through mobile applications[lxii] and are bending towards Online Dispute Resolution. By far, the most crucial step in digitizing the courts in the country is bringing about a change in the mindset of all the stakeholders involved, otherwise, digitalization is a pipe dream. The same was stated by Justice Madan B Lokur where he said that while there is no dearth in technological options, the judges need to be more embracing of changes.[lxiii] For matters like traffic violations, vehicle release from courts or consumer protection issues, digitalization would be the most beneficial as it would ease public access to courts. Though the practice of VC has been adopted in these tough times in specific situations typecast as ‘urgent matters’, the practice should not be a mere temporary transition but a stride towards an overarching transformation.
[i] –, ‘Coronavirus Pandemic’, WHO, 2020, available at- https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last accessed on April 10, 2020).
[ii] In Re: Guidelines For Court Functioning Through Video Conferencing During Covid-19 Pandemic, Suo Motu Writ (Civil) No. 5/2020.
[iii] In Re : Contagion Of Covid 19 Virus in Prisons, Suo Motu Writ (Civil) No. 1 /2020.
[iv] Guidelines During Covid-19 Pandemic, supra note 2.
[v] PTI, ‘Considering AI system for timely justice delivery, says CJI Bobde’, Business Standard, 2020, available at- https://www.business-standard.com/article/pti-stories/cji-mulls-ai-system-to-avoid-undue-delay-in-justice-delivery-120011100778_1.html (last accessed on April 10, 2020).
[vi] State of Maharashtra v. Praful Desai, (2003) 4 SCC 601.
[vii] U.S. Constitution, Amendment VI.
[viii] Christine L. Olson, “Accusations From Abroad: Testimony of Unavailable Witnesses Via Live Two-Way Video conferencing Does Not Violate the Confrontation Clause of the Sixth Amendment”, U.C. Davis Law Review, Vol. 41, 2008.
[ix] United States v. Gigante, 166 F.3d 75 (2nd Cir. 1999).
[x] Abdul Karim Telgi v. State, 2007 SCC OnLine Mad 760.
[xi] –, ‘E-courts: About us’, Ecourts Services, available at-https://services.ecourts.gov.in/ecourtindia_v6/static/about-us.php (last accessed on April 10, 2020).
[xii] Ibid.
[xiii] E-courts, supra note 8.
[xiv] Swapnil Tripathiv.Supreme Court of India, (2018) 10 SCC 639.
[xv] ‘NJDG’, available at- https://njdg.ecourts.gov.in/njdgnew/index.php (last accessed on April 11, 2020).
[xvi] eCommitee, Supreme Court of India, “Phase II Objectives Accomplishment Report As per Policy Action Plan Document”, Supreme Court of India, 2019.
[xvii] Atma Ram v. State of Rajasthan, 2019 SCC OnLine SC 523; Mahender Chawla v. Union of India, (2019) 14 SCC 615.
[xviii] –, “Indian Judiciary: Annual Report 2018-19”, Supreme Court of India, 2019.
[xix] Karnika Seth, “User Manual: E-filing procedure for High Courts and District Courts in India”, Ministry of Law and Justice, 2018.
[xx] ‘eCourts Digital Payment ’, ePay, available at- https://pay.ecourts.gov.in/epay/ (last accessed on April 10 2020).
[xxi] Phase II Objectives Accomplishment Report, supra note 13.
[xxii] Ibid.
[xxiii] Ibid.
[xxiv] Ibid.
[xxv] PTI, ‘India’s first paperless court takes off’, DNA, 2010, available at- https://www.dnaindia.com/india/report-india-s-first-paperless-court-takes-off-1345207 (last accessed on April 10, 2020).
[xxvi] –, “Guidelines for the Conduct of Court Proceedings between Courts and Remote Sites”, High Court of Delhi, 2016, available at- http://delhihighcourt.nic.in/writereaddata/Upload/PublicNotices/PublicNotice_CQ84SWB5.PDF (last accessed on April 10, 2020).
[xxvii] –, “Video Conferencing Guidelines”, High Court of Delhi, 2016, available at- https://hphighcourt.nic.in/pdf/VC%20_Guidelines_HP_HC.pdf (last accessed on April 10, 2020).
[xxviii] “Notification- A1-9763/2020”, Kerala High Court, available at- http://highcourtofkerala.nic.in/downloads/notice_guidelines_13042020.pdf (last seen on April 16, 2020).
[xxix] Ibid.
[xxx] Guidelines for Conduct of Court Proceedings, supra note 25.
[xxxi] Ibid.
[xxxii] CBI v. TunkayAlankus, (2013) 9 SCC 611.
[xxxiii] The Code of Criminal Procedure (Amendment) Act, 2008.
[xxxiv] The Witness Protection Scheme, 2018, available at- https://mha.gov.in/sites/default/files/Documents_PolNGuide_finalWPS_08072019.pdf (last accessed on April 11, 2020).
[xxxv] Riley A. Williams, “Videoconferencing: Not a Foreign Language To International Courts”, Oklahoma Journal of Law and Technology, Vol. 7, Issue 54, 2011.
[xxxvi] Mahender Chawla v. Union of India, (2019) 14 SCC 615.
[xxxvii] NipunSaxenav.Union of India, (2019) 2 SCC 703; Eera v. State (NCT of Delhi), (2017) 15 SCC 133.
[xxxviii] Elonnai Hickok, SumandroChattapadhyay, et al., “Big Data in Governance in India: Case Studies”, Centre for Internet and Society, India, 2018.
[xxxix] –, “CCTNS Pragati Dashboard as on 29.02.2020”, National Crime Records Bureau, 2020, available at- https://ncrb.gov.in/sites/default/files/PRAGATI%20Dashboard%202020.02%20ver%202.0%20for%20MHA.pdf (last accessed on April 20, 2020).
[xl] –, ‘Crime and Criminal Tracking Network & Systems (CCTNS)’, National Crime Records Bureau, 2020, available at- https://ncrb.gov.in/crime-and-criminal-tracking-network-systems-cctns (last accessed on April 20, 2020)
[xli] VikasSahita, “How artificial intelligence and machine learning will disrupt legal space”, VCCircle, 2017, available at- https://www.vccircle.com/how-artificial-intelligence-and-machine-learning-will-disrupt-legal-space/ (last accessed on April 11, 2020).
[xlii] Ministry of Electronics & Information Technology, “Report Of Committee – B On Leveraging A.I For Identifying National Missions In Key Sectors”, Government of India, 2019, available at- https://meity.gov.in/writereaddata/files/Committes_B-Report-on-Key-Sector.pdf (last accessed on April 11, 2020).
[xliii] Ibid.
[xliv] –, ‘Supreme Court Constitution Day | Introduction of Artificial Intelligence in Judicial Domain’, SCC Online Blog, 2019, available at-
https://www.scconline.com/blog/post/tag/supreme-court-vidhik-anuvaad-software/ (last accessed on April 11, 2020).
[xlv] Manoj Singh, “Use of Video Conferencing; Interference of Technology in Justice Administration”, IJLMH, 2018.
[xlvi] Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 639.
[xlvii] Live Laws News Network, [Breaking]After Kerala HC, Now Bombay HC To Live Stream Court Hearings From Tomorrow On “Trial Basis”,Live Law, 2020, available at-
https://www.livelaw.in/news-updates/breakingafter-kerala-hc-now-bombay-hc-to-live-stream-court-hearings-from-tomorrow-on-trial-basis-read-press-note-154981 (last seen on April 16, 2020).
[xlviii] The Delhi Criminal Courts (Payment of Expenses to Complainants and Witnesses) Rules, 2015, r. 3.
[xlix] Fern L. Kletter, “Annotation, Constitutional and Statutory Validity of Judicial Videoconferencing”, American Law Reports 5th, 2004.
[l] Santhini v. VijayaVenketesh, (2018) 1 SCC 1.
[li] Ibid.
[lii] Cycord Support Team, “Advisory on Secure use of Zoom meeting platform by private individuals (not for use by government offices/officials for official purpose)”, Ministry of Home Affairs, 2020, available at- https://www.livelaw.in/pdf_upload/pdf_upload-373207.pdf (last accessed on April 20, 2020).
[liii] K.N. Govindacharya v. Secretary General &Ors., W.P. (Civ) No. 1016/2019.
[liv] Chitranjali Negi, “Concept of Video-Conferencing in ADR: An Overview Access to Justice”, 19 September 2015, available at– https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2662344 (last accessed 9 April 2020).
[lv] Phase II Objectives Accomplishment Report, supra note 14.
[lvi] Media Releases, “Singapore Judiciary to Make E-Justice a Reality”, Supreme Court of Singapore, 13 November 2019, available at-https://www.supremecourt.gov.sg/news/media-releases/singapore-judiciary-to-make-e-justice-a-reality (last accessed 8 April 2020).
[lvii] –, ‘Digital court system saves enough paper to cover central park twice’, Gov.UK, 2019, available at-
https://www.gov.uk/government/news/digital-court-system-saves-enough-paper-to-cover-central-park-twice (last accessed 8 April 2020).
[lviii] L. Tickle, supra note 22.
[lix] Alvin Lum, ‘Hong Kong courts set to start going paperless this year, after a long period of deliberation’, South China Morning Post, 2019, available at- https://www.scmp.com/news/hong-kong/law-and-crime/article/3008004/hong-kong-courts-set-start-going-paperless-year-after (last accessed 9 April 2020).
[lx] Hon. John T. Broderick, Jr., “The Changing Face of Justice in a New Century: The Challenges it Poses to State Courts and Court Management”, National Centre for State Courts, 2010 available at-https://cdm16501.contentdm.oclc.org/digital/collection/ctadmin/id/1631 (last accessed 11 April 2020).
[lxi]Andrew Winning, “The Future of Paperless Courts”, Reuters, 2017, available at- https://www.legalexecutiveinstitute.com/wp-content/uploads/2017/01/The-Future-of-the-Courts.pdf (last accessed on April 10, 2020).
[lxii] SBI Cards Ltd. v. RohidasJadhav, 2018 SCC OnLineBom 1262; Kross Television India Pvt. Ltd. v. VikhyatChitra Production, 2017 SCC OnLineBom 1433.
[lxiii] K. Tripathi, “Embracing Technology Involves a Mindset Issue: Experts Talk About Justice During a Pandemic [Agami Video]”, LiveLaw, 8 April 2020, available at-https://www.livelaw.in/news-updates/embracing-technology-involves-a-mindset-issue-experts-talk-about-justice-during-a-pandemic-154961 (last accessed 9 April 2020).
By Aditya Vyas, Junior Editor and Malveka Nautiyal, Associate Editor, RSRR.