debate-on-digital-justice-delivery

Context: According to June 2020, e-Committee data released by the Supreme Court, 3.27 crore cases are pending before Indian courts, of which 85,000 have been pending for over 30 years. 

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  • During the COVID-19 pandemic, physical courts were forced to shut down. 
  • Despite some hiccups, the Supreme Court and High Courts have been able to function online due to the e-Courts project.
  • But technology should operate within the constitutional framework of the fundamental rights of citizens. 
  • If not, technology will only further exclusion, inequity and surveillance.

Right to speedy trial

  • The Supreme Court has ruled out that the right to speedy trial in all criminal prosecutions is an inalienable right under Article 21 of the Constitution
  • This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well.

Supreme Court initiatives for speedier justice delivery

The eCourts Project 

  • It was conceptualized on the basis of the “National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary – 2005” submitted by eCommittee, Supreme Court of India with a vision to transform the Indian Judiciary by ICT enablement of Courts.
  • The eCourts Mission Mode Project, is a Pan-India Project, monitored and funded by the Department of Justice, Ministry of Law and Justice, Government of India for the District Courts across the country.
  • The Project envisages
    • To provide efficient & time-bound citizen centric services delivery as detailed in eCourt Project Litigant's Charter.
    • To develop, install & implement decision support systems in courts.
    • To automate the processes to provide transparency in accessibility of information to its stakeholders.
  • Ecommittee : It is a body constituted by the Government of India in pursuance of a proposal received from the Chief Justice of India 
    • It assists him in formulating a National policy on computerization of Indian Judiciary and advise on technological communication and management related changes. 
  • Phases of the project
  • The e-Committee of the Supreme Court of India recently released its draft vision document for Phase III of the e-Courts project. 
    • Phases I and II had dealt with digitisation of the judiciary, i.e., e-filing, tracking cases online, uploading judgments online, etc. 
  • Phase III of the e-Courts project: There is commitment to the digitisation of court processes, and plans to upgrade the electronic infrastructure of the judiciary and enable access to lawyers and litigants.
    • The document proposes an “ecosystem approach” to justice delivery. 
    • It suggests a “seamless exchange of information” between various branches of the State, such as between the judiciary, the police and the prison systems through the Interoperable Criminal Justice System (ICJS).
    • Inter-operable Criminal Justice System (ICJS) is a common platform for information exchange and analytics of all the pillars of the criminal justice system comprising of Police, Forensics, Prosecution, Courts& Prisons.

National Judicial Data Grid (NJDG): The NJDG for district & subordinate courts has been created as an online platform which now provides information relating to judicial proceedings/decisions of 16,089 computerized district and subordinate courts of the country. 

Mobile apps: Three applications of e-filing, e-pay, and NSTEP (National Service and Tracking of Electronic Processes) created under the eCourts project were launched by SC.

  • E-Filing
    • The eFiling application will facilitate efficient administration of Judicial System, as it will ease pressure on filing counters and will speed up work flow processing.
  • E-pay
    • The E-Pay application at ecourts.gov.in is a unified portal wherein facility to pay online court fees is provided.
  • National Service and Tracking of Electronic Processes (NSTEP)
    • It is a transparent and secure system for transmission of court process from one location to another, and shall address delays in process serving particularly for processes beyond jurisdiction.

Concerns

  • Poor implementation of electronic solutions: The eCommittee of the Supreme Court launched a mobile application called National Service and Tracking of Electronic Processes (NSTEP) expeditious service of notice and summons. But it is seldom used.
  • Also, there is a big digital divide between courts, practitioners and clients in metropolitan cities and those outside. 
  • Increasing class inequality: It has been pointed out by organisations such as the Criminal Justice and Police Accountability Project that the ICJS will likely exacerbate existing class and caste inequalities that characterise the police and prison system. 
    • Police’s discretion in data creation: This is because the exercise of data creation happens at local police stations, which have historically contributed to the criminalisation of entire communities through colonial-era laws such as the Criminal Tribes Act of 1871, by labelling such communities as “habitual offenders”.
    • The data collected, shared and collated through the e-Courts project will be housed within the Home Ministry under the ICJS.
  • Data privacy: The “seamless exchange of information” relies on large-scale gathering and sharing of data. 
    • The Supreme Court must take care not to violate the privacy standards that it set in Puttaswamy v. Union of India (2017), especially since India does not yet have a data protection regime.
    • Data can be a useful tool for solving complex problems. 
    • For example, to address the problem of cases pending simply for service of summons, Phase II of the e-Courts project saw the development of the National Service and Tracking of Electronic Processes, a software that enabled e-service of summons. 
  • Profiling and surveillance: No clear explanation has been offered for why the Home Ministry needs access to court data that may have absolutely no relation to criminal law. This process serves no purpose other than profiling and surveillance.
    • Unfortunately, there has been a dangerous trend towards creating a 360-degree profile of each person by integrating all of their interactions with government agencies into a unified database. 
  • The government is the biggest litigant.
    • There is too much litigation from the Government Side
    • Poorly drafted orders have resulted in contested tax revenues of Rs 7.58lakh crore. 
  • Judges’ vacancies: High courts currently have a sanctioned strength of 1,080 judges and are working with only 661 judges, leaving 419 posts vacant. This approximates to a 39 per cent vacancy and is a worrisome figure given the level of pendency in the courts in India. 
  • Poor funding: The budget allocated to the judiciary is between 0.08 and 0.09 per cent of the GDP.
  • Low technology awareness in lower courts: About 87.54 per cent of the total pendency of cases is in the district courts where judicial activism does not exist. 
    • Lower judiciary has not adapted to technological solutions
  • Archaic Laws or Vague drafting of Laws: The delay is also because of stay orders granted by the courts primarily due to poorly drafted and poorly reasoned orders. 

Way forward

  • Filling vacancies
    • The Economic Survey states that in the district courts only 2,279 vacancies need to be filled up to achieve 100 per cent clearance rate and 2,580 posts can be left vacant. 
    • A smooth and time-bound process of making appointments would, therefore, require close coordination between the High Courts and the State Public Service Commissions.
  • Data localisation: Since the Phase III vision document is a draft, there is still an opportunity to abandon the ecosystem approach. 
    • To continue to do that within the framework of our fundamental rights, the e-Courts must move towards localisation of data, instead of centralisation. 
    • The e-Committee must prevent the “seamless exchange” of data between the branches of the state that ought to remain separate. 
    • Anonymous data: Data can be useful when it provides anonymous, aggregated, and statistical information about issues without identifying the individuals. 
    • This could be made possible in Phase III by encouraging uniformity and standardisation of entry fields.
  • Improving case management 
    • Judgment writing is an art and it must be developed by the adjudicating authorities.
    • Monitor the progress of cases based on urgency and the type of case.

The progressive approach of the Supreme Court, the rapid adjustment to online courts, the work being done across several spectrums by the government of India, and a fast evolving landscape in law and technology make this the most critical opportunity for transformative change. We have known the problem all along. Now we can actually work on solutions for tangible and sustainable outcomes.

Source: https://www.thehindu.com/opinion/lead/the-promise-and-perils-of-digital-justice-delivery/article34773168.ece