Rethinking Judicial Mechanism: An Upgrade to Digitalization

                                                                    Shama Jha & Harsshita Pothiraj

Abstract

India is the world’s largest democracy which calls for a resolute mechanism to address the several social conflicts that are bound to arise in any community. India’s judiciary, though committed, falls short in many aspects, few of which are: the severe backlog of cases, hindrances to accessibility, failure to address the hardships of the under trials and the lack of transparency. The Supreme Court alone has around 60,398 pending cases, high courts have 40,11,965 cases and the lower courts have 2.85 crores pending cases. The Supreme Court’s pendency is more than doubled in ten years. Moreover, at all three levels, courts are unable to keep up with new cases and they dispose of fewer cases than are filled. Digitalization is one of the several pathways which can aid the recovery of our ailing judiciary. This paper studies the largest move, The E-Courts Mission Mode Project (MMP) which was implemented on the recommendations of the Supreme Court e-Committee to digitalize what may be the biggest institution of the country, the judiciary; with key emphasis on three different components of it- (1) Automation of Case Management Processes, (2) Video Conferencing and, (3) Digital Signatures; each of which fall within the ambit of the three phases of the project.

The paper moves forth to critically analyse, both, the components were chosen as well as the e-courts MMP as a whole. It highlights its hits and misses, keeping the ground reality under the spotlight. Further, it recognizes the fertile ground laid bare for continued development. The research attempts to offer its own plausible recommendations for fixing the cracks in the existing system while seeking to advance a few measures which might contribute to the same.
Introduction

The Indian Judiciary faces a backlog of approximately 3.3 crore cases with 2.84 crore cases pending in subordinate courts, 43 lac in High Courts and 57,987 cases in the Supreme Court. 60% of pending cases are more than two years old while 30% of the cases in the Supreme Court are more than five years old.[1]Moreover, a great deal of time, resources and effort of the judicial, security and logistic officials as well as the parties themselves, are spent on judicial proceedings. All of this can be cut down considerably by way of digitalizing judiciary.

The E-Courts Mission Mode Project (MMP) is an ambitious project aimed at digitalizing the Indian judiciary. It lays down an extensive plan, divided over three phases. The system is currently undergoing the second phase. While considerable changes with regard to the matter at hand, is visible, the plan’s implementation falls short in several spheres.

E-Courts Mission Mode Project (MMP)

The origin of the e-Courts policy took place in the Chief Justice’s Conference-2005. It endorsed a proposal made by the then Chief Justice of India, R.C. Lahoti, to establish an Information Technology and Judicial Reform Cell in the Supreme Court of India. Later, on 18 September 2004, it was decided in the joint conference of Chief Ministers of States and Chief Justices of High Courts that the central government would lead the initiative of full computerization of all district courts in India.[2]

The scope of the project, also called the e-Courts project, included computerization of 14,249 district and subordinate courts in 3,069 court complexes, and ICT upgradation of Supreme Court and High Courts for Rs.935 crore, to be completed by 2014.[3] It was prepared by the e-Committee of the Supreme Court of India. It is one of the National e-Governance projects being implemented in District/Subordinate Courts across the country and also one of the 31 Mission Mode Projects (MMPs) formulated under the national e-governance plan.[4]

A three-phase plan was recommended for the implementation of the project.[5]The first phase was designed to create digital infrastructure in the judiciary and implement customized software; the second sought to enable the adaptation of judicial processes to the information age; and the final phase focused on the creation of an information gateway between the judiciary, public and government departments.[6]

Evaluation of Project Implementation

  1. Phase 1: Initiation of the ICT Implementation in the Judicial System
  2. Project Timeline

The first phase of E-Courts MMP was finally approved by the Cabinet Committee of Economic Affairs on 8th Feb 2007. Initially, it was estimated that the plan would be completed in the time period of two years[7]. In 2010, computerization and ICT enablement of 12,000 courts in 2,100 court complexes was to be completed by 31 March, 2012. Remaining 2,249 courts in 969 court complexes were to be fully computerized by 31st March, 2014. But later on, it was again revised and scheduled to be completed by 31 March, 2015.[8]

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The E-committee report was revised many times and the actual estimation for the time required ended up being 7 years instead of 2, even though it still failed to achieve full coverage.[9]

Planned Activities

The important planned activities, according to the 2005 action plan, for phase I were creation of computer room at all the court complexes with internet provisioning, providing laptops to judicial officers and judges, creation of centralized facility for system administration, upgradation of ICT Infrastructure in Supreme Court and High Courts, extension of computer facility, judges chamber, court hall filing, scrutiny section, certified copy section and computer room within the court complex and provisioning of video conferencing facility between undertrial prisoners and the magistrate with video monitoring.[10]

Work completion

As on 30th November, 2015, more than 93% of the mandated activities of Phase I of the Project have been completed.[11]

S.NO.ModuleStatus as on 30.11.2015% completion
1Sites readiness14,249100.00
2Hardware installation13,43694.29
3LAN installation13,64395.75
4Software deployment13,27393.15

In addition, the ICT infrastructure of the Supreme Court and the High Court has also been upgraded. A unified national core application software – Case Information System (CIS) software – has been developed and made available for deployment at all computerized courts. The national e-Courts portal has become operational and has been opened for public access through websites of individual districts as well as through the National Judicial Data Grid (NJDG),[12] a monitoring tool to identify, manage & reduce pendency of cases, thus, providing timely inputs for making policy decisions so as to reduce delay and arrears in the system, facilitate better monitoring of court performance and systemic bottlenecks, therefore, enabling better resource management.[13]

Cost Estimation and Revision

On 8th February 2007, the first estimation of the phase took place, with a budget of Rs. 316 crores[14]. Later, the budget was revised and increased by two times, to Rs. 995 crore, of its original estimation.[15]The major issues that emerged were that of gross miscalculation of estimates of the cost of the project, project requirements and the timelines drawn for the implementation of the project.[16]These cost overruns are usually due to the delays in the completion of its task.

2. Phase 2: Coordination of ICT infrastructure for the Judicial System

Project Timeline

The 2014 Action Plan for Phase II outlined the project period for the phase to be three years with provisioning of additional support for sustenance after this period. However, in August 2015, the budget approval document for Phase II of the project set the timeline for the completion of the second phase of the project at “four years, or until the project is completed, whichever is later.[17] This is already much greater than the time period envisaged initially (2 years).[18]

Planned Activities

The activities planned for the second phase the 2005 Strategic Plan and the National Policy were video-conferencing between under trial prisoners and magistrates with video monitoring, inter-connectivity of law libraries, wireless LAN connectivity. Also the development and implementation of software for judicial and administrative processes in progressively identified sections.[19]

As Phase I neared completion, planned activities under Phase II of the e-Courts project had also evolved significantly like judicial performance assessment through ICT, solar energy for power backup, mobile-based service delivery through SMS and Mobile Apps etc., come into the picture.[20]

Budget Allocation

The estimation of the budget for phase II was finally concluded in 2014. The budget estimated was Rs. 1,670 crore, which was double the original budget of the three phases (Rs. 854 crores). It was also seven times the budget estimated by the E-Committee of the Supreme Court in 2005 (Rs. 225 crores).[21]It is relevant to note that as per the original 2005 E-Committee plan, Phase II was to cost less than half of Phase I, presumably because most of the essential work was expected to have been concluded by Phase I itself.[22]

3. PHASE 3: ICT Coverage of Judicial process from filing to execution and all administrative activities

Cost Estimation and Project Timeline

According to Supreme Court E-Committee, time allocated for the III phase is two years. Also, budget allocated for the same is 445 crores but with regard to the increase in budget of the other phases, it’s bound to increase in this phase too.

Planned Activities.

Proposed activities for phase III are Use of advanced ICT tools, intensive training, warehousing and mining tool customization to crystallize change management, biometric facilities, gateway interface with other agencies, upgradation of centralized facility and digital archive of record room and digital library management system.[23]

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Video Conferencing and Judiciary

The provision of video conferencing between the under trials and the magistrates was included in Phase II of the E-Courts MMP, covering a proposed span of four years, beginning from 2015[24]and the idea of video conferencing as an enabler of justice has been around since 2003 when the court allowed video conferencing for the purpose of recording the statements of a witness who lived abroad.[25]However, it is only in the past few years that this technology has come to be seen as a necessity rather than a dreamy leap into a futuristic world.

Section 273 of the Cr.P.C.  states that evidence must be recorded in the presence of the accused. The Supreme Court, in 2003, interpreted the term ‘presence of the accused’ as that of the presence of the pleader of the accused if the attendance of the latter is dispensed with. ‘Presence’, here, therefore, doesn’t mean actual physical presence of the accused.[26]

Various courts across the country have also issued several guidelines that have to be duly followed while carrying out a trial by way of video conferencing; so as to ensure that the technology doesn’t get misused. An over-riding factor is that the use of video-conferencing in any particular case must be consistent with fulfilling the interests of justice and should cause minimal disadvantage to the parties. Some other guidelines include:[27]

  1. Both points of the conference (court point and remote point) will have coordinators who will oversee the functioning of the trial.
  2. The identity of the person would be confirmed by the court with the aid of the concerned coordinator by way of biometrics, digital signatures, etc.
  3. Where a lawyer requests that in the course of video-conferencing some privileged communication may have to take place, Court will pass appropriate directions in that regard.
  4. The Court shall at all times have the ability to control the camera view at the remote point so that there is an unobstructed view of all the persons present as well as the surroundings.
  5. Benefits

Employing video conferencing in judiciary brings a lot of benefits to the table. The High Court of Karnataka saved an amount of Rs. 93,83,541 within a span of just two years (2003-05), by adopting video conferencing.[28] It also decreases the disruption of duties of security, logistics and judicial officials since they wouldn’t have to schedule court transits. Further, there is a lot of risk associated in bringing the under trials to the court and then taking them back on remand orders which is also addressed by way of video conferencing.

Challenges

The benefits of video conferencing are several but it backpacks its own challenges. One of the major challenges is that communication, which was already restricted during regular trials, would be further restricted due to the poor socio-economic background of the under trials and the unfamiliarity with the technology.[29]The court may also not be able to provide a free and fair trial for it may not be able to ensure that the undertrial isn’t subject to any duress or intimidation by the officials around him.[30]According to the data of the Law Ministry, about 929 district courts under the 24 high courts have been equipped with video conference facilities, however, the number of corresponding jails that have such facilities is only 342 with many high courts having extremely less number of equipped jails. The Allahabad and Patna High Courts have zero equipped jails under it.[31]Additionally, discontinuous supply of electricity and lack of high-speed internet would hamper the quality of the session which may in turn, affect the justice imparted. There is also unavailability of dedicated in-house technical support.[32]

These can be tackled to some extent by giving the under trials sufficient opportunity to understand the equipment so that he/she is comfortable on the day the conference is scheduled. They must also be provided the provision to get their complaints regarding issues like custodial violence addressed.

Digital Signatures

Digital Signatures also make a part of the Phase II of E-Courts MMP.[33] For any electronic communication to be legally binding, it must meet the following fundamental requirements:[34]

  1. Authenticity of the sender.
  2. Message’s integrity.
  3. Non-repudiation; the ability to ensure that the sender cannot falsely deny sending the message nor falsely deny the content.

This technology serves quite the same purpose that a physical, handwritten signature does, but digitally. The digital signature is complete only if the recipient successfully verifies it. The acceptance or rejection of digital signatures depends on: [35]

  1. Whether the Certifying Authority is licensed or not.
  2. Whether it has been created in accordance with the prescribed technological standards.
  3. Whether the verification process has been successful or not.

Digital signature finds it legality in section 3(1) of the Information Technology Act, 2000 which states:

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“Subject to the provisions of this section, any subscriber may authenticate an electronic record by affixing his digital signature.”

Digital signatures become important when it comes to digitalization of the judiciary as it would help maintain the authenticity of the concerned documentations. With regard to video conferencing (discussed earlier), digital signatures serve an important purpose of maintaining the integrity of the documents exchanged, thus, ensuring a free and fair trial. Depositions of the witnesses must be signed before a magistrate or notary, as soon as possible, so as to form a part of the record of the proceedings.[36]This can be carried out in a shorter period of time by way of digital signatures. The technology will also serve well in cases of stay, injunction, etc., wherein the court can pass its instructions and guidelines to the concerned, in a short time.

Suggestions & Conclusion

The digitalization of justice requires an evaluation from all aspects, starting from policy formulation to implementation of the E-courts. To utilize the benefits of E-courts it requires better data capture, fixed timelines, and accurate budgeting, post-operational maintenance, data privacy and seamless implementation of technology. It has the power to transform judiciary in its entirety by the automation of activities such as case filing, scrutiny, registration, case allocation, court diaries, calculation of court fees, issue of certified copies of orders and judgments and their publication online. Further, other technologies like Live Streaming and Voice Automation can be introduced into E-courts MMP  which would help in reducing the worrying pile-up of cases and ensure speedier delivery of justice.

Despite the concerns, the digitalization of justice is essential for the overburdened judiciary in India. Modernization of service delivery is necessary for the smooth running of judicial processes. On completion, the E-Courts MMP has the potential to fundamentally transform justice delivery and enhance the quality of access to justice with improved affordability. Therefore, it is critical for policymakers to overhaul the E-Courts MMP plan and its implementation.


[1] Harish V. Nair, 3.3 crore Backlog Cases in Courts, pendency figure at highest: CJI Dipak Misra, INDIA TODAY (March 29, 2019, 7:56 PM), https://www.indiatoday.in/india/story/3-3-crore-backlog-cases-in-courts-pendency-figure-at-highest-cji-dipak-misra-1271752-2018-06-28

[2] Shalini Seetharam & Sumathi Chandrashekaran, E-Courts in India: From Policy to Implementation, VIDHI, (July 2016), https://vidhilegalpolicy.in/wp-content/uploads/2019/05/eCourtsinIndia_Vidhi.pdf

[3]Government of India, E-Courts Project Status Report-2017 Kalahandi Judgeship (November 19, 2019), https://districts.ecourts.gov.in/sites/default/files/eCourts%20%20Project%20Status%20Report.pdf

[4] Supra note at 2.

[5] Supreme Court of India, National Plan and Action Plan for Implementation of Information and Communication Technology  in the Indian Judiciary (1st August 2005), https://www.sci.gov.in/pdf/ecommittee/action-plan-ecourt.pdf.

[6] Supra note at 2.

[7] Supra note at 5.

[8] Department of Justice, E-Courts Mission Mode Project, (March 27, 2019, 1:00AM), http://doj.gov.in/sites/default/files/Brief%20on%20eCourts%20Project.pdf

[9] As of 30 November 2015, a little over 93% of the mandated activities of Phase I of the E-Courts Project had been completed. See, E-Courts Mission Mode Project, PIB (March, 27, 2019, 1:30 AM), http://pib.nic.in/newsite/printrelease.aspx?relid=132954.

[10] Supreme Court of India, Policy and Action Plan Document Phase II of the E-Courts Project, (8th Jan. 2014), https://www.sci.gov.in/pdf/ecommittee/Government%20Sanction%20Order%20-%20Phase%20II%20of%20eCourts%20Mission%20Mode%20Project.pdf

[11] Supra note at 8.

[12] PIB, E-Courts Mission Mode Project, (March 27, 2019, 1:00AM), http://pib.nic.in/newsite/printrelease.aspx?relid=132954

[13] PIB, National Judicial Data Grid, (March, 27, 2019, 1:17PM), http://pib.nic.in/newsite/PrintRelease.aspx?relid=94951

[14] Supra note at 5.

[15] PIB, Revised cost estimates for implementation of Information & Communication Technology in the Indian judiciary as a Mission Mode Project “E-court” under the National e-Governance Plan, (March 27, 2019, 2:20AM), http://pib.nic.in/newsite/PrintRelease.aspx?relid=65794

[16] Supra note at 2.

[17] Supra note at 2.

[18] Supra note at 5.

[19] Supra note at 10.

[20] Supra note at 2.

[21] Supra note at 10.

[22] Supra note at 2.

[23]Supra note at 10.

[24] Supra note at 8.

[25] The State of Maharashtra & P.C. Singh v. Praful B. Desai & Ors., (2003) AIR 2003 SC 2053.

[26] The State of Maharashtra v. Dr. Praful B. Desai & Ors., (2003) AIR 2003 SC 2053.

[27] Video Conferencing Guidelines Issued by the High Court of Delhi; Sujay Mitra v. State of West Bengal, (2015) CRR No. 1285 of 2015; Twentieth Century Fox Film v. NRI Film Production Associates, (2003) AIR 2003 Kant 148

[28] Dr. Setlur B.N. Prakash, E Judiciary: A Step towards Modernization in Indian Legal System, 1 JESP 111, 119

(2014)

[29] COMMONWEALTH HUMAN RIGHTS INITIATIVE, Production of Inmates to Court Through Video Conferencing,, (March 29, 2019, 2:29 PM), http://www.humanrightsinitiative.org/download/Chri’s%20Draft%20Note%20on%20VC%20Safeguards.pdf.

[30] Video Conferencing Guidelines Issued by the High Court of New Delhi, 2017

[31] Press Trust of India, Video-conference facility in over 900 courts, jails yet to match up: Data, BUSINESS STANDARD (March 29, 2019, 04:05 PM)

[32] Supra note at 2.

[33] Supra note at 8.

[34] VAKUL SHARMA, INFORMATION TECHNOLOGY LAW AND PRACTICE 33 (3rd ed. Universal Law Publishing Co., 2011)

[35] VAKUL SHARMA, INFORMATION TECHNOLOGY LAW AND PRACTICE 34 (3rd ed. Universal Law Publishing Co., 2011)

[36] Harsh Jain, Can Evidence be Recorded in Legal Cases Through Video Conferencing, iPLEADERS INTELLIGENT LEGAL SERVICES (March 29, 2019, 6:27 PM), https://blog.ipleaders.in/can-evidence-recorded-legal-cases-video-conferencing/