Richard Eric Susskind wrote in his book The Future of Law that lawyers and their litigants would communicate via email for years to come. In Online Courts and the Future of Justice he claimed that technology will bring about drastic changes in the field of law and transform the court system.
The Indian judiciary has increasingly started to use technology and the change is also reflected in the legal profession in general. Before the Covid-19 crisis in 2020, some significant developments had taken place with the digitization of court files and the establishment of e-courts. Therefore, it is imperative that the use of digital technology is discussed in order to better realize its potential, especially in relation to the digitization of court files, electronic filing of cases and their virtual hearing, live streaming of court proceedings.
In India, e-governance in the field of judicial administration started in the late 1990s, but accelerated after the passage of the Information and Technology Act in 2000. At the beginning of the 21st century, the focus was on the digitization and establishment of court records e-courts in the whole country. In 2006, e-courts were introduced as part of the National e-Governance Plan (NEGP).
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In this regard, the Allahabad Supreme Court is a leading example. When he was Chief Justice of Allahabad HC, Justice DY Chandrachud conceived and initiated the project to digitize approximately one million case files in one year. This was necessary because not only was a lot of space required to store so many files, but it was also becoming increasingly difficult to manually preserve the decades-old documents. Another purpose was to ensure that these files could be traced electronically if required. The consequences of missing court records are serious. In the case of Uttar Pradesh State v. Abhay Raj Singh, the Supreme Court ruled that where court records are lost and reconstruction is not possible, the courts have an obligation to set aside the conviction. In this way, convicts can be released in the absence of court records. This is not an uncommon occurrence and in many old cases criminal records are found to be lost, resulting in the acquittal of the accused.
The time taken to subpoena files from the lower courts to the appellate courts is one of the major factors causing delays in cases. Digitization will mean that it will take much less time for the lower courts to transmit the records as needed. It has also been observed that cases are adjourned simply because affidavits filed several years ago were not recovered with the record or were not traceable. As soon as the documents are digitized and filed by e-mail
Lawyers, at least that’s why the cases wouldn’t be adjourned by the courts.
Once an attorney or litigant files a case digitally, he or she can see the status of the filing, the status of motions and affidavits, the date of the next hearing, decisions made by the courts, etc. with just a click of an app . Lawyers benefit because they or their staff no longer have to go to the reporting offices or other departments of the court to find out about the status of their cases. This has been implemented by the E-Committee of the Supreme Court issuing instructions to ensure that electronic filing of cases/petitions by state governments on all matters becomes mandatory from 1 January 2022.
Before the pandemic, virtual hearings had limited use; for example, in criminal cases where it was not possible to bring the accused to trial physically, or during the prolongation of the accused’s pre-trial detention. However, not every case can be disposed of virtually. Cases related to marital problems and domestic violence, bounced checks, car accident compensation referred to arbitration centers and Lok Adalats could be added to the list of cases available through the virtual hearing.
Hearing matrimonial matters by videoconference was authorized by the Supreme Court in Krishna Veni Nagam v. Harish Nagam (2017), but the order was short-lived and in the case of Santhini a Supreme Court Coordinating Chamber v Vijaya Venkatesh (2018) referred the Matter to a larger bank for re-examination. Recently, in the case of Anjali Brahmawar Chauhan v. Navin Chauhan, the Supreme Court allowed the Gautam Buddha Nagar Family Court to conduct the trial in a marriage case via video conference.
In 2018, based on the Swapnil Tripathi ruling, the Supreme Court allowed cases of constitutional and national importance to be live-streamed. Live streaming of court proceedings is a step towards ensuring transparency and openness.
Although several reservations have been expressed, in July 2021 the Gujarat HC became the first court in the country to live stream its proceedings. The legal and technical obstacles in the live streaming process were skilfully removed under the guidance of Judge Vikram Nath, then Chief Justice of Gujarat HC. His example was followed by other HCs such as Karnataka, Odisha, Madhya Pradesh and Patna.
Internet connection issues and the need for a well-equipped room for lawyers to conduct their cases are some of the main issues that require attention. Political will and the support of judges and lawyers are also necessary. Judges, court officials and lawyers are unfamiliar with digital technology and its benefits. The need of the hour is that they become aware of this and receive proper training. Virtual hearings cannot replace physical court hearings in all cases. However, in appropriate cases and certain categories of cases determined by the court administration in consultation with the members of the Bar Association, the virtual hearing should be mandatory.
The author is another Government Advocate at the High Court of Allahabad