Events & Issues

New Delhi, 1 July 2021

Judiciary’s Modernisation

AMBITIOUS PLAN FOR NJIC

By DrS.Saraswathi

(Former Director, ICSSR, New Delhi)

“I am of the firm belief that unless infrastructure is strengthened, it is unfair to expect courts, particularly lower courts, to  do miracles and increase the  pace  of justice delivery. Both quality  and quantity of justice delivery  can be improved only when support systems are showing  enough to meet the challenges”, said the Chief Justice of Indiaspeaking on his plan of  constituting a National Judicial Infrastructure Corporation (NJIC). Justice NVRamana assumed the office of the CJI with the plan of modernising the judicial infrastructure at all levels  andcreated the NJICfor the purpose. He has raised the expectations of all for an end to at least some major ills like long delay from which the judicial systemfrom top to bottom is suffering.

The NJICis conceived “to build a comprehensive, self-contained, all-inclusive, and modern court complexes across the country to augment judicial infrastructure”. The Corporation envisaged by the CJI to “help bringuniformityand standardisation in judicial infrastructure”,  will be managed by a committee comprising judges of the Supreme Court who have chances of  becoming CJI in future, CJs of High Courts having long tenures, and Finance Secretaries to Union and State Governments,  and will be headed by the CJI.

In the context of the judiciary,infrastructure does not refer only to spacious building complexes withmodern furniture and amenities andfilling up vacancies. CJI explains that modernisation of judicial infrastructure is for “providing equal and free access to justice” which would be possible  through a “barrier-free and citizen-friendly environment”.

It will coverthe entire processes, tools,information system including storing of  documents and their retrieval, and telecommunication networks, internet, etc. Day-to-day functioning of the legal system depends on these tools,  and its efficiency depends much on the ready availability  of modern gadgets and their upgradation fromtime to time. Management of casedocuments, records fromother relevant cases, precedents and previous arguments and verdicts are the indispensable tools in judicial decision-making.

Infrastructure for  any  institution expands with advancement oftechnology. Many non-legal, non-judicial expertisewill berequiredto handle work at every stageof justicedelivery mechanism.

Presently, the image of the courts particularly subordinate courts isone of oldbuildings   crowded with men and material – litigants and advocates loudly discussing cases and huge piles of vertically folded paper records of several years. The image has to change and with it also several legal practices like adjournment, which contributeto delay in justice.

Pendency in subordinate courts are much more than inhigh courts.In April 2021, cases  pending in various courts were over 67,000 in the SC,57.53 lakh in high courts, and 3.81 crore in district and subordinate courts which was 19% increase since March 2020. The number is expected to grow further – a situation  to which poor infrastructure is a major contributing factor.Judicial   system atthe three levels has taken a long time to adopt computerisation. E-project for e-payment,e-summons,e-hearings,ande-judgement,which has been taken up by the SC, must be  extended to all high courts andsubordinatecourts.

NitiAayog, in a  Strategy Paper prepared in 2018, has noted that it will take more than 324 years to clear backlog in courts, which was 2.9 crore at that time. The situation is more grim today.

Another problem is vacancies in the post of judges to the tune of over 5,000 in subordinate courts, and about 400 in high courts. To keep posts vacant  when  cases  are pending and piling up enormously,isbound to be discredited asa sign of negligence and indifference.Law making and execution will not serve the purpose unless the machinery that can establish the constitutionality of legislations, and prevent violations of the rule of law is well-oiled to run fast. Courts need not intrude into the sphere of the legislature or executive, but has to adhere to the principle of separation of powers.

Added to the normal problems bothering the judiciary, the impact of Covid-19 and restrictions  under lockdown have almost paralysedthefunctioning of the judiciary to bring the whole system to a standstill. Ithas provoked courts to seek ways of circumventing pandemic restrictions on  face-to-face contacts which effectively block court procedures. A remedy is sought in modernisation of court procedures by adoption of digital technology. As India  is not generally  averse to  the idea of technologicalinnovationsper se, but only bothered aboutpractical difficulties in the way, there is hope that the Indian legal machinery can get ready to adopt  modernisation  with  ease which will facilitate strengthening the judicial infrastructure.

Legal system has already entered into the digital era in India. It may be recalledthat in 2003, while  hearing  acase  of  State  of Maharashtra, the SC held that recording of evidence by a court through video-conferencing shall be considered to be “as per the procedure established by  law”. It marked the beginning of the use of the system of video-conferencing in court procedure.     Online procedure is an accepted form of disputeresolution.

India is not alone in facing pandemic caused judicial paralysis. It is felt all over the world compelling many countries to discover ways of conducting judicial work without physical presence of men and women in courts.

Jury trial had to be suspended in many countries where it was in vogue in the wake of the spread  of the pandemic. Only essentiallitigations were taken up in many European countries. Indiatoo  had to restrict judicial operations to urgent matters and reduced number of judges on duty.

In the US, legal apprenticeship conducted with the use of remote technology led to a rapid    change in conducting litigations by using the same technology. Technology enabled proceedings   conducted by persons stationed at different places replaced personal attendance in courts and  court rooms.Canadian Federal Courtstarted remote trial by video-conferencing in 2020 after  a   trial management conference. A write-up on this expresses a hope that Canada will continue it after the pandemic also, which seems to convey that hesitancy over trial without physical presence of witnesses is common.Singapore, which was using videolinks even before the pandemic, extendeditsusagetofacilitate continuance of Covid-appropriatebehaviour.China started with a  positiveattitude to remote hearings in courts.

To help accelerate global transformation in judicial service, an international association of  judges, lawyers, court officials, litigants, and court technologists has come up to share their experiences in application of technology to develop “remote alternatives”  to traditional forms of court hearings.

Pandemic continuing for a long time in many waves , the practice of remote hearings and remote delivery of judgements are likely to settle as permanent features of the judicial system in many  countries that are able to teach and train concerned people in the use of remote technology. India has to go along with them andcreate necessaryinfrastructure.In  doingthis, the danger of digital  divide making justice a “remote” possibility to the digitally deprived population has to be  avoided. ---INFA

(Copyright, India News & Feature Alliance)