TRADITIONAL COURTS VS. E-COURTS: METAMORPHOSIS OF ACCESS TO JUSTICE IN THE DIGITAL AGE

 

AUTHORED BY - SUMEDHA KALSY[1]

 

 

ABSTRACT:

The Constitution of India, 1950 which is the will of the people of India resolves to secure to all it’s citizens Justice: Social, Economic and Political. The intention of the makers of the Legislature was to make justice within the reach of every member of the society, upto the last citizen, even to the citizen residing in the remotest of the remote area. In other words, the grievances must be heard & redressed timely of each and every citizen without the discrimination of caste, colour, creed, sex or religion. But due to the burgeoning problems of low citizen to judge ratio, increasing arrears & delay in the disposal of cases has cloged the path of access to justice. With the advent of globalisation and explosion of internet, various initiatives were taken by the Indian Judiciary to metamorphasise the access to justice and one such effort is E-Courts project, which is conceptualized by Department of Justice of Government of India on the premise of UNCITRAL model law on e-commerce. Traditional Courts, while utilising the technology in a fruitful way, has very bright prospects of making access to justice effective, efficient, accessible, transparent and speedier. In order to make that shift in the legal paradigm from being print based to IT based & from being restrictive to empowering collaborative efforts among all the stakeholders ie policymakers, judicial officers, advocates, litigants, court officials are required in order to leverage the best benefits of the E-Courts while upholding the foundational principle of rule of law which underpins equality, fairness & justness in the digital age.

 

Keywords: access to justice, rule of law, technology, e-courts, digital age

 

1. INTRODUCTION:

The preface to the Constitution of India, 1950 is the Preamble which puts across the intention and vision of it’s framers ie the Constituent Assembly & the core values and principles of the nation. It highlights that the source of authority lies with the people of India who resolved to secure to all it’s citizens the objectives mentioned therein. One of the foundational principle which help in achieving the objectives is indicated in the phrase “Justice: Social, Economic and Political” which has been guaranteed in Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV). The term ‘Justice’ has been given by Russian Revolution of 1917.[2] The concept of justice is as old as civilization. It is profoundly implanted in the roots of our Indian Civilization.[3] The word ‘Justice’ finds its roots in the Latin term ‘JUSTITIA’ which signifies righteousness or equity.[4] It is also derived from the French word ‘JOSTISE’ which means uprightness, equity, vindication of right, administration of law.[5] The idea of justice is most frequently linked to the underlying presumption that justice is synonymous with the idea of equal rights and opportunities[6] and to get just & fair treatment at the hands of the law without discrimination of caste, colour, creed, sex, place of birth, etc. Justice, in its literal as well as abstract form, remains the very purpose of law and the very motive of the legal system. Hence, it becomes the responsibility of the legal system to provide its seekers justice, in letter and in spirit and that the delivery of justice should be just, fair and reasonable.[7] Only when the judicial system is able to deliver accessible, speedy and cost effective justice to each and every citizen of the country without discrimination of caste, color, creed, sex or religion only then the grievances will be redressed without citizens being tempted to resort to violent self-help and taking law into their own hands.[8] ‘Dharma’ is the concept which has ruled the Indian civilization from ancient India to the Muslim regime and the concept was suddenly blown away by the British Raj.[9] Sacred Law (i.e. Dharma), evidence (i.e. Vyavhara), history (i.e. Charitra) and edicts of Kings (i.e. Rajasasana) are the various basis for dispensation of justice. The code of ‘Manu’ is the main basis of administration of justice. Dharamshastras, Vedas and Smritis seem to have had warned that delay in dispensation of justice was in itself an act of injustice.[10] The efforts for making administration of justice speedier continued. India after attaining Independence consciously opted to retain the British system of law which includes ‘Supremacy of Law’, ‘notions of equality and liberty’ as well as the system of checks and balances to ensure separation of functions of three organs of government i.e. Legislature, Executive and Judiciary. The Judiciary (also known as the judicial system or court system) is the system of courts that interprets and applies the law in the name of the State where it does not frame the statutory law (which is the responsibility of the Legislature) or enforce law (which is the responsibility of the executive). After adopting the Constitution steps were taken to have a unified or integrated judiciary having Supreme Court[11] as the apex court of the land with administrative independence, High Court[12] at the State level having both administrative and judicial power in respect of the affairs of the Court at the District level subject to the control and supervision of respective High Courts.

 

         At the same time, there occured an outburst of population which resulted in the pendency of cases in multidimensional ways and ultimately over burdening the

judiciary.[13] Number of new cases filed each year may go up to 15 crores over next

three decades, which will require at least 75,000 judges.[14] As a result, the number of

under trials in the prisons has increased & they are running at an over capacity of

129%.[15] Moreover, the vacancy of High Court judges has increased from 16% to

49%[16] and in the Subordinate Courts from 19% to 25% as per the Department of Justice, in the year 2024, the judge to population ratio in India was 20.91 to 10 lakh.[17]

Thus, for this reason there was an urgency to re-engineer the processes of the judiciary, by optimizing the use of its human resources and bringing about change management by harnessing the potentiality of the available Information and Communication Technologies (ICTs) to its fullest extent. The objective of this exercise is to enhance the judicial productivity both qualitatively and quantitatively as also to make the Justice delivery system more affordable, accessible, cost effective, transparent and accountable.

 

1. ACCESS TO JUSTICE:

Access to justice is a fundamental principle that is foremost to the legal systems around the world. This principle is vital for the rule of law asserting just treatment at the hands of the law and that legal redress should be equally available upto the last citizen of the society. Professor Moorhead highlights this idea when he states that access to justice means being, ‘…treated fairly according to the law and if you are not treated fairly being able to get appropriate redress.'[18] This principle is evidently a vital tool in the promotion of equal treatment for all. This is particularly true when it is considered that impartial legal treatment facilitates the application of other key rights upon citizens – as without an access to justice further rights cannot be fully accessed.[19] There is no better test of excellence of a government than the efficiency of its judicial system, for nothing more merely touches the welfare and security of the average citizen than his sense that he can rely on prompt administration of justice.[20] It is difficult to define the concept of access to justice in a condensed form. Nevertheless, a consensus exists as to the central role of the court system in guaranteeing individuals’ access to justice. It can be said that access to the courts is a necessary part of an effective democracy, while access to justice begins with a just society.[21] The courts protect our rights and freedoms against arbitrary interference, as well as ensure that we do not unlawfully interfere with the rights and freedoms of others. Implicit in this responsibility is the duty of the courts to ensure equality of access.[22] It is also recognised under Article 8[23] and 10[24] of the Universal Declaration of Human Rights as well as Article 2(3)[25] of the International Convention on Civil and Political Rights. Moreover, Article 14[26] and 21[27] of the Constitution of India serve as a keystone of the access to justice. The concurrent list under seventh schedule of List III holds the item titled ‘the administration of justice’[28] which makes it the duty of both the Central & State Governments to fulfill this in a dutiful manner.

 

1. ELECTRONIC COURTS [E-Courts]:

The concept of electronic courts is based on the rules which has been framed for electronic commerce ie e-commerce, where member States does transactions or exchange information with one another connected to the commercial law. It is basically delivering governmental services between government to citizens (G2C) or government to business (G2B) or government to government (G2G) or government to employees (G2E) or back office processes. It is all deployed on the Model Law ie  UNCITRAL model law which was adopted by the United Nations Commission on 12 June, 1996 with a mandate to further the progressive harmonization and unification of the law of international trade and in that respect to bear in mind the interests of all people, particularly in developing countries, for the substantial development of the international trade.[29] It sought to provide rules that are acceptable among the international community to exterminate hindrances, both mercantile and legal & enhance smoothness for e-commerce. It has paved the way for both paperless and paper bound transactions, thereby removing any discrimination of more validity and acceptance of paper bound transactions over paperless transactions which arose due to non-acceptance of electronic documents.[30] It’s functions are:[31]

1. establishing Conventions, model laws and rules that are both acceptable worldwide
2. providing legal and legislative guides and practical recommendations
3. disseminating updated information on case law and enactments of uniform commercial law
4. providing technical assistance in law reform projects
5. conducting regional and national seminars on uniform commercial law[32]

 

The principles of model law on e-commerce are as follows:[33]

 

1. The Principle of Non-Discrimination: It ensures that any document would not be denied its legal validity, effect, and enforceability solely on the basis that it is in electronic form.[34]
2. The Principle of Technological Neutrality: It mandates the adoption of such provisions that are neutral with respect to the technology used. This will further enhance the pace up of international monetary transactions with the advancement in technology.[35]
3. The Functional Equivalence Principle: As the name suggests, it is equal treatment to all on the service front. It means both the transactions, traditional as well as technological that means paper bound and electronic cannot be challenged on their validity or effectiveness.[36]

Though the UNCITRAL Model Law and its conventions [ UNCITRAL Model Law on Electronic Commerce (MLEC), 1996 and UNCITRAL Model Law on Electronic Signatures, 2001 ] is associated with enforcement of general contracts and commercial laws and doesn’t specifically talk about electronic courts and it’s facilities such as e-filing, virtual courts, etc but still they apply to judicial system impliedly, as the scope of the Model Law extends to any transaction and that transaction could be between persons or between business entities or between person and entity or even in courts.

1. 1. Flourishing International Experiences:
2. United Kingdom:

In U.K. a database known as the Local Country Court Management System (LOCCS) is used as part of package called CASEMAN[37] which supports the following judicial applications:

• Creating initial court records for registering cases
• Issuing summons & monitoring its service
• Storing of electronic copies of evidence
• Generating cause lists & maintaining court diary
• Updating records[38]

There has been digitisation of Legal advice through technologies such as enabled chat bots such as DoNotPay which help the clients to navigate legal queries and also cloud-based customer and practice management software like Clio & online dispute resolution platforms like Rechtwijzer[39]. All these platforms aim to address asymmetric legal knowledge by providing credible legal information, reduce the costs of dispute resolution and foster efficiency in the delivery of legal services.[40]

 

Moreover, the Courts of United Kingdom have issued Practice Direction 51Y and 51 Z[41] which (a) elucidates the manner in which the court may exercise its discretion to conduct hearings remotely in private; and (b) describes what steps the Court may take in order to ensure access by the public to remote hearings that have been held in private & provides provision as to proceedings can be stayed and also to enforce, possession. Respectively. Where face-to-face hearings are a necessity, His Majesty Courts and Tribunals has taken steps to consolidate the work into a small number of ‘priority’ buildings.[42] A daily update of which court buildings are open is available online. As part of a one billion programme of reforming the judicial system, the Courts of England and Wales have adopted new forms of digital technology and e-filing procedure, e-filing of cases involving software and hardware requirements.[43] For instance, a user must have a personal computer running Windows, OS X or Linux; a web browser such as Mozilla Firefox or Google Chrome; the Adobe Reader 11 software; and a scanner.[44] Only PDF documents are accepted for e-filing which can be produced by scanning hard copies of the documents & when documents in paper format are scanned, the resolution must be set to 200 DPI.[45]

 

1. Singapore:

Singapore also took the lead in implementing E-Court system through its Electronic Filing System (EFS) for civil matters and Integrated Criminal Case Filing and Management System (ICMS) for criminal matters. This system enables the lawyers & litigants to submit and access case materials electronically & thereby, reducing the dependency on manual filings rather having the facilities of video conferencing permitting the witnesses to participate in the proceedings remotely and thereby, enhancing the efficiency of the court system. Identifying the flexibility of the system, the next step in the progressively erudite usage of technology is the introduction of eLitigation which has ample benefits such as:[46]

• Protected access to the web-based services via Singpass
• Online filing which can be saved for submission at a later time
• Dynamic use of e-forms in place of pdf
• Managing case files via email & SMS reminder alerts
• Flexibility in the selection of hearing dates by calendaring & hearing management module.[47]

The electronic “war rooms” to store all documents and relevant material of case were envisioned by Singapore Academy of Law (SAL) which would be accessible to parties and stakeholders in a dispute 24*7.[48] These war rooms would facilitate the communication and correspondence between the litigant and his lawyer. This concept would help conducting the litigation electronically at every stage of a proceeding, end-to-end litigation process, and opportunity to perform substantive legal analysis and collaboration with colleagues and clients in real time, even during actual proceedings.[49]

 

1. United States:

Extensive testing of E-Court systems has been underway in the United States, with notable success seen in the courtroom of the future initiative in Michigan. This initiative has introduced state-of-the-art courtroom equipment, including touchscreens, digital projectors and video conferencing capabilities.[50] By adopting these advancements, the program has reduced the reliance on physical filings and enhanced the efficiency of judicial proceedings. Furthermore, Utah has implemented an online system for resolving disputes, allowing parties to settle minor claims cases without the need for physical courtroom appearances.[51] This approach has resulted in a decrease in the number of trials and improved the effectiveness of the dispute settlement process.

 

1. Canada:

The E-Courts system has been successfully implemented in the Canadian province of Ontario, allowing parties to digitally submit and access case records. This system incorporates video conferencing features, enables remote appearances by witnesses and lawyers, thereby reducing the need for physical presence in court.[52] The system also incorporates online dispute resolution features, enabling parties to resolve disputes without the need for physical courtroom appearances. This technology has accelerated access to case information, reduced costs, and enhanced the efficiency of the legal system.[53]

3.2 India’s Experience:

Hinging on the model law & seeing the swift growth of technology ie Information and Communicational Technologies (ICTs) in the systems, the then Hon’ble Chief Justice of India proposed to the central Government to constitute an committee with an objective to assist him to formulate a National Policy on computerization of Indian judicial system and advise on technological communication and management related changes. An e-committee was constituted under the supervision of Justice Dr. G.C. Bharuka[54] which prepared a report on strategic plan for implementation of ICTs and presented it to the CJI on 11th May, 2005.[55] The e-courts project proposed by the CJI received financial sanction by the Government of India as integrated Mission Mode Project which is a Pan-India Project, monitored and funded by Department of Justice, Ministry of Law and Justice, Government of India. This project 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.”[56]

 

It envisions the following purposes:[57]

• To help the judicial administration of courts in streamlining their day to day activities[58]
• Efficient and time bound delivery of citizen centric services[59]
• To assist judicial administration in reducing the case pendency[60]
• To provide transparent information to litigants.[61]
• To provide access to legal and judicial databases to the judges.[62]

The ultimate aim is to bring the judiciary closer to the common litigant.

 

The brief timeline of the project is as follows:[63]

2005: National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary–2005 submitted by e-Committee, Supreme Court of India.

2007: Phase I of the e-Courts project begins; installation of hardware, LAN & Case Information Software (CIS); courts launched websites; Judicial officers were trained in the use of CIS.

2013: The Chief Justice of India, P. Sathasivam, launches the e-Courts national portal, ecourts.gov.in; 2,852 districts and taluka courts secure presence on the portal and provide case status, cause lists; uploading of orders and judgments followed in due course.

2015: Phase II of the e-Courts project sanctioned; additional hardware; Free and Open Source Solutions (FOSS); all court complexes connected to jails via desktop-based video conferencing; information available in local languages on court websites; kiosks provided in courts and online payment gateway introduced.

2020: During the lockdown imposed by the pandemic courts began using online tools such as ‘Zoom’ for virtual hearings; systems for e-Filings, e-Hearings, e-Trials introduced.

2021: Draft Vision Document for Phase III released for public response (April); Rules for live streaming of court proceedings released and feedback from stakeholders invited (May and June).[64]

 

TRADITIONAL COURTS VS. E-COURTS:

India, a dynamic democratic country, adopts the adversarial system of justice. It is a system which is used in the common law countries, where there are two parties [ Petitioner & Defendant in a civil matter & Prosecution & Accused in a criminal matter ] are represented by their respective advocate & he then represent the matter to an impartial person in authority [ known as Judge ] who comes to the conclusion as to what is the truth based on the arguments of facts presented before him. He is an impartial person and that’s why known as the arbiter of the law. Traditionally, the courts are accessed physically ie where all the stakeholders work in the premises and all the operations are carried out manually ie filing of cases on manual register, presence of litigants & witnesses in person, submission of documents or presentation of evidences manually, etc. However, with the embracing of technology the way of working has changed for the better. Following are the various markers of difference:

1. Meaning: Traditional Courts are the courts where the judicial process is carried out in brick and mortar structure whereas the e-courts are the courts which uses technology in the judicial process in order to make it more efficient, accessible & speedier.
2. Accessibility: The traditional courts can be accessed by being physically present there ie offline whereas the e-courts can be accessed via click of the mouse ie online.
3. Filing of Cases: The cases are filed manually in a traditional set-up whereas the cases are filed electronically, using online softwares which are approved by the relevant authority.
4. Mode of carrying case files: In traditional set-up the case files, documents & evidences are physically carried to the courtroom at each hearing whereas the same are not required to be carried, rather they are available at the click of the mouse.
5. Submission of documents & evidence: In traditional set-up the documents & evidence are submitted physically in the courtroom whereas the same are submitted electronically on the website of the respective district court, without any hassle to be present in court.
6. Sharing of case information: The case information in a traditional court system is shared when one party gives the hard copy of the document face-to-face to the opposite party or vice-cersa whereas the information gets exchanged electronically between both parties via online platforms.
7. Dispatching of Summons: The summons to either the opposite party or witness is dispatched through summon server, who physically goes at the place of business or residence of the specific person & takes signature as a proof of dispatch whereas in e-courts the summons can be sent via whatsApp or e-mail and the delivery itself is taken as a mode of dispatch.
8. Participation of Accused: In a traditional set-up the Accused has to be physically present in the court premises & that too on every date of hearing whereas in e-courts Accused needs to be present via online mode hence, saving the time, money and other resources of the nation.
9. Judgements & Orders: In order to have the copies of judgements or orders the party either has to go to the court & obtain it from the respective court official or he can ask the Advocate for the same. But in e-courts the orders & judgements are uploaded on the website of the respective court [ e-courts portal ] and party can access it anytime and anywhere.

The recording of evidence through video conferencing came to be recognised by the Hon’ble Supreme Court in the case of State of Maharashtra v. Dr. Praful B. Desai[65] where the witness sitting abroad was willing to assist the court in getting his evidence recorded via VC wherein the court held that law cannot standstill and it must adapt to the changes with time and the requirement of section 273 of CrPC, 1973 of “presence of accused” is also being fulfilled as long as the accused and /or his pleader are present when evidence is recorded.

The Hon’ble Supreme Court in Swapnil Tripathi v. Supreme Court of India[66] issued comprehensive guidelines for live streaming of Court Proceedings in the Supreme Court in order to make a move towards greater accessibility and transparency of & in the courtroom[67]

CONCLUSION:

E-Courts will certainly shape and outline the 21st century the digital century where the information would be available at the click of the mouse and that too any time of the day or at nay place. It has been proved to be game-changer in order to transform the access to justice by pulling out the impurities of pendency, low judge to citizen ratio, delay in disposing the cases, etc. Currently, we are in the mutable stage between print media and technology based society nevertheless the convergence of technology in the judicial system has proved to be fruitful not only for the lawyers but for every stakeholder involved in the judicial process and their strong collaboration with government or civil society organisations will yield maximum benefits in making the vision of every life living with the sense of dignity & freedom an actuality, rooted in the principles of inclusivity & participation.

 

 

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[1] Research Scholar, Department of Laws, Panjab University, Chandigarh

[2] www.geeksforgeeks.org accessed on 1st June, 2024

[3] Justice RituRaj Awasthi, “The idea of Justice after 75 years of Independence” available at www.cdnbbsr.s3waas.gov.in accessed on 1st June, 2024

[4] ibid

[5] ibid

[6] ibid

[7] ibid

[8] ibid

[9] The works of PV Kane, Vol. 3, p. 243, 248

[10] Supra note 9

[11] The Constitution of India, Art. 124

[12] Id, Art. 214

[13] https://doj.gov.in last visited on 2nd June, 2024

[14] ibid

[15] https://www.mha.gov.in last visited on 2nd June, 2024

[16] Supra note 13

[17] Supra note 13

[18] Steve Wilson & Helen Rutherford, “English Legal System” (2018)

[19] Essay on Access to Justice, available at https://www.studocu.com accessed on 2nd June, 2024

[20] Lord James Bryce (in Modern Democracies)

[21] Connellan Gregory, “Access to Justice” Legaldate 2001, vol. 13, pg 5-8

[22] Pia Letto Vanamo, “Access to Justice: A conceptual & practical analysis with implications for Justice Reforms” IDLO Voices of Development Jurists paper series vol. 2 ( 2005 )

[23] The Universal Declaration of Human Rights, 1948, Art 8

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the Constitution or law

[24] Id, Art 10

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him

[25] The International Covenant on Civil and Political Rights, 1966, Art 2(3)

Each State party to the covenant undertakes:

1. To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity
2. To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any competent authority provided for by the legal system and to develop the possibilities of judicial remedy

[26] The Constitution of India, 1950, Art 14

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India

[27] Id, Art 21

No person shall be deprived of his life or personal liberty except according to the procedure established by law.

[28] Item 11 A: Administration of Justice; constitution and organisation of all courts, except the Supreme Court and the High Courts

[29] https://www.digitallibrary.un.org accessed on 3rd June, 2024

[30] ibid

[31] Prof. Dr. Jyoti Rattan & Dr. Vijay Rattan, “Cyber Laws & Information Technology” 9th edn (2022)

[32] Supra note 20

[33] https://www.uncitral.org accessed on 3rd June, 2024

[34] ibid

[35] ibid

[36] Supra note 33

[37] “Use of technology in judicial process and alternate dispute resolution” 2015 available at www.lawctopus.com accessed on 3rd June, 2024

[38] ibid

[39] ibid

[40] Supra note 37

[41] K Subramaniam,“The epidemic and ensuring safety in courts” 2020 available at www.thehindu.com accessed on 4th june, 2024

[42] ibid

[43] ibid

[44] ibid

[45] Supra note 37

[46] https://www.shodhganga.inflibnet.ac.in/handle/10603/330764 accessed on 5th June, 2024

[47] Supra note 37

[48] Charlie Harrel, Digital “War Room” in Hearings, Trials and Beyond: How Technology Innovations in Singapore, the UK and the US are transforming the legal landscape tech talk, available at https://v1.lawgazette.com.sg/2016-10/1686.htm accessed on 5th June, 2024

[49] Supra note 46

[50] Martinez A & Fabra Abat Pere, “E-Justice: Information and Communication technologies in the court system” (2008)

[51] ibid

[52]https://justice.gov.bc.ca/cso/about/index.do;jsesssionid=cio8vrXxHzCv59WxK4b3GWsZ.0e1ba411-53d7-3b0d-8e0a-d5b7d8cafbab accessed on 7th June, 2024

[53] ibid

[54] Justice Sunil Ambwani, "Information and Communication Technology in Courts" at National Judicial Academy, Bhopal.

[55] Computers are not new to the Indian courts. Towards the end of 1989, one low-end computer was installed in Supreme Court of India for caveat matching. Immediately thereafter, in 1990, I initiated the process of court computersation in Patna High Court, as a sitting at Patna High Court. On my transfer to Karnataka in 1994, I undertook to introduce ICT in the entire judiciary of the state of Karnataka. Through the Karnataka judiciary webstie, case lists of high Courts and district courts was made available online, a day before, for the first time in the country. The system created has subsequently been adopted in different states in India.

[56] Kshitiz Verma, “e-courts Project: A Giant Leap by Indian Judiciary” (2018)

[57] ibid

[58] ibid

[59] ibid

[60] ibid

[61] ibid

[62] ibid

[63] Source: compiled by authors from the websites of the Ministry of Law & Justice (https://doj.gov.in), Supreme Court’s e-Committee (https://ecommitteesci.gov.in) and e-courts (www.ecourts.gov.in)

[64] Supra note 46

[65] AIR 2003 SC 2053

[66] 2018 (11) SCALE 475

[67] https://pib.gov.in accessed on 8th June, 2024