Ensure access to justice in a post-Covid world
Any move towards the online functioning of courts must account for the digital divide in India
The Covid-19 pandemic forced the Indian judiciary to adopt digital processes at an unprecedented speed and scale. With a lockdown being imposed on March 25 and the enforcement of physical distancing, courts across India started using video-conferencing to hear cases, accompanied by facilities for e-filing and e-payment, wherever possible. Although there has been media coverage of online hearings in the Supreme Court and a few high courts, the experiences of district court lawyers remain at the margins of public awareness. Given that the district courts are the first port of call for litigants, it is critical to understand the circumstances under which lawyers in these courts worked during this period.
DAKSH undertook a rapid review of the experiences of 124 lawyers in nine districts across Delhi (Shahdara and Central Delhi), Madhya Pradesh (Bhopal, Barwani, Morena, and Sidhi) and Karnataka (Bengaluru Urban, Dakshina Kannada, and Kalaburagi) of accessing courts during the pandemic between July 1, 2020 and September 20, 2020. Since this is India’s first large-scale implementation of online hearings, e-filing and e-payment, the findings will help shape the way forward for virtual courts.
Any move towards the online functioning of courts must account for the digital divide in India. While mobile phones are used widely, access to the internet and advanced digital equipment remains limited to some urban users. Lawyers in semi-urban and rural districts found online hearings challenging because of internet connectivity issues and unfamiliarity with this mode of working. In MP, a majority of the respondents opted to attend online hearings from designated booths on the court premises because of poor connectivity and the lack of smartphones and/or computers in their homes and offices. Although having booths within the court premises addressed the technological barrier, it raised a fresh set of challenges in the context of the pandemic because it became difficult for court staff to enforce physical distancing.
Another drawback of implementing online hearings was that the public did not have access to these hearings in all nine districts. This is a significant departure from the open justice principle followed by Indian courts. In physical hearings, judicial proceedings are conducted and decisions pronounced in “open court”, the evidence is communicated publicly to those present in the court, and there are no impediments to fair and accurate reporting of judicial proceedings.
Online hearings should try to replicate this openness as far as possible, by allowing for litigants and the general public to watch the hearings. Opacity reduces the confidence of citizens that even in an online hearing their case will be heard on merits, while giving a fair hearing to all parties, leading to enforceable remedies, utilising procedures that are conspicuously fair and perceived to be so.
Across the three states, the production of undertrial prisoners remotely was not considered mandatory and seemed to depend on the judge hearing the case. The production of an accused person before a magistrate is an important fair-trial requirement because it allows the magistrate to enquire whether the accused has legal representation, to determine the age of the accused, enquire about their health, and make a reasoned decision on the need for further confinement. This should not be dispensed with for the sake of expediency.
Along with connectivity, the choice of digital platforms also affected experiences of online hearings. None of the platforms used for webinars and meetings is customised for court hearings. So, hearings on these platforms take place in the same manner as a virtual meeting and do not emulate the experience of a physical court. To illustrate this point in the context of criminal trials, defendants may feel comfortable telling a judge before whom they are physically present about custodial violence, but cannot do so on video conference from prison because the prison staff are present in the same room. Therefore, the architecture of the platform must allow the defendant to speak to a judge without the prison staff being present. Additionally, there must be a provision for undertrial prisoners to confer in private with the lawyers virtually.
The experience of several respondents with e-filing has not been agreeable and they have reverted to physical filing as soon as it was permitted. In several places, e-filing had to be followed by the physical filing of the same documents, making the process of e-filing redundant. Respondents also found e-filing inconvenient because of the restrictions on file sizes and formats, and technical issues with the websites. They stressed on the need for support in the form of training videos and helplines for lawyers to help them navigate online hearings.
The shutdown of courts across India provided an opportunity to adapt to digital modes of working. The large strides made in this regard need to be evaluated and improved upon. It is important to not lose this momentum and institutionalise a hybrid model of working along with systems such as e-filing, e-payment while safeguarding due process and ensuring access to justice to people on both sides of the digital divide.