By: Mohammed Nazeeruddin Khan, Junior Research Associate, PILPG-NL
As COVID-19 began to make a foothold in India, the government issued urgent health advisories and imposed what is being called the world’s biggest lockdown. Amidst the uncertainty, the Supreme Court of India moved its business online, with the National Informatics Centre (NIC) providing technical support. The NIC is no stranger to online justice, working with the e-Committe of the Supreme Court to equip all parts of the Indian Judiciary with ICT infrastructure since 2004 through the E-Courts Project (ECP). The ECP, while not complete, has enhanced the capacity of the judiciary to conduct proceedings online and prepared courtrooms for operating online in the midst of a pandemic. Although most members of the legal community have lauded the quick transition during Covid-19, calling it the future of Indian litigation, others have criticized it on the grounds of privacy infringement and a lack of technological infrastructure. Thisarticle discusses the achievements of the Judiciary in giving effect to health advisories while keeping access to justice open. The article also reflects upon the potential challenges facing the Judiciary in its quest for virtual justice following on from the global pandemic.
What Has the Transition Achieved?
In the wake of the Covid-19 emergency, courts of national and international jurisdictions have shut down and postponed hearings. Nevertheless, the Indian Supreme Court and High Courts such as Kerala and Telangana have joined the list of judiciaries that are running amidst nationwide lockdowns.
The digitalization efforts by the ECP over the years has enabled courts in India to opt for tech-driven ways to keep access to justice open in the context of stringent social distancing norms. Through virtual justice initiatives, courts in India are still accepting new filings and conducting hearings that ensure redress during an emergency, and, to a degree, prevent a backlog of cases.
Another achievement of the transition is the reduction in litigation costs. India’s Supreme Court hears hundreds of cases in a single day requiring litigants to travel to New Delhi from every corner of the country. expenditure incurred on travel and lodging adds to the cost of securing sound representation before the top court, in itself beyond the reach of most. This applies to the High Courts as well, with a large number of people traveling from smaller districts and remote locations to state capitals to litigate their grievances.
In the time of COVID-19, where the economic slowdown in India has a bearing on rich and poor alike, the cost of seeking justice stains already stretched pockets. The transition to online proceedings can overcome distance while cutting down costs. Lawyers and parties can now conduct court business from their homes and offices, reducing litigation expenses. This could be seen as a temporary solution to a temporary problem, but it can potentially change the way litigation is conducted in the days when normalcy returns.
Previous efforts towards digitalization have borne fruit and allowed courts to function despite a global pandemic. However the shift to virtual proceedings has also revealed some shortcomings to be addressed.
Challenges Moving Forward
The main challenge facing the Judiciary here, is the gap in access to technology that impedes access to justice under the current model. A lack of physical infrastructure and hardware to facilitate virtual justice initiatives is a significant problem in India. Statistics show that despite being one of the largest markets of smartphones globally, ownership is restricted to roughly more than half the population. Access to laptops and other equipment to facilitate online proceedings,such as webcams, is even more limited. Hence, the infrastructure shortage curtails the outreach of virtual justice. Another challenge that the Apex Court faces is internet speed and connectivity. Reports show that India’s internet speed is significantly lower than the global average. Slow internet speed causing a lag in virtual proceedings impairs a counsel’s capacity to advocate for clients before the bench. This issue was flagged by several senior lawyers before the Apex Court via online media. Fast internet connections are an important prerequisite virtual justice, and the current lack of these fast connections is a prominent obstacle to overcome.
Furthermore, as businesses, judiciaries, and governments make the transition to online work environments, concerns are being raised about data security. The judiciary in India is currently using a variety of online platforms such as Zoom, Skype, and Vidyo for its business. This has occurred despite the Courts official use of Vidyo hosted on propriety servers. The security provided by these applications is highly debated, and news has been rife with cyber attacks and breaches of privacy. In this regard, the lack of cybersecurity measures in online courtrooms has also been raised by lawyers.
Cybersecurity in India is currently governed by the Information Technology Act, 2000. The Act addresses issues of e-commerce and e-governance, and is not a dedicated cyber security law. The law along with other measures such as the National Cyber Security Policy, 2013 and the Computer Emergency Response Team (CERT) have been criticized by experts who doubt their competence against contemporary cyber threats.. With the absence of an updated regulatory framework, instances of zoom bombing or leaks of confidential data could stop virtual justice in India entirely.The challenges listed above need to be addressed as a priority. However, apart from these, other potential concerns relating to due process and evidence have been raised and can be viewed here. The challenges are many and varied in the journey towards virtual justice.
Concluding Remarks
The COVID-19 situation has caused a massive change in the world and the way of life as we know it. With states employing lockdown measures that alter human behavioral patterns, the importance of technology in a socially distanced form of living has increased substantially. These measures to combat the ever growing impact of the virus have also changed the way litigation is conducted and justice is delivered, in contemporary times. The Indian Judiciary can jump on this opportunity to devise technologically driven solutions to increase access to justice during COVID-19 and beyond. While there are challenges in implementing these changes, they are not insurmountable.