The Parliamentary Standing Committee on personnel, public grievances, law and justice, in its recent report, recommended holding virtual courts even after the pandemic ends. The chair said, “the parliamentary panel strongly pitched for virtual courts… digital justice is cheaper and faster besides addressing locational and economic handicaps; ensures safety of vulnerable witnesses providing testimony, expedites processes and procedures and are an improvement over traditional courts as they are most affordable, citizen-friendly and offer greater access to justice”. Meanwhile, there is a large group of lawyers of the Delhi High Court clamouring for more physical hearings and a smaller group of them objecting, citing health concerns.
While the government popularly believes digitisation is the answer to all the problems of governance, and these are often excitedly referred to as “game changers”, issues related to digital technology solutions need careful analysis and an overhauling of both laws and existing systems before they are introduced. While I am neither a lawyer nor a digital expert, I have attended court hearings more than 180 times since the 1980s on cases related to trespass, defamation, right to livelihoods of artisans and against administrative injustices. Over almost two decades, 150 of these were related to a CBI case emerging out of the Tehelka.com allegations. Of these, the last 12 were video hearings on final arguments, verdict, sentencing and appeal, which took place during this pandemic. One personally experienced the benefits and flaws of the virtual system.
“Justice delayed is justice denied” is a notoriously abused maxim in our court system considering there are 3.1 crore cases pending in the lower courts (83 lakh pending for over 10 years), 44 lakh in the high courts (32 lakh pending for over 10 years), and 60,000 cases pending in the Supreme Court (the figures are as of 2019). Prisons are over capacity by 114 per cent, of which two-thirds are undertrials, who have had no justice at all. The massive injustice already done to them is unforgivable.
It is hoped that virtual courts will reduce the pendency of cases by reducing the time taken on small financial issues like insurance, traffic claims and challans that clog the system. But major policy changes always have unintended consequences, so careful thought is required on what types of cases and what parts of the judicial process are amenable to going online. It should also be a matter of choice if participants on either side want to use the virtual route. Certain cases of tax, insurance and some corporate matters could move to the online dispute resolution processes through negotiation, arbitration and conciliation. Reducing pendency through virtual courts will reduce travel costs, although lawyers are unlikely to reduce their fees. When government agencies file cases or appeals, they ignore these costs as they come out of the public exchequer. Very often, the police and other criminal investigative agencies take years to produce witnesses. Judges hesitate to compel them. Repeated adjournments are sought, not just by the accused, but by prosecuting agencies who are nonchalant. Examination of the causes of pendency should, therefore, extend far wider afield.
Essentially, technologies alone do not improve the system, people do. Adoption of new and evolving technologies requires careful preparation to ensure that “justice delivery services” created by software engineers is matched by local court systems and the level of training given to those who handle them in India’s courts. Currently, judges have had to speak from landline phones or without video, and lawyers have been compelled to argue cases from inside their cars if the network in their homes is faulty. There are audio failures, and lack of connectivity in rural areas. Unless connectivity is established, it cannot be presumed and compelled. Rushing into new protocols without understanding uses and applications will disempower the poor even further, especially undertrials who cannot afford lawyers.
In India, we are already applying digital services to industry, businesses, agriculture, defence, governance, education and health. Today, court rulings have been applied not only to human beings but to animals, rivers and even gods. Therefore, any case involving decisions affecting the life and liberty of persons must remain in the realm of physical courtrooms. Forceful interventions, and often repeated stressing of a point is required in a courtroom. Lawyers need to interrupt when they feel the arguments of their counterparts are factually inaccurate — we are, after all, according to Amartya Sen, “argumentative Indians” — but this cannot happen unless the “host” of the video court hearing unmutes you. Facial expressions such as fear, guilt, regret, sadness, anger, which can affect a case, are constricted and almost frozen into a small space. Faces are often out of proportion and distorted. Nuanced arguments that are most important in law sometimes need perseverance to get across, as is the ability to display evidence creatively (recall OJ Simpson’s famous glove), or the room for presenting many crucial options to create reasonable doubt. Appealing for compassion for the elderly and the disabled, and pleas for leniency of punishment for senior citizens with co-morbidities in COVID-19 times are easily ignored by judges, when the accused is only a small square on a screen and not a frail human being standing before them in flesh and blood.
Seminal and crucial matters that need direct human interaction should never be replaced by virtual courts. The dispensation of justice is a human endeavour made up of laws, ethics, morality, wisdom and compassion. The absence of any one of these five ingredients, short-changed by restrictive virtual situations, would render the exercise of justice only partially satisfactory or even downright unjust.
This article first appeared in the print edition on October 22, 2020 under the title “No software for justice”. The writer is former president, Samata Party