For much of last month, the Indian public has observed with interest the criminal proceedings that followed the arrest of Aryan Khan, son of filmstar Shah Rukh Khan. When the Bombay High Court finally granted bail to Aryan, millions of Indians learnt that grant of bail by a court does not automatically entitle the accused to an immediate release, unless the bail order is deposited in a physical letterbox installed outside the Arthur Road prison. The box is opened four times a day and Khan’s lawyers missed the last deadline because of which his son had to spend an extra night in jail. People were astonished to learn that a “bail box” can stand between jail and the freedom of an Indian citizen.
Post this episode, Justice D Y Chandrachud, who heads the e-Committee of the Supreme Court, commented at a public event that the delay in communicating bail orders has to be addressed on a war footing. In September, his fellow judges on the bench had taken suo moto cognisance of the issue of non-release of prisoners after grant of bail and directed the creation of FASTER (Fast and Secured Transmission of Electronic Records) System, which would transmit e-authenticated copies of the interim orders, stay orders, bail orders and record of proceedings to the duty holders. The court was entirely silent on the fact that the Phase II document for the e-courts project, published in 2014, had announced an ambitious but unfulfilled plan to allow for the transmission of information between key institutions in the criminal justice system.
The “bail-jail” connectivity issue in the Aryan Khan case is but a symptom of a much deeper problem with the structure, management and accountability of the e-Committee, which is responsible for steering the e-courts project. A budget of Rs 935 crore and Rs 1,670 crore was approved by the government for Phase I and II of the project, respectively, and the e-Committee, headed by a Supreme Court judge, decides how to spend it. Yet, there is relatively little to show for all this money. Many courts do have computers and it is easier to get case information for ordinary citizens (provided they can read English) but why is it that a basic functionality, like electronic transmission of orders between the courts and the prisons, escaped the attention of the e-Committee, despite being mentioned in its own vision documents?
This could be because the e-Committee is not accountable to anybody. Neither the Comptroller Auditor General (CAG) nor the Public Accounts Committee (PAC) of the Lok Sabha has reviewed its handling of the e-courts project, despite the substantial expenditure of public funds. The Department of Justice (DoJ), which works under the Ministry of Law and Justice, after much pressure from the Parliamentary Standing Committee on Law and Justice, commissioned two timid, if not limited, evaluations of the project to the same Delhi-based think-tank. A project as complex as this should, at the very least, be subject to public review or a performance audit. These are, after all, the basics of public accountability and project management. If judges of the Supreme Court want financial power and are convinced of their managerial prowess, they should be willing to submit themselves to questioning by constitutional authorities like the CAG and PAC. If they are not willing to do so, perhaps they should step away from the role and let bureaucrats accountable to the legislatures take up the issue.
This issue is symptomatic of a larger trend wherein high courts, which are responsible for administering lower courts, claim the shield of judicial independence to escape public scrutiny of their functioning. For example, we know from personal experience that most high courts do not reveal documents as basic as financial audit reports, even if a request is made under the RTI Act.
The answer to fixing our judicial system does not lie in throwing more money at it or building shiny new digital platforms or creating a new behemoth like the National Judicial Infrastructure Corporation as demanded by the incumbent Chief Justice of India. The solution lies in demanding accountability from judges who insist on running administratively-complex projects for which they are not trained and for which they lack the required skills.
This column first appeared in the print edition on November 5, 2021 under the title ‘Putting justice in order’. The writers are a legal researcher and lawyer, respectively.
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