“I am of the firm belief that unless infrastructure is strengthened, it is unfair to expect courts, particularly lower courts, to do miracles and increase the pace of justice delivery. Both quality and quantity of justice delivery can be improved only when support systems are showing enough to meet the challenges”, said the Chief Justice of India speaking on his plan of constituting a National Judicial Infrastructure Corporation (NJIC). Justice NV Ramana assumed the office of the CJI with the plan of modernising the judicial infrastructure at all levels and created the NJIC for the purpose. He has raised the expectations of all for an end to at least some major ills like long delay from which the judicial system from top to bottom is suffering.
The NJIC is conceived “to build a comprehensive, self-contained, all-inclusive, and modern court complexes across the country to augment judicial infrastructure”. The Corporation envisaged by the CJI to “help bring uniformity and standardisation in judicial infrastructure”, will be managed by a committee comprising judges of the Supreme Court who have chances of becoming CJI in future, CJs of High Courts having long tenures, and Finance Secretaries to Union and State Governments, and will be headed by the CJI.
In the context of the judiciary, infrastructure does not refer only to spacious building complexes with modern furniture and amenities and filling up vacancies. CJI explains that modernisation of judicial infrastructure is for “providing equal and free access to justice” which would be possible through a “barrier-free and citizen-friendly environment”.
It will cover the entire processes, tools, information system including storing of documents and their retrieval, and telecommunication networks, internet, etc. Day-to-day functioning of the legal system depends on these tools, and its efficiency depends much on the ready availability of modern gadgets and their upgradation from time to time. Management of case documents, records from other relevant cases, precedents and previous arguments and verdicts are the indispensable tools in judicial decision-making.
Infrastructure for any institution expands with advancement of technology. Many non-legal, non-judicial expertise will be required to handle work at every stage of justice delivery mechanism.
Presently, the image of the courts particularly subordinate courts is one of old buildings crowded with men and material – litigants and advocates loudly discussing cases and huge piles of vertically folded paper records of several years. The image has to change and with it also several legal practices like adjournment, which contribute to delay in justice.
Pendency in subordinate courts are much more than in high courts. In April 2021, cases pending in various courts were over 67,000 in the SC, 57.53 lakh in high courts, and 3.81 crore in district and subordinate courts which was 19% increase since March 2020. The number is expected to grow further – a situation to which poor infrastructure is a major contributing factor. Judicial system at the three levels has taken a long time to adopt computerisation. E-project for e-payment, e-summons, e-hearings, and e-judgement, which has been taken up by the SC, must be extended to all high courts and subordinate courts.
Niti Aayog, in a Strategy Paper prepared in 2018, has noted that it will take more than 324 years to clear backlog in courts, which was 2.9 crore at that time. The situation is more grim today.
Another problem is vacancies in the post of judges to the tune of over 5,000 in subordinate courts, and about 400 in high courts. To keep posts vacant when cases are pending and piling up enormously, is bound to be discredited as a sign of negligence and indifference. Law making and execution will not serve the purpose unless the machinery that can establish the constitutionality of legislations, and prevent violations of the rule of law is well-oiled to run fast. Courts need not intrude into the sphere of the legislature or executive, but has to adhere to the principle of separation of powers.
Added to the normal problems bothering the judiciary, the impact of Covid-19 and restrictions under lockdown have almost paralysed the functioning of the judiciary to bring the whole system to a standstill. It has provoked courts to seek ways of circumventing pandemic restrictions on face-to-face contacts which effectively block court procedures. A remedy is sought in modernisation of court procedures by adoption of digital technology. As India is not generally averse to the idea of technological innovations per se, but only bothered about practical difficulties in the way, there is hope that the Indian legal machinery can get ready to adopt modernisation with ease which will facilitate strengthening the judicial infrastructure.
Legal system has already entered into the digital era in India. It may be recalled that in 2003, while hearing a case of State of Maharashtra, the SC held that recording of evidence by a court through video-conferencing shall be considered to be “as per the procedure established by law”. It marked the beginning of the use of the system of video-conferencing in court procedure. Online procedure is an accepted form of dispute resolution.
India is not alone in facing pandemic caused judicial paralysis. It is felt all over the world compelling many countries to discover ways of conducting judicial work without physical presence of men and women in courts.
Jury trial had to be suspended in many countries where it was in vogue in the wake of the spread of the pandemic. Only essential litigations were taken up in many European countries. India too had to restrict judicial operations to urgent matters and reduced number of judges on duty.
In the US, legal apprenticeship conducted with the use of remote technology led to a rapid change in conducting litigations by using the same technology. Technology enabled proceedings conducted by persons stationed at different places replaced personal attendance in courts and court rooms. Canadian Federal Court started remote trial by video-conferencing in 2020 after a trial management conference. A write-up on this expresses a hope that Canada will continue it after the pandemic also, which seems to convey that hesitancy over trial without physical presence of witnesses is common. Singapore, which was using video links even before the pandemic, extended its usage to facilitate continuance of Covid-appropriate behaviour. China started with a positive attitude to remote hearings in courts.
To help accelerate global transformation in judicial service, an international association of judges, lawyers, court officials, litigants, and court technologists has come up to share their experiences in application of technology to develop “remote alternatives” to traditional forms of court hearings.
Pandemic continuing for a long time in many waves , the practice of remote hearings and remote delivery of judgements are likely to settle as permanent features of the judicial system in many countries that are able to teach and train concerned people in the use of remote technology. India has to go along with them and create necessary infrastructure. In doing this, the danger of digital divide making justice a “remote” possibility to the digitally deprived population has to be avoided.