TECHNOLOGY AND TIMELY JUSTICE
Intelligent use of ICT can revamp the Indian justice delivery system
Dr. Justice G.C. Bharuka*
It is now internationally accepted that the use of Information and Communication Technology (ICT) is one of the key elements to significantly improve the administration of justice. The rapid developments in technology have opened up new opportunities that were unthinkable a few years ago. It is now well established that use of ICT in judicial systems can enhance efficiency, improve access and encourage timeliness, transparency and accountability1.
Automation of processes, increased transparency across levels and effective supervision and control may also help in eradicating corruption to a large extent. Keeping in view these aspects, almost all the countries in the world, including India, have made necessary amendments in their procedural and substantive laws to accommodate technology in their judicial systems.
The World Bank in its report on "Court Performance around the World' has said that "an effective, accessible justice system should provide justice and fairness to litigants with reasonable cost and speed, in a transparent and responsive manner and with as much certainty as possible"2. According to this report, efficacy of justice system has a direct bearing on development and good governance3. Speedy justice has also been recognized as a fundamental right under our Constitution4.
It is indisputable that the Indian judiciary is in urgent need of enhancing its efficiency, accessibility, affordability, transparency and above all timeliness, without compromising on the quality. In order to enhance the judicial functioning of Indian judiciary, an investment of more than Rs 800 crore has been made in the last one decade towards ICT enablement of judiciary, but except dumping hardware in already crammed court halls, nothing more has been achieved in the true sense. The following section critically assesses the possible causes of this failure and suggests remedial measures.
Chronic Problems with the Indian judicial system
Judicial delays coupled with other deficiencies of judicial system and administration of courts has always been a matter of concern in India. Even in 1950s, the then Prime Minister, Jawaharlal Nehru, had expressed sorrow on this state of affairs and pleaded to make determined efforts to speed up the rusted and outmoded judicial machine5. In 2001, expressing its concern in this regard, the Supreme Court, in the case of Gaya Prasad, had observed,
"… the time is running out for doing something to solve the problem which has already grown into monstrous form. If a citizen is told that once you resort to legal procedure for realization of your urgent needs you have to wait and wait for 20 to 30 years, what else is it if not to inevitably encourage and force him to resort to
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1Report of European Commissionfor the Efficiency of Justice on "Efficiency and Quality of Justice", Ed. 2014.
2Marina Dakolias , Court Performance around the World A Comparative Perspective, World Bank Technical Paper No. 430, 1999, http://bit.ly/22H7Vjn
4Subrata Chattoraj v Union of India, (2016) 2 SCC 1
5Times of India, March11,1959, p.6
extra-legal measures for realizing the required relief. A Republic governed by the rule of law cannot afford to compel its citizens to resort to such extra-legal means which are very often contra-legal means with counter-productive results on the maintenance of law and order."6
In 2002, the report of the National Commission to Review the Working of the Constitution7 had similarly remarked that, "About half a century of the Constitution at work has tossed up many issues relating to the working of the judiciary." It notes gravely that,
"particularly disturbing has been the chronic and recurrent theme of near collapse of the judicial trial system, its delays and the mounting costs. The glorious uncertainties of the law have frustrated the aspirations of an equal, predictable and affordable justice."
From the justice seekers' perspective, the situation has further deteriorated with added allegations of mounting corruption in judicial functioning. It appears that the Indian judicial system is showing signs of becoming an unscrupulous industry meant more to exploit the people seeking justice than to provide them with speedy and cost-effective relief.
Judicial Processes and Management
The gradual deterioration in the functioning of the Indian justice delivery system was for the first time voiced in the LokSabha on 19th November, 1954 through a non-official resolution. This led to the formation of the Law Commission of India. The Commission consisted of 11 members, all of outstanding legal knowledge and experience. Sri M.C. Setalvad, the then Attorney General for India, was appointed as its Chairman. After making an in-depth study about the functioning of the judicial system, it submitted its Report to the Law Minister of India on 26th November, 1958. The Report addressed in two volumes, the complexities of Judicial Processes and Judicial Management respectively that contributed to delays in access to justice.
The Commission had, while negating the plea that the complexity of the procedural laws were the primary cause of judicial delays, said that the delay resulted not from the prescribed procedure, but for non-observance of many of its important provisions, particularly those intended to expedite the disposal of proceedings. According to the Commission:
"The view which attributes the delay mainly to the cumbersome procedure fails to take into account numerous extraneous and personal factors responsible for the delays like, an inefficient and inexperience judiciary, insufficient number of judicial officers, and incompetent and corrupt ministerial and process serving agency, the diverse delaying tactics adopted by the litigants and their lawyers, the un-methodical arrangement of work by the presiding judge and the heavy file of arrears.8
Notably, nearly two decades later, the 77th Report of the Law Commission resonated with the14th report, and stated that certain sections of the Code often left unenforced were those that provided the presiding officer the authority and discretion to expedite the onward flow of a case.9
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6Gaya Prasad v. Pradeep Srivastava, (2001) 2 SCC 604, pr.19
7 Forwarded to the Prime Minister of India on 31 March 2002
814th LIC report,1958 at p.263
9Chapter 4 – 7 (1978)
Chapter 10 of the 14th Report was devoted to "Supervision and Control of Subordinate Courts". The Commission, based on available empirical data, concluded that, "… when adequately supervised, the courts in our country can under the existing procedure, dispose of proceeding expeditiously". The Commission further observed that the failure of judicial administration had occasioned because of unsystematic and dilatory methods of work. It suggested that the defects were capable of being remedied by the exercise of continuous vigilance on the part of the superior courts - which would ensure the adoption of proper methods of work.
The Commission, therefore, considered good and scientific management to be of paramount importance for increasing the efficiency in the judicial system.
Justice Krishna Iyer had also endorsed this view in his book "Justice at Crossroads"10 and considered managerial overhaul of the judicial process the need of the hour11. He noted that the common man was overawed by the judicial process as "riddle wrapped in a mystery inside an enigma, with its baffling legalese, lottery techniques, habitual somnolence, expensive proclivities, multi-deck inconsistencies, tyranny of technicalities and interference in everything with a touch of authoritarian incompetence."
He further pinpointed the managerial incompetence of judges and courts as one of the primary reasons for such a crisis. To quote him:
"Management incompetence is writ so large in the system that a grocer's shop is better managed than a munsiff's court and a business house has infinitely superior management skills than High Courts and Supreme Court. Of course, judges, wise in other ways, are infants in judicial business management."12
According to him, "The call for overhaul must cover management of courts, research and development in justicing processes and projects prepared by a high-powered Judicial Planning Commission".13
Over the course of time, our policy makers have by and large ensured the implementation of all the suggestions relating to manpower, their strength, perks, salaries, training and infrastructural requirements. However, finding out appropriate methods and means for exercising effective control and supervision over subordinate courts and creating management tools by harnessing best of the present day technology has not been given the attention they deserve.
At this stage, it is necessary to notice that presently, there are about 15,000 district and subordinate courts located at almost 3000 towns across the length and breadth of the country. 24 High Courts supervise and control the subordinate courts under their jurisdiction, strangely adhering to the age-old manual methods, which have proved to be more ceremonial than of any effective use in terms of speedy and quality justice.
Lack of Judicial Data required for Management and Policy Making
Timely justice means resolution of a dispute of any nature within a set time frame. This requires framing of policies and its effective implementation. Judicial administration in the country is finding it difficult to devise
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Deep and Deep Publications,1992
ibid at p. 151
ibid at p. 150
and implement the required policies because we do not have accurate data to exactly locate the problem and frame, implement and evaluate the corrective policies.
We have two recent official reports, which acknowledge the unavailability of accurate data of actual state of affairs in our judiciary. The first is the "National Court Management System - Policy and Action Plan" of May 2011, released by the then Chief Justice of India. It notes,
"[judicial] data is manual, sometimes inconsistent, splintered and not available in real time. An accurate and complete national picture of the performance of the Indian judicial system is not readily available. It is therefore hardly surprising that there is considerable misunderstanding amongst policymakers and people at large about the performances of judicial system at the national level; and the challenge it faces."
The second is the Law Commission report of July 2014 on "Arrears and Backlog: Creating Additional Judicial Manpower". It says,
"For arriving at informed understanding of the problem at hand and for making any meaningful suggestion(s), to deal with it, the commission requested all the High Courts to provide data on litigation in each district within their jurisdiction. Some very useful data was produced. However, most High Courts due to variety of reasons could not fully provide the data/information sought".
As per the information available on the website of the Department of Justice, as on June, 2014, there were 15,419 court halls / court rooms available for district and subordinate courts. In addition to these, 1003 court rooms were available in rented premises. Comparing these figures against the working strength of about 15,634 judges as on 31st December, 2014 reported by the High Courts, it is noted that adequate infrastructure is available for the current judicial manpower. Further, there are about 2,251 additional court rooms under construction in States and UTs to take care of the increase in working strength of judges in district and subordinate courts on account of filling up of vacancies. The data, however, shows that the number of residential units presently available for judges is below the current working strength of judges. This issue is being remedied through the construction of additional residential units.
Requisites for Enhancing Judicial Performance
In America, from the beginning of the court reform movement in the twentieth-century until 1970s, efforts to reduce delay were focused on court structure, court resources, and rules of procedure - issues that arose from the cognitive framework of judges, law professors, lawyers, and legislators.15 In 1973, at the initiative of the American Bar Association, the concept of case-flow management was developed for redressal of judicial delays. The value of this concept was confirmed in a study in 1977 by analyzing the US District Courts data. The Law Commission of India16 had reached similar conclusions on analyzing causes of judicial delays in Indian context:
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14 Law Commission of India, Report No. 245: Arrears and Backlog: Creating Additional Judicial (wo)manpower, July, 2014, p.1 15Caseflow Management by David C.Steelman at p.xv
16Law Commission of India, Report No. 245, supra 15
Management of Courts and Cases:
Article 235 of the Constitution of India provides that the control over the district and subordinate courts shall be vested in the respective High Courts. This constitutional requirement is principally exercised by the High Courts in the following ways:
Submission and scrutiny of periodical returns;
Appraisal of the quality of work of the subordinate Courts at the time of the hearing of appeals, revisions and other proceedings by the superior courts
This age-old method is still being followed. The High Courts till date secure periodical returns from the subordinate courts by seeking information in prescribed forms relating to incoming and outgoing of cases, their age, nature, case progression, work done by the individual officers, judicial hours consumed, under trial prisoners, about cases involving senior citizens, women, scheduled caste and schedule Tribes, children, anti-corruption cases and the like. This information is necessary for taking policy decisions for overall improvement of administration of justice. The entire process is manual, that is, prepared on paper and communicated through post or special messengers. The entire process can be automated by capturing the relevant data at source and communicated in digital form in desired formats on real-time basis.
Technology for Timely Justice and Effective Management
Keeping in view the findings of the expert studies following ICT-based systems/sub-systems are required to be developed for providing timely Justice and an effective management and control of subordinate courts,:
Stage wise case progression tracking system - from initiation in finalization
Case flow management system
Adjournment tracking system
Punctuality enforcement system
Judicial hours management system
Interlocutory applications management system
Cause list management system
Rate of case reduction management system
Automation of registry level processes
Automation of registers, periodical statements and returns
Intelligent systems for capacity building of judges
Online automated auditing system of judicial performances
By use of the present-day technology, the above systems can be conveniently developed to optimize the functioning of the Indian judiciary to facilitate litigants' access to justice. In order to achieve this, the system analyst must have a complete understanding of judicial processes, its complications, behavior of its internal and external users, the external interacting agencies and most importantly, the requirements of justice seekers apart from an expertise in development of the ICT infrastructure.
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Technology in Indian Courts
Use of technology in different jurisdictions of the world including India had started in 1990. At that time, it was at its infant stage. In India, we started with preparation of automated cause list in Patna High Court. Gradually, with its growth, progressively its use was explored and applied to automate more functions/ processes. Over the years, similar exercises were taken up in the Supreme Court and other High Courts in India. Subsequent to my transfer from Patna High Court to Karnataka High Court in 1994, we successfully used technology for automating/digitalizing all the judicial processes, from initiation of the cases to grant certified copies.
Towards the end of 1998, the Karnataka High Court hosted its website publishing its cause list, information about case status, judgments and orders and the status of certified copy applications. In 1999, ICT enablement was taken up in all 600 district courts and subordinate courts in Karnataka and accomplished by 2003. For this purpose, user-friendly software was developed in the High Court itself by employing two young software engineers on its rolls. It was named "Litigation Management System (LMS)". The results were very encouraging.17 It was based on my research project undertaken for analyzing the causes of judicial delays. It became an inspiring example for other states as well.
Genesis of E- Courts Project
Supreme Court of India felt that the Karnataka experience should be used to optimize the judicial functioning across the country with central funding. The then Chief Justice of India Mr R C Lahoti, made a proposal to the Central Government on 5 July 2004 for Constitution of an E-Committee for preparing a national plan and implementation strategies. Consequently, by a notification dated 24th Dec. 2004, the said committee was constituted with the author as its Chairman and three specialized members. The National policy and Action plan prepared by the E-Committee18 was approved by the Chief Justice of India on 1st August, 2005.The requisite funds were sanctioned by the Union Cabinet after a prolonged procedural exercise in February 2007 and the National Informatics Centre (NIC) was appointed as the implementing agency of the project though by this time most of the ministries had started opting for "public private partnership" model. This was done despite strong objections raised by the E-Committee which found the NIC's capabilities inadequate to run such a project, as established by the failure of earlier three similar projects19 entrusted to them.
NIC is one of the departments under the Ministry of Information Technology, manned mostly by techno-personnel. It was created in1980s as a wing of the Planning Commission to support government departments and institutions in adopting and using technology. Subsequently, it was attached with the Ministry. With the advancement of technology and its progressive use, best of the ICT manpower moved to the private sectors. Indian IT companies have earned credibility across the world for their professionalism, expertise, knowledge and commitment in successfully implementing ICT projects. From 2005 onwards, many ministries engaged in public services, e-Governance projects, and IT based regulatory measures started undertaking ICT projects on PPP models involving reputed Indian IT companies. The results were encouraging with successful PPP models running to provide public services including in passports, railways, company affairs, aviation, banking among other sectors. Despite success stories of the PPP model, the Department of Justice, whose main function is to promote the justice sector and to protect the interest of justice seekers, agreed on appointing the NIC as the implementing agency for the ambitious E-Courts project.
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17 See Chapter 9 of Author’s Book “Rejuvenating Judicial System Through E-Governance and Attitudinal Change”
18 See website of Supreme Court of India
19 District courts on computerization project 1997, Metro Cities court computerization project 2001 and capital cities court computerization project,2002.
Many countries around the world have secured remarkable success in deploying ICT in their court systems for providing timely and optimized services to the court users. However, in India, the litigant public is still crying for timely justice despite significant investment in ICT enablement of judicial process and India's acclaimed IT expertise. Independent enquiries will show that in the past, the only interest of the NIC had been to buy and flood the court halls with hardware and some nominal software which has failed to deliver the desired result.
The Central Government has recently released an additional assistance of Rs. 1670 crores for spending on ICT implementation in the subordinate courts in India20. A close examination of the sanction order, available on DOJ's website, reveals that it is like reinventing the wheel. It is interesting to note that these fresh funds have been approved for the second phase for similar works, items, etc. for which funds had been approved and spent for the first phase of the e-courts project.
Again, the process of further flooding the court halls with additional hardware, undertaking process re-engineering exercises and other redundant steps have been proposed. At least, the renewed (proposed) exercise should be allowed to be undertaken after thorough examination by independent experts. For connectivity, no money should be wasted on creating local area networking (LAN) and wider area networking (WAN), since now, internet connectivity with Wi-Fi facilities is the most effective means of providing seamless connectivity. The core banking, passport services, railways, and income tax are good examples of smart use of Internet-based cloud computing.
I have no hesitation to say that NIC has taken the judicial system and its processes casually. It is globally accepted that courts present a highly structured environment from the technology point of view. The processes are defined by laws and regulations and with constitutional parameters, requiring the ICT architecture to be strictly in conformity with the judicial standards. In India, our judicial processes are governed by two procedural codes enacted by Parliament. These Codes along with the practice and procedures laid down by the High Courts, if broken into systems and subsystems for development of an effective software, may add up to several hundred services. Additionally, any software solution developed for judicial processes should be capable of tracking and handling the delay drivers.
It was incumbent on the NIC that at the very threshold they should have documented the process mapping and the required process re-engineering adhering to the procedural laws and well-defined objectives. This was never done. Instead, ignoring all these requirements, they made out a list of haphazardly selected 52 services out of which they have been able to provide only eight, that too in a half-baked manner. It appears that they have comfortably taken benefit of ICT ignorance of both the administration and the users. As a result, the only sufferers are the taxpayers and the helpless litigants. The countrywide "Nyaya Yatras" taken out by the citizens for speedy justice and continuous "dharnas" held for eradication of corruption in subordinate courts have all fallen on deaf ears.
It is befuddling that despite lapse of more than 15 years and spending of hundreds of crores on technology upgradation in the Indian courts, litigants have not been provided an ICT environment as is available in many parts of the world. The sluggishness in implementation of the project makes one wonder if our efforts are but of cosmetic value to convince the litigants and public at large that "something is being done" to provide timely justice, or whether technology truly has the potential to remedy the needs of litigants crying for timely and hassle-free justice.
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20 F. No. 15018/3/2014-Jus-1I, Ministry of Law and Justice, Department of Justice, 4th August 2015
It is high time that a socio-economic audit of the outcome of these efforts is made in India in terms of timely justice, affordability and cost effectiveness. We should re-evaluate the policy with an open mind and seek alternatives for efficient and speedy implementation. In this regard experience of other ministries in the implementation of e-Governance projects may be of great value.
To my understanding, given the pattern of governance in India, the bureaucracy has a key role in making the policies and its implementation. Therefore a lot can be achieved if the Secretary, DOJ, plays an active role in properly instructing the Hon'ble Chief Justice of India and the Hon'ble Law Minister to make the e-courts project really fruitful on a private-public-partnership basis.
I believe that the ICT architecture designed by NIC requires a thorough revision to keep up with the latest innovations. More importantly, judicial independence can be maintained only if the judiciary is empowered to own, preserve and maintain the judicial data through its own manpower. This can be conveniently done by upgrading the existing computer rooms of some of the High Courts into judicial data centers and adopting the cloud computing technology. For connectivity, all the courts can be provided with Wi-Fi facilities. All the judges have already been provided with laptops. The court staff can very well work with "tablets" with Wi-Fi facility. The judicial software application can be hosted from the High Court data centers using distributed data technologies, which can be accessed and used by all the stakeholders including judges and the assisting staff across the entire judicial sector. This will relieve the subordinate courts of the hassles of maintaining computer rooms, LAN and also the software at local levels. This arrangement can make the use of technology a boon for enhancing judicial productivity and for providing timely justice to the citizens.
I am sure that if timely decisions are taken, we will start seeing desired transformation in our subordinate courts within a year. I am saying so because by and large all the judges in the country have been provided with laptops and the necessary training for using them. According to the NIC itself, at least 13,277 courts have been fully equipped with hardware and connectivity. Substantial amount has been spent on training of the functional court staff as well. Acceptance and use of technology is no more an issue in our judiciary. Therefore, if an appropriate, customized and user-friendly software is provided in the courts through cloud technology, the dream of judicial reform will soon become a reality.
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* Dr. Justice Bharuka is the Former Acting Chief Justice of the High Court of Karnataka and former Chairman, E-Committee, Supreme Court of India.