The promise and perils of digital justice delivery

Context:

Draft Rules released by the Supreme Court e-Committee on live-streaming and recording court proceedings are a part of the National Policy and Action Plan for implementation of Information and Communication Technology (ICT) in the judiciary.

Relevance:

GS-II: Polity and Governance (Judiciary, Initiatives for Transparency in Governance, Judiciary)

Mains Questions:

In the context of e-Courts project, can technology be used to revolutionise India’s courts? Critically examine the feasibility of e-Courts Project. (15 marks)

Dimensions of the Article:

1. Background regarding Live Streaming of Court Proceedings
2. e-Courts Project

1. Need for e-Courts project: Delay in Justice
2. Draft Rules for Live-Streaming Court Proceedings
3. About the Current Phase-III of e-Courts project
4. A cause for concern

Background regarding Live Streaming of Court Proceedings

• All the Courts have been functioning through video conferencing throughout the Covid-19 lockdown in 2020.
• In 2020, the Gujarat High Court became the first Court to live stream judicial proceedings on YouTube channel.
• Advocates, the parties, victims, corpses etc. all are participating in the court proceedings during the course of the hearing through video conferencing.
• The Supreme Court in Swapnil Tripathi v Supreme Court of India (2018) has ruled in favour of opening up the apex court through live-streaming.
• It held that the live streaming proceedings is part of the right to access justice under Article 21 of the Constitution. However, the judgment has remained unimplemented.

Benefits

• A live stream would help litigants follow the proceedings in their case and also assess their lawyers’ performance. People from far-flung States such as Tamil Nadu and Kerala do not have to travel all the way to the national capital for a day’s hearing.
• It would keep a check on lawyers’ conduct inside the courtrooms. With the entire country watching them, there would be fewer interruptions, raised voices and adjournments from the lawyers.
• Live-streaming will bring transparency and access to justice.

Drawbacks

• Live streaming of the Courts is susceptible to abuses and it can involve national security concerns and can amount to a violation of the fundamental right to privacy in matrimonial disputes and rape cases.
• The unauthorised reproduction of the live streaming videos is another cause for concern as its regulation will be very difficult at the government’s end.
• Concerns have also been raised about the commercial aspect of the whole issue. The agreements with broadcasters should be on a non-commercial basis. No one should profit from the arrangement.
• Infrastructure, especially internet connectivity is also the biggest challenge in implementing the live proceedings of Courts.

e-Courts Project

• The e-Courts project was conceptualized on the basis of the “National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary – 2005” submitted by e-Committee, Supreme Court of India with a vision to transform the Indian Judiciary by ICT enablement of Courts.
• The e-Courts Mission Mode Project, is a Pan-India Project, monitored and funded by the Ministry of Law and Justice for the District Courts across the country.
• The main aim of the project is to provide efficient & time-bound citizen-centric services delivery as detailed in e-Court Project Litigant’s Charter and also enhance judicial productivity, both qualitatively & quantitatively, to make the justice delivery system affordable, accessible, cost-effective, predictable, reliable and transparent.

Need for e-Courts project: Delay in Justice

As per the National Judicial Data Grid:

1. Around 17% of all cases in district and Taluka Courts are three to 5 years old;
2. More than 20% of all cases in High Courts are 5-10 years old, and over 17% are 10-20 years old.
3. Over 66,000 cases are pending before the Supreme Court
4. Over 57 lakh cases are pending before various HCs
5. Over 3 crore cases are pending before various District and Subordinate courts

Draft Rules for Live-Streaming Court Proceedings

• The Supreme Court has released the Draft Model Rules for Live-Streaming and Recording of Court Proceedings     recently in 2021,     as a part of the National Policy and Action Plan for implementation of Information and Communication Technology (ICT) in the judiciary.
• The Rules would cover live-streaming and recording of proceedings in High Courts, lower courts and tribunals.
• According to the new rules proceedings in high courts can be telecast except for cases relating to matrimonial disputes, gender-based violence, those involving minors and “cases, which in the opinion of the Bench, may provoke enmity amongst communities likely to result in a breach of law and order”.
• The final decision as to whether or not to allow the Live-streaming of the Proceedings or any portion thereof will be of the Bench, however, the decision of the Bench will be guided by the principle of an open and transparent judicial process.
• The rules allow for objections to be filed against live streaming in specific cases at the stage of filing of the case or at a later stage and they also allow for archiving of court proceedings for six months.
• The rules also prohibit recording or sharing the telecast on media platforms, including social media and messaging platforms, unless authorised by the court.

About the Current Phase-III of e-Courts project

• The e-Committee of the Supreme Court of India recently released its draft vision document for Phase III of the e-Courts project. Phases I and II had dealt with digitisation of the judiciary, i.e., e-filing, tracking cases online, uploading judgments online, etc.
• Even though the job is not complete, particularly at the lower levels of the judiciary, the project can so far be termed a success. This has been particularly so during the COVID-19 pandemic, when physical courts were forced to shut down.
• Phase III of the e-Courts project goes on to propose an “ecosystem approach” to justice delivery. It suggests a “seamless exchange of information” between various branches of the State, such as between the judiciary, the police and the prison systems through the Interoperable Criminal Justice System (ICJS).
• It has been pointed out by organisations such as the Criminal Justice and Police Accountability Project that the ICJS will likely exacerbate existing class and caste inequalities that characterise the police and prison system.
• This is because the exercise of data creation happens at local police stations, which have historically contributed to the criminalisation of entire communities through colonial-era laws such as the Criminal Tribes Act of 1871, by labelling such communities as “habitual offenders”. This is of particular concern since the data collected, shared and collated through the e-Courts project will be housed within the Home Ministry under the ICJS.

A cause for concern

• When data collection is combined with extensive data sharing and data storage it becomes a cause for concern -The Supreme Court must take care not to violate the privacy standards that it set in Puttaswamy v. Union of India (2017), especially since India does not yet have a data protection regime.
• There has been a dangerous trend towards creating a 360-degree profile of each person by integrating all of their interactions with government agencies into a unified database.
• This approach has been perfected by social media platforms and technology companies, and the government is now trying to do the same. The difference is that when technology companies do this, we get targeted advertising, but if the government does it, we get targeted surveillance.
• It has been argued that no clear explanation has been offered for why the Home Ministry needs access to court data that may have absolutely no relation to criminal law. Experts say that this process serves no purpose other than profiling and surveillance.

-Source: The Hindu