[msumphil2006] E-JUDICIARY IN INDIA: SOME SUGGESTIONS
Electronic judiciary in India (E-judiciary in India) is no more a science fiction though much has still to be done to make it a practical and operational reality. Electronic justice in India (E-justice in India) has already found its existence to some extent and that is reasonably enough for a good beginning. The use of Information and Communication Technology (ICT) for judicial purposes has its own advantages. The major among them is the reduction of backlog of cases, decreased costs, increased efficiency, etc. At the same time ignorance of ICT will also come with its costs for the judiciary in India. The judicial system can collapse if it fails to adopt and transform itself as per the requirements of ICT in India. It would be a good idea to train the fresh judges at the entry level and provide e-learning and classroom training to the existing and otherwise competent judicial force in India.
I. Introduction
Indian judiciary is known for its impartiality, independence and justice oriented approach. However, new frontiers are challenging its capabilities and way of functioning. Though the judiciary has tried to inculcate appropriate skills to tackle the challenges of ICT yet not much has been achieved.[1] The seriousness of this situation has not yet been realised by the otherwise capable, potent and dynamic judicial system. The first duty of a court is to do justice. If the "rule of law" has been declared to be a "basic feature" of the Constitution, which cannot be taken away even by exercising the constitutional power of amendment, then "rule of justice" is definitely above it and deserves the status of the basic feature of the constitution. This is so because the concept of justice is wider and is of greater importance than the rule of law because:
(1) The express incorporation of Article 142 in the Constitution of India assures this guarantee. The Supreme Court in exercise of its jurisdiction can pass such decree or make such order as is necessary "for doing complete justice" in any cause or matter pending before it. For instance, the Supreme Court can extend the benefit of its judgment to a case not in appeal.[2] In D.D.A v. Skipper Construction Co (P) Ltd[3] the Supreme Court observed that it is advisable to leave this power undefined and uncatalogued, so that it remains elastic enough, to be moulded to suit the given situation.
(2) There may not be any law governing any particular situation, but the justice may require taking of an immediate and inevitable action.
(3) There may be a law, which does not satisfy the present demands and requirements of the society at large.
(4) The mandates of morality require taking of an action, which is normally not taken.
(5) The concept of justice, equity and good conscience may be applicable in a given situation where the law has left a vacuum or is not addressing the problem in hand in an appropriate manner.
Thus, the courts in India to do complete justice invoke the concept of "rule of justice". This does not mean that one can ignore the concept of rule of law. It must be appreciated that both rule of law and rule of justice must go hand in hand to make the justice system just, fair and reasonable. In today's world we cannot afford to say that "justice must not only be done but it must also be seemed to be done". The concept of justice requires that:
(1) it must firstly be done in a just, fair and reasonable manner,
(2) it must be seemed to be done, and
(3) it must be "felt" to be done.
Thus, unless this third element of "felt to be done" is satisfied, the concept of justice is not complete because this third element is the most important component of justice delivery system. The public at large in India has a great faith in Indian judiciary and this third element is absolutely essential to maintain and preserve that faith and confidence. A court of law cannot render justice unless the ultimate decision is based on the contemporary law as prevailing in the society. A decision based on an old law, which does not satisfy the requirements of the present situation, and environment should be avoided. In such a situation the efforts of the courts should be to give the law a "purposive, updating and an ongoing interpretation". This position makes the interface of justice delivery system with the information technology inevitable and unavoidable. We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly keep on adapting itself to the fast changing society and not lag behind.[4] Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. The greatest virtue of the law is its flexibility and its adaptability; it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day. Thus, the justice delivery system cannot afford to take the information technology revolution lightly. The need of the hour is not only to provide a holistic ICT training to the judges, lawyers and law students but also to actively support and apply the same in the day to day functioning of the Courts, Tribunals and other quasi-judicial institutions.[5]
II. Judiciary and the ICT gap
The increasing backlog of cases is posing a big threat to our judicial system. The same was even more in the early 90 but due to the computerisation process in the Supreme Court and other courts that was reduced to a great extent. However, the backlog is still alarming. This is because mere computerisation of Courts or other Constitutional offices will not make much difference. What we need is a will and desire to use the same for speedy disposal of various assignments. There is a lack of training among Judges regarding use of Information Technology (IT). We need a sound training of Judges first before we wish to capatilise the benefits of IT. A good initiative has already been taken by the Supreme Court of India. However, the same appears to be dormant for the time being. Thus, we need a public initiative as well. The resource titled "Electronic Courts in India" is making a database of different situations that the Courts may face while discharging the judicial functions.[6] As far as the computerisation is concerned, the Judges of all courts in Delhi have their own computers that are as per the latest configurations. However, the need of the hour is greater than mere computers providing. For instance, there was a proposal in the Delhi High Court where every computer of the concerned Judges was to be connected to the Central computer. Thus, whenever something is typed it would automatically go to the central computer and from there we can have the "Certified copies" of the concerned documents. That proposal has been applied to a greater extent and now it is much easier to get the certified copies. Further, cause lists, name of the Judges, Court numbers, name of the lawyers, etc are all available on the Internet. That has also facilitated the speedier disposal of cases. However, we need more. We need a complete utilisation of ICT for the effective disposal of cases and witness protection. For instance we can use the facility of "Video Conferencing" on a large scale. Presently, it is used in some cases. We can use the concept of electronic governance for Witness protection. We can use the medium of Internet for filing of cases, bail applications, serving of notices, etc. These are some of the issues that are above mere computerisation. With the present pace, it may take at least 10 more years to be adopted. If we all take some pain and provide our own contributions that that task may be achieved within 1 year. Then another concern is regarding the security of the ICT infrastructure. We can provide the concerned officer with the necessary training but it is very difficult to make them technically aware about the security aspects. Thus, a technological base must also be established at the Court that may provide the security inputs to the Courts. A special attention must be paid to the Cyber Forensics aspect. It is useful for the Investigative, Prosecution and the judicial authorities.
The real problem is not the functioning/management part but the procedural part. The procedural laws like Code of Criminal Procedure, 1973, Code of Civil Procedure, 1908, Indian Evidence Act, 1872 are too cumbersome that lot of precious years of parties are wasted. At this point we can use the ICT to speed up and streamline the judicial system. The first step is to lay down a foundation for e-governance and then we must effectively use the ICT for the betterment of Indian Judicial system. We have to cover a long distance yet because mere computerisation will not serve any purpose. If we have to succeed we have to learn to digitise papers and provide free and easy access to the litigants and other players involved with the system. We must learn how to establish a base for electronic filing, how to use e-mails and chatting systems for serving notices, summons and warrants and how to get the presence of the crucial witnesses through video-conferencing, etc. The safest bet is for the witness who can be sufficiently protected from the retaliatory tactics of the offenders by an active use of ICT base. Let us hope that these initiatives will be adopted very soon.[7] Alternatively, we have to use the tool of purposive, updating and creative interpretation that is a potential and effective tool in the hands of the judiciary.
III. Witness protection and whistleblowing
The role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity. The government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play. Though on the face of it the decision may look legitimate but as a matter of fact the reasons may not be based on values but to achieve popular accolade that decision cannot be allowed to operate. The primary responsibilities for bringing such affairs before the courts lie with the whistleblowers. This process, however, has its own perils and deleterious effects. Thus, the life and limb of these whistleblowers should be duly protected. The traditional methods of protection of these whistleblowers though are effective but are not free from risks and lacunas. The use of information technology, particularly a sound e-governance base, can safeguard the interest of justice in the most benign manner. The whistleblowers are protected, as they are not exposed to the retaliatory tactics of the persons exposed by them. At the same time valuable evidences are also made available to the courts to do complete justice. The use of video- conferencing and web-meetings can solve most of the problems associated with the evidence giving. The whistleblowers can be testified by using these technological devices that are readily available at the disposal of the courts. It is no bravery to expose the crucial witnesses and whistleblowers to the risks of retaliatory tactics adopted by hard-core criminals. The prudent judicial system should maintain a balance between the interest of justice on the one hand and the interest of the whistleblowers on the other. A crucial witness or a whistleblower need not to be taken to the court premises if a sound e-governance base are in vogue. The time, money, efforts and resources consumed in bringing the whistleblowers is on a much higher footing as compared to the use of e-governance for the same. The evidence of these whistleblowers can be recorded and its recorded version can be transmitted to the court along with a copy of the same. The evidence so recorded is of durable nature and can prevent the miscarriage of justice. Thus, the maintaining of e-record is also important in maintaining an apposite judicial system and for meeting the ends of justice. For instance, if the records of the proceedings are destroyed due to natural calamities and their reconstruction is not possible, then the court has no other option but to acquit the accused. An electronic record is not only durable but can be easily stored as well. It must be noted that in majority of cases the witnesses do not come forward to give evidence and many important pieces of evidences are lost forever. This results in acquittal of the accused and a miscarriage of justice. If the identity of the witnesses is concealed and their evidence has been obtained by the use of e-governance, then justice can be administered in its most judicious manner. A sound judicial system requires proper evidencing and the same is a risky affair on all counts. This is not a case of dissatisfaction with either the justice administration system or the law enforcement system but the natural and human tendency that must be recognised and accepted. The courts must stress on obtaining as much evidence as possible. The same can be done by primarily relying upon a sound e-governance base, though traditional methods of evidencing can be also be used to supplement it. Thus, the future of whistleblowing is very bright in India, as the "electronic justice delivery system" has already found a place in the Indian legal system.[8]
IV. Conclusion
I. Introduction
Indian judiciary is known for its impartiality, independence and justice oriented approach. However, new frontiers are challenging its capabilities and way of functioning. Though the judiciary has tried to inculcate appropriate skills to tackle the challenges of ICT yet not much has been achieved.[1] The seriousness of this situation has not yet been realised by the otherwise capable, potent and dynamic judicial system. The first duty of a court is to do justice. If the "rule of law" has been declared to be a "basic feature" of the Constitution, which cannot be taken away even by exercising the constitutional power of amendment, then "rule of justice" is definitely above it and deserves the status of the basic feature of the constitution. This is so because the concept of justice is wider and is of greater importance than the rule of law because:
(1) The express incorporation of Article 142 in the Constitution of India assures this guarantee. The Supreme Court in exercise of its jurisdiction can pass such decree or make such order as is necessary "for doing complete justice" in any cause or matter pending before it. For instance, the Supreme Court can extend the benefit of its judgment to a case not in appeal.[2] In D.D.A v. Skipper Construction Co (P) Ltd[3] the Supreme Court observed that it is advisable to leave this power undefined and uncatalogued, so that it remains elastic enough, to be moulded to suit the given situation.
(2) There may not be any law governing any particular situation, but the justice may require taking of an immediate and inevitable action.
(3) There may be a law, which does not satisfy the present demands and requirements of the society at large.
(4) The mandates of morality require taking of an action, which is normally not taken.
(5) The concept of justice, equity and good conscience may be applicable in a given situation where the law has left a vacuum or is not addressing the problem in hand in an appropriate manner.
Thus, the courts in India to do complete justice invoke the concept of "rule of justice". This does not mean that one can ignore the concept of rule of law. It must be appreciated that both rule of law and rule of justice must go hand in hand to make the justice system just, fair and reasonable. In today's world we cannot afford to say that "justice must not only be done but it must also be seemed to be done". The concept of justice requires that:
(1) it must firstly be done in a just, fair and reasonable manner,
(2) it must be seemed to be done, and
(3) it must be "felt" to be done.
Thus, unless this third element of "felt to be done" is satisfied, the concept of justice is not complete because this third element is the most important component of justice delivery system. The public at large in India has a great faith in Indian judiciary and this third element is absolutely essential to maintain and preserve that faith and confidence. A court of law cannot render justice unless the ultimate decision is based on the contemporary law as prevailing in the society. A decision based on an old law, which does not satisfy the requirements of the present situation, and environment should be avoided. In such a situation the efforts of the courts should be to give the law a "purposive, updating and an ongoing interpretation"
II. Judiciary and the ICT gap
The increasing backlog of cases is posing a big threat to our judicial system. The same was even more in the early 90 but due to the computerisation process in the Supreme Court and other courts that was reduced to a great extent. However, the backlog is still alarming. This is because mere computerisation of Courts or other Constitutional offices will not make much difference. What we need is a will and desire to use the same for speedy disposal of various assignments. There is a lack of training among Judges regarding use of Information Technology (IT). We need a sound training of Judges first before we wish to capatilise the benefits of IT. A good initiative has already been taken by the Supreme Court of India. However, the same appears to be dormant for the time being. Thus, we need a public initiative as well. The resource titled "Electronic Courts in India" is making a database of different situations that the Courts may face while discharging the judicial functions.[6] As far as the computerisation is concerned, the Judges of all courts in Delhi have their own computers that are as per the latest configurations. However, the need of the hour is greater than mere computers providing. For instance, there was a proposal in the Delhi High Court where every computer of the concerned Judges was to be connected to the Central computer. Thus, whenever something is typed it would automatically go to the central computer and from there we can have the "Certified copies" of the concerned documents. That proposal has been applied to a greater extent and now it is much easier to get the certified copies. Further, cause lists, name of the Judges, Court numbers, name of the lawyers, etc are all available on the Internet. That has also facilitated the speedier disposal of cases. However, we need more. We need a complete utilisation of ICT for the effective disposal of cases and witness protection. For instance we can use the facility of "Video Conferencing" on a large scale. Presently, it is used in some cases. We can use the concept of electronic governance for Witness protection. We can use the medium of Internet for filing of cases, bail applications, serving of notices, etc. These are some of the issues that are above mere computerisation. With the present pace, it may take at least 10 more years to be adopted. If we all take some pain and provide our own contributions that that task may be achieved within 1 year. Then another concern is regarding the security of the ICT infrastructure. We can provide the concerned officer with the necessary training but it is very difficult to make them technically aware about the security aspects. Thus, a technological base must also be established at the Court that may provide the security inputs to the Courts. A special attention must be paid to the Cyber Forensics aspect. It is useful for the Investigative, Prosecution and the judicial authorities.
The real problem is not the functioning/
III. Witness protection and whistleblowing
The role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity. The government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play. Though on the face of it the decision may look legitimate but as a matter of fact the reasons may not be based on values but to achieve popular accolade that decision cannot be allowed to operate. The primary responsibilities for bringing such affairs before the courts lie with the whistleblowers. This process, however, has its own perils and deleterious effects. Thus, the life and limb of these whistleblowers should be duly protected. The traditional methods of protection of these whistleblowers though are effective but are not free from risks and lacunas. The use of information technology, particularly a sound e-governance base, can safeguard the interest of justice in the most benign manner. The whistleblowers are protected, as they are not exposed to the retaliatory tactics of the persons exposed by them. At the same time valuable evidences are also made available to the courts to do complete justice. The use of video- conferencing and web-meetings can solve most of the problems associated with the evidence giving. The whistleblowers can be testified by using these technological devices that are readily available at the disposal of the courts. It is no bravery to expose the crucial witnesses and whistleblowers to the risks of retaliatory tactics adopted by hard-core criminals. The prudent judicial system should maintain a balance between the interest of justice on the one hand and the interest of the whistleblowers on the other. A crucial witness or a whistleblower need not to be taken to the court premises if a sound e-governance base are in vogue. The time, money, efforts and resources consumed in bringing the whistleblowers is on a much higher footing as compared to the use of e-governance for the same. The evidence of these whistleblowers can be recorded and its recorded version can be transmitted to the court along with a copy of the same. The evidence so recorded is of durable nature and can prevent the miscarriage of justice. Thus, the maintaining of e-record is also important in maintaining an apposite judicial system and for meeting the ends of justice. For instance, if the records of the proceedings are destroyed due to natural calamities and their reconstruction is not possible, then the court has no other option but to acquit the accused. An electronic record is not only durable but can be easily stored as well. It must be noted that in majority of cases the witnesses do not come forward to give evidence and many important pieces of evidences are lost forever. This results in acquittal of the accused and a miscarriage of justice. If the identity of the witnesses is concealed and their evidence has been obtained by the use of e-governance, then justice can be administered in its most judicious manner. A sound judicial system requires proper evidencing and the same is a risky affair on all counts. This is not a case of dissatisfaction with either the justice administration system or the law enforcement system but the natural and human tendency that must be recognised and accepted. The courts must stress on obtaining as much evidence as possible. The same can be done by primarily relying upon a sound e-governance base, though traditional methods of evidencing can be also be used to supplement it. Thus, the future of whistleblowing is very bright in India, as the "electronic justice delivery system" has already found a place in the Indian legal system.[8]
IV. Conclusion
The advent of information technology has changed the mode of working of almost all the spheres of the life. The justice delivery system has also been benefited by this technological revolution. The "E-justice system" has already found its existence in India.[9] However, the same requires rejuvenation keeping in mind the contemporary needs and standards. We must concentrate on the "futuristic aspect" of the use of ICT for justice administration.[10] We have to test various standards and policies over a period of time to make them compatible with the Indian socio-economic realities. We have to learn to live in a digital environment as well as in future most of the dealing will be taken care of by the online environment. The standards set by foreign countries, particularly developed nations, must not be followed blindly rather they must be tested on the touch stone of "Indianised environment" before applying the same. The "common sense" seems to be the best choosing criteria. It would be in the interest of Indian judicial system that a sound and effective ICT training must be imparted to the Judges, Lawyers, professionals and students. The concept of e-learning in India has already taken a shape and it is proceeding in the right direction.[11] E-learning can provide valuable inputs and training to the crucial members of judicial system in India. The means to achieve the same are there and we have to wait for the will to learn and apply these much needed skills.[12]
© Praveen Dalal. All rights reserved with the author.
* Arbitrator, Consultant and Advocate, Supreme Court of India.
Managing Partner-Perry4law (Legal Firm)
Ph.D Cyber Forensics (Pursuing).
Contact at: perry4law@yahoo.com , pd37@rediffmail.com
[1] B.S.Dalal, " Judicial reforms in India: An ICT perspective", http://bsdalal.blogspot.com/2006/09/judicial-reforms-in-india-ict.html
[2] Manganese Ore v. Chande, AIR 1991 SC 520.
[3] AIR 1996 SC 2005.
[4] Justice Bhagwati in National Textile Worker's Union v. P.R.Ramakrishnan, (1983) 1 SCC 228, at p. 256.
[5] B.S.Dalal, " Judicial reforms in India: An ICT perspective", http://bsdalal.blogspot.com/2006/09/judicial-reforms-in-india-ict.html
[6] http://indian-judiciary.blogspot.com/
[7] Praveen Dalal," ICT strategy in India: The need of rejuvenation", http://cyberlawindia.blogspot.com/2006/07/ict-strategy-in-india-need-of.html
[8] Praveen Dalal, "Witness protection and e-governance", http://cyberlawindia.blogspot.com/2006/03/witness-protection-and-e-governance.html
[9] Praveen Dalal, " Electronic governance and justice in India", http://indian-judiciary.blogspot.com/2006/01/electronic-governance-and-justice-in.html
[10] Praveen Dalal, " ICT strategy in India: The need of rejuvenation", http://cyberlawindia.blogspot.com/2006/07/ict-strategy-in-india-need-of.html
[11] Praveen Dalal, " E-learning in India", http://cyberlawindia.blogspot.com/2006/09/e-learning-in-india.html
[12] B.S.Dalal, " Judicial reforms in India: An ICT perspective", http://bsdalal.blogspot.com/2006/09/judicial-reforms-in-india-ict.html
© Praveen Dalal. All rights reserved with the author.
* Arbitrator, Consultant and Advocate, Supreme Court of India.
Managing Partner-Perry4law (Legal Firm)
Ph.D Cyber Forensics (Pursuing).
Contact at: perry4law@yahoo.
[1] B.S.Dalal, " Judicial reforms in India: An ICT perspective"
[2] Manganese Ore v. Chande, AIR 1991 SC 520.
[3] AIR 1996 SC 2005.
[4] Justice Bhagwati in National Textile Worker's Union v. P.R.Ramakrishnan, (1983) 1 SCC 228, at p. 256.
[5] B.S.Dalal, " Judicial reforms in India: An ICT perspective"
[6] http://indian-
[7] Praveen Dalal," ICT strategy in India: The need of rejuvenation"
[8] Praveen Dalal, "Witness protection and e-governance"
[9] Praveen Dalal, " Electronic governance and justice in India", http://indian-
[10] Praveen Dalal, " ICT strategy in India: The need of rejuvenation"
[11] Praveen Dalal, " E-learning in India", http://cyberlawindi
[12] B.S.Dalal, " Judicial reforms in India: An ICT perspective"
Change settings via the Web (Yahoo! ID required)
Change settings via email: Switch delivery to Daily Digest Switch format to Traditional
Visit Your Group Yahoo! Groups Terms of Use Unsubscribe
SPONSORED LINKS
.
__,_._,___
posted by Arulselvan @ Tuesday, October 24, 2006
links to this post
Links to this post:
Create a Link
<< Home