Access to justice: India leads post-Covid shift in courts’ use of technology
With the legal world now accustomed to hybrid working, many justice systems face a critical decision on remote technology in court systems. They must choose whether to keep developing the use of such technology or to shift back towards something more physical. Some jurisdictions are more advanced than others, while some have barriers to entry which others do not. Some may still resist further moves towards an ever-greater reliance on technology.
India has moved faster than most when it comes to e-filing, live-streaming and hearings being held wholly remotely. In a speech in July, Indian Supreme Court Justice D Y Chandrachud revealed that 19.2 million cases had been heard virtually in the High Court of India and district courts by the end of April – with 17.8 million cases disposed of. These include a large number of smaller cases such as traffic offences and contractual disputes, as well as more significant matters.
Perhaps one reason why India is ahead of the pack is that the extensive use of technology in its court system is far from new. ‘The Supreme Court of India [SCI] had first permitted witness depositions using technology as back as the year 2003. Eventually, remote justice was allowed through the introduction of video conferencing rules in 2020’, explains Neerav Merchant, Regional Representative Asia General for the IBA Litigation Committee and a partner at Majmudar & Partners in Mumbai.
In 2020 the SCI passed an order that gave validity to court hearings held by video conferencing, and in the summer of 2021 the e-Committee of the SCI released draft model rules for the live-streaming and recording of court proceedings, which went out to public consultation. ‘There’s so much activity happening all around India’, says Anurag Bana, Senior Project Lawyer for the IBA’s Legal Policy & Research Unit, who adds that an Indian parliamentary standing committee also released a report on the functioning of virtual courts and video conferencing court proceedings.
Merchant says that from a practical perspective, the move to a greater use of technology has been a success in India. ‘The establishment of the e-court systems have greatly subserved the speedy disposal of pending cases in court dockets. The robust technological infrastructure has improved case management, as well as scheduling, and listing of the matters. Conducting client meetings and conferences with individuals and companies in India as well as abroad has been seamless’, he says.
If we’re going to go to this remote or hybrid world, how do we reasonably ensure that rural and disadvantaged populations are going to be able to participate?
Senior Counsel, Dentons
Although many of these developments were already in train, the pandemic has without a doubt accelerated India’s move to remote courts. ‘While the rules for remote hearings were predominantly for the accused to attend the hearing from prison, the [Covid-19] pandemic changed the idea of remote hearings; the parties and their counsels could attend the proceedings from different places’, Merchant says.
The imminent elevation of Justice Chandrachud to the role of Chief Justice of India will ensure there’s no let-up in the acceleration of the use of technology, says Bana. He adds that Justice Chandrachud is ‘very tech savvy, tech friendly, he’s all about apps and software’.
This top-down leadership of the shift to remote justice in India, and similarly in other jurisdictions such as Brazil, is not reflected everywhere. In the US, there is not yet universal adoption of e-filing or virtual hearings, for example. Ronald Hedges, a senior counsel at Dentons in New York and Chair of the American Bar Association’s JD Court Technology Committee, says there’s a ‘pretty robust’ capability in federal courts to file documents electronically and to participate in proceedings over video, but at state court level there is much more variation.
At present, remote justice in the US is governed more by case law rather than by codified guidance or rules. ‘We are starting to see case law […] about whether or not there were due process violations because people were not present in person, or where a conviction was vacated in a state court because someone was testifying with a mask on’, Hedges says. He adds that some judges are happier dealing with issues remotely than others, and federal judges obviously have more resources available than a state judge.
The key challenge for widening access to remote justice in any jurisdiction remains resource. Technology needs to be robust and available, and therefore funded. In large commercial cases this might not be an issue, but in civil and criminal cases, ensuring all parties have access to the same systems is much more difficult. In September the Madras High Court in India rejected a plea to introduce e-filing and virtual hearings in a regional tribunal as it was not equipped with the necessary infrastructure.
‘If we’re going to go to this remote or hybrid world, how do we reasonably ensure that rural and disadvantaged populations are going to be able to participate?’ says Hedges. ‘That’s the big stumbling block that we have in the US. If you don’t have secure internet service, it’s pretty hard to participate in a virtual proceeding.’
Merchant adds that while live-streaming cases in India is increasingly common, ‘there are several concerns from a moral and ethical standpoint’. While a matter is sub judice, he explains, live-streaming a case may result in judicial bias, for example due to there being a public smear campaign running against the accused. ‘Further, incorrect decisions or predisposed judgements may tarnish the reputation of the accused until proved otherwise’, he says. ‘These concerns may act as barriers for rolling out remote justice across the country.’
These questions and challenges may be unanswered for now, but they will not go away. ‘Online courts are there to stay and they will certainly continue. It will happen in all jurisdictions, it’s something which is now more acceptable’, Bana says.
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