“I should like to be able to love my country and still love justice.”

– Albert Camus, French philosopher

Introduction

Justice lies at the heart of inclusive, representative, and accountable governance. It represents the central tenet of the rule of law that every society strives to achieve. The idea of justice has become so important to the global polity that the United Nations Sustainable Development Goals (SDG), in particular, SDG 16.3 implores

42 Technology and Analytics for Law and Justice all countries to ‘promote the rule of law at the national and international level and ensure equal access to justice for all’ by 2030. Despite the aspirational idea underlying SDG 16.3, a study conducted by Pathfinder’s Task Force on Justice found that approximately 5.1 billion people across the globe — two-thirds of the world population — lack meaningful access to justice. According to the United Nations Statistics Division Report 2018, SDG 16.3 recorded the slowest growth among all the goals and targets of the Sustainable Development Programme.

In India too, the situation is not very different. The staggering disparity in the high population per subordinate court-judge ratio, which currently stands at 50,000 citizens per judge, demonstrates that the ‘justice gap’ in our country is significant. The effects of this justice gap were felt more acutely during COVID- 19 as India faced massive challenges in providing access to justice to its huge populace. It made the task of achieving access to justice for citizens as set out in SDG 16.3 even more challenging since there was much uncertainty over the short and long-term impact of the pandemic. All institutions and actors responsible for justice delivery — be it the government, judiciary, police, prisons, or legal aid — struggled with addressing the justice gap. The onslaught of COVID-19 thus had a great impact on every sphere of governmental activity, in particular, access to justice. It compelled all branches of government to respond to the unprecedented crisis with extraordinary measures.

In the context of the judicial landscape, the Indian judiciary’s greatest challenge was striking a balance between the proper functioning of courts and the pub- lic health emergency caused by the pandemic. Indian courts quickly embraced technology and organised remote virtual hearings to resolve cases. To mitigate the impact of the pandemic on the administration of justice, several procedural reforms were implemented, including e-filings, exemption from filing sworn affidavits, and the extension of the limitation period. While the adoption of tech- nology and procedural measures staved off a total collapse of the judicial system, the pandemic highlighted the divide that plagues our legal environment.

Apart from exacerbating the long-standing crisis of an overflowing court docket, it exposed the beleaguered state of the Indian judicial system. The backlog of pending cases increased exponentially at all three levels of our judicial system

— the Supreme Court, high courts, and district courts. The establishment of virtual courts became a great impediment to access to justice for lawyers and litigants who could not afford to onboard a digital infrastructure.

This paper seeks to investigate the impact of measures taken to digitise India’s judiciary and allow the masses access to justice. First, this investigation would include a review of the nature and state of India’s judicial infrastructure and the legal fraternity in the days leading up to COVID-19 in terms of technology. Here, the authors will examine the technological changes introduced in India’s judiciary and the significance of these changes on the digital divide and access to justice.

Second, this paper will assess the impact of post-COVID-19 reforms imple- mented to digitise the Indian judicial system and critically evaluate them to understand why these reforms did not achieve the desired success. This was primarily because our judicial system was unprepared to go digital overnight. This stage would argue that the judicial reforms introduced were not mod- elled on a people-centric approach to access justice. Instead, they widened the already-existing digital divide and made the judiciary, less accountable and less democratic.

Following these developments, this paper will eventually propose solutions to bridge the digital divide affecting our judicial and legal environments following the principles that facilitate access to justice. For the sake of clarity, the authors would like to state that this paper will only discuss the concept of access to justice in the context of a digitised judicial system. It does not attempt to discuss how the principle of access to justice has evolved and been applied in other contexts that have no bearing on its meaning about judicial institutions.

Digitising Access to Justice: A Legal Context

Innovation in technology has profoundly revolutionised and re-engineered the functioning of the legal sector through the development of e-documentation, e-notices, e-courts, legal search engines, online methods of dispute resolution, and AI-based predictive analysis tools. The indubitable purpose of these developments is to make the task of rendering legal services more efficient, productive, and strategic. For instance, legal web search engines such as SCC Online, Westlaw and Manupatra, enable lawyers to pursue legal research by accessing an enormous pool of judgments delivered in India and other jurisdictions. Artificial Intelligence (AI) has been deployed to develop a predictive analysis programme in the US that could anticipate the outcome of US Supreme Court cases with 70 to 75 per cent accuracy. 2 A similar AI prototype named eLegPredict has been developed for the Indian context to anticipate the outcome of Indian Supreme Court cases. 3 While many of these developments may be focused on improving the delivery of legal services to those with the financial means to pay for them, very little attention has been paid to improving access to justice for ordinary citizens who face social, economic, and cultural challenges every day. To overcome these barriers faced by the socio-economically disadvantaged, it is essential and non-negotiable to guarantee access to justice for these groups.

Under the Indian Constitution, the right of access to justice is considered to be an integral facet of the right to equality and the right to life, guaranteed by Articles 14 and 21 of the Constitution. There is a long and unbroken chain of decisions, which has recognised the inviolability of this right as a constitutional imperative. 4 In Anita Kushwaha v. Pushap Sudan , 5 the Supreme Court fleshed out the meaning and content of the right of access to justice and ruled that it comprises four basic but essential parts:

These main aspects of access to justice serve as the foundation for an indepen- dent, transparent, accessible, accountable, and democratic judicial institution. These principles are regularly interpreted and applied by Indian courts to pro- tect litigants’ rights and administer justice in accordance with our constitutional goals.

In the context of COVID-19 and the concern over the physical functioning of courts, the Supreme Court stepped in to ensure access to justice by embracing technology and conducting digital hearings. Within a few days of India going into complete lockdown, the apex court issued a series of directives in the exercise of its powers under Article 142 of the Constitution - an extraordinary power - to tide over the crisis caused by the pandemic in administering justice.

According to the court, the adoption of technology was its ‘duty’ and not ‘discretion’ and it was imperative to do so in ‘furtherance of the commitment to the delivery of justice’. 6 The court’s endeavour to prevent the pandemic from widening the justice gap was therefore both speedy and commendable. India’s prompt implementation of digital hearings was in sync with its counterparts in other regions of the world 7 and the recommendations made by international bodies such as the Inter-American Commission on Human Rights, regarding the continued functioning of courts and the duty of judges to uphold the rule of law during the pandemic, is noted as follows:

The pandemic thus necessitated striking a balance between access to justice and the public health emergency by ensuring courts functioned and guaranteeing the right to life and health, of all stakeholders.

While the adoption of technology by our judicial institutions has transfor- mative potential in realising access to justice for all, especially in the context of COVID-19, the digitisation of our judicial system is more complex than can be imagined. The technological solutions implemented so far do not pro- mote access to justice for people or empower them in a manner that increases their agency. As Stephen Golub argues, ‘legal empowerment is necessary to give people the agency to make choices and assert their rights better by taking con- trol of their own lives’. 8

Some of the challenges in developing people-centric technology solutions are funding constraints, a lack of innovation, and limited resources. There is a lack of proper methodology for integrating empowerment and accessing technology, as well as the absence of data-driven monitoring of the impact of technology on people. Against this backdrop, the authors will now discuss the implementation of technology to digitise the judicial system before the pandemic, whether those changes had any impact on access to justice, and whether they resulted in better outcomes for stakeholders. This section will also discuss measures the Supreme Court could have taken before the pandemic to test the digitisation of our judicial system by adopting a system of virtual courts on a pilot and a limited basis.

Digitisation Reforms before COVID-19

We first begin with a brief summary of the digitisation reforms before the pan- demic hit the world.

(a) The e-Courts Project

The initial steps taken to integrate technology with our judicial systems such as the automatic process of preparing the cause list, digitisation of court orders and their publication on the internet did not further the access to justice. This limited use of technology did not contribute to democratising our courts by enhancing the interaction between people and the judicial process.

Hence, in 2005, the e-Courts Project was launched in a collaboration between the Indian Supreme Court and the Union Government under the ‘National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian Judiciary – 2005’. The object and purpose of the e-Courts Project was to make the judicial system more account- able and transparent by ‘providing speedy, qualitative and cost-effective justice, reducing harassment and corruption’ through Information and Communication Technology ( ICT ). 9

The most significant aspect of the e-Courts project was that the structural composition of the body responsible for its implementation was grounded in multi-sectorial participation. The project pooled resources from the higher and subordinate judiciary, which included judges of the Supreme Court and high courts, judicial magistrates, civil judges, administrative staff, the executive branch and ICT experts and advisors. The e-Courts project recognised that inclusive institutional participation, domain expertise and technical assistance are essen- tial for fostering innovation. The authors call this collaborative framework the ‘innovation equity’ where different institutional actors come together and make their respective contributions to the formation, development and progress of an initiative.

The e-Courts Project, thus, overcame one of the major criticisms levelled at the legal sector, which is that it lacks innovation because it is ‘inward looking’ and functions like a ‘guild-like’ system. This does not allow people from outside the profession to participate in its evolution and development. 10

However, the e-Courts Project had shortcomings as the innovation equity granted to it did not include the participation of civil society, which is the most important stakeholder for ensuring a people-centric judicial system. For the success of such institutions, we need to create an environment that supports innovation. To create conditions that push and propel innovation, there must be an all-en- compassing model. This model should utilise the convening power of the public sector, harness the innovative capacity of the private sector to increase its scale and impact, invite participation from civil society to introduce inclusive perspectives and get academicians on board to weave these strands together. 11

Given the lack of civil society participation in the formulation of the e-Courts Project, reforms that were capable of addressing the needs of the people, especially the socio-economically disadvantaged groups, could not be absorbed. Instead of following a rights-based and people-centric approach, the entire architecture of the e-Courts Project was evolved by merely looking at the procedural laws and rules prevalent in the country.

The formation of the initiative was based on a set of laws and rules that were inherently complex and difficult to comprehend. This made the e-Courts Project a typical top-down institution-based reform, despite being an ICT-based access- to-justice initiative.

In this context, the author will now discuss the reforms in the e-Courts Project initiated to alleviate the justice crises and its subsequent failure to achieve the desired results due to the absence of a people-centric and democratic approach to access to justice.

(b) ICT Reforms under the e-Courts Project

As generally understood, ICT-based initiatives include explanatory websites and mobile applications, instructive videos, legal search engines, and encyclopaedias. 12 They carry an inherent potential to facilitate access to justice that comports with its modern paradigm. Under the e-Courts Project, several ICT-based measures were introduced for the computerisation of district courts and subordinate courts and the upgrade of the infrastructure of the Supreme Court and high courts. One of these measures is the Case Information System for the district judiciary –- a software that digitally catalogues the details of a case including the case number, date of hearing, orders passed, and the daily cause list.

The CIS Software is interlinked with the national e-Courts website and mobile application from which the lawyers and litigants can directly access information about their cases. 13 Other measures implemented under the e-Courts Project include the National Judicial Data Grid for high courts and district courts, which consolidates data on pending and disposed of cases across the aforementioned courts. 14 The data on the National Judicial Data Grid is updated on a real-time day-to-day basis. 15 Data uploaded on the National Judicial Data Grid is used by the government for formulating policies about the judiciary. 16

Other measures include increasing (Wide Area Network) WAN Connectivity for courts across the country, ICT training and awareness programmes for judges and the administrative staff of the courts, JustIS Mobile App for judicial officers to effectively manage their caseload, and the installation of kiosks within the court premises to provide litigants with daily order sheets without approaching court officials. With the e-Courts Project entering its third phase, the progress of ICT-based initiatives in India’s courts appear to be a continuous process, as seen by the current computerisation, cloud computing, digitisation of case data, and the constantly expanding provision of e-Services. Given that India has over 19,000 district and subordinate courts, it is easy to understand why this is a complex task.

It is important to understand that ICT-based justice initiatives are modelled to bring our justice delivery system closer to people. ICTs, because of their general accessibility, show promise in democratising the typical top-down centralised state-building process 17 and building on a bottom-up approach to justice initia- tives. These initiatives include the ‘needs of civil society and local communities as beneficiaries of the justice system, which are the driving force behind the reform agenda’. 18 The initiatives are very successful in defeating geographical barriers faced in areas where conventional justice initiatives cannot be taken. Equally, ICTs can facilitate communication by their horizontal and vertical integration with various actors, who are part of the justice delivery system.

For instance, several districts in Telangana have established interoperability between the Case Information System and the Integrated Criminal Justice System which allows bipartite exchange and transmission of information between the court and the police. 19 This integration allows the police to share First Information Reports (FIR) and chargesheets with the courts and, in turn, the courts can share bail orders with the police on a real-time basis. This is a revolutionary step in the administration of the criminal justice system, which is otherwise a victim of inor- dinate delays, heavy corruption and oppressive bureaucracy. The interoperability platform also found judicial recognition from the Telangana High Court in K. Mathamma v. The State Of Telangana 20 judgement.

The digitisation of the judiciary through ICTs is a reasonable undertaking, but there are some inherent problems and challenges with the e-Courts Project, and they must be recognised and addressed. Union Law Minister Kiren Rijiju in Lok Sabha recently stated, “As of 28 March 2022, 4,09,85,490 cases were pending in district and subordinate courts. Meanwhile, 58,90,526 cases were pending in high courts.” This problem of an ever-exploding docket is not a recent phenomenon, but one that has paralysed our judicial system for decades. Given the pendency of cases, naturally, the most affected stakeholder group is the general populace. It is, therefore, imperative to measure the impact of ICT as part of the e-Courts Project and see how they have fared in delivering access to justice to our citizens.

The ICT-based justice initiative can be assessed against four broad parameters, some of which have evolved about the access to justice jurisprudence under the Indian Constitution. 21 The parameters are awareness, availability, accessibility, and affordability. The awareness element relates to the knowledge of the people about the use of ICT to enforce their rights. In this context, Phases I and II of the e-Courts project lacked a robust institutional structure that informs and educates people about their rights. Generally, interventions that allow people to be informed about the judgments and decisions of our constitutional courts on fundamental rights and freedoms are useful. For instance, the legal awareness pro- grammes implemented in the reconstruction of post-war Afghanistan after the fall of the Taliban included the publication of a gratis database of select, important, cases on the Afghanistan Supreme Court website. More importantly, the website was hosted in three languages — Dari, Farsi and English — to target a wider audience.

The second aspect, which is availability, deals with geographical proximity, infra- structural capacity and institutional data management of ICTs. The Subordinate Courts of India: A Report on Access to Justice 2016, says, ‘people residing in large and hilly states often have to undertake long and arduous journeys to reach courts’. 22 ICT-based justice initiatives implemented in Phase I and Phase II of the e-Courts Project focused on improving digital infrastructure without increas- ing the number of courts at the local level to mitigate geographical challenges. Therefore, the pre-existing problem of geographical barriers to justice was never addressed.

Availability of ICTs under the e-Courts Project is also hindered by poor tech- nical infrastructure including the lack of pan-India broadband connectivity. 23 As per the 2019 Report on the National Broadband Mission, the rural broadband connections are just 27 per cent. 24 The main reason for poor broadband con- nectivity in rural areas is lower infrastructural capacity and population density. Even the Objectives Accomplishment Report of the e-Courts Project: Phase II, acknowledges 25 that WAN connectivity has not been extended to all courts in the country.

The low broadband penetration in rural and remote areas results in digital exclusion and disables the courts from accessing available IT systems. 26 In view of the poor infrastructure and the resulting digital divide between urban and rural areas, it is difficult to envisage how the e-Courts Project could have successfully delivered access to justice to remote parts of the country.

The discrepancies in the data entered into the Case Information System Software 27 also indicates that without proper institutional conditions, long- term sustainability of ICT-based justice initiative may become a challenge. 28 The sampling data collected from the Case Management System revealed that several data entries such as data for final orders (approximately 70 per cent), values for date of filing, last date of hearing, and in some cases, the entire case history, were missing. 29 The data deficiency, therefore, retains the pre-digitisation status quo where litigants are not able to derive the full benefit of the ICT Systems. The root cause of incorrect data entry seems to be the absence of a comprehensive quality control system to regulate the entry and quality of data.

With a gigantic caseload burdening our judicial systems, there is no doubt that some aberrations are inevitable; however, it is imperative to have quality control conventions of sustainability. Although the Objectives Accomplishment Report as per Policy Action Plan Document: Phase II, notes that training programmes for change management are regularly conducted, there is no clarity on the nature of quality control training imparted to officers and staff. The test of accessibility to the justice system is a measure of the people’s ability to use ICT systems and enforce their rights. Therefore, the fundamental question that arises in such cases is whether access to justice by using technology is a remote possibility for those lacking digital literacy. 30 Is the digital divide preventing vulnerable sections from navigating the ICT systems?

The e-Courts Project did attempt to bridge the digital gap through mea- sures such as the publication of e-Court guidance manuals — in more than 14 languages — to help users navigate the e-Court services mobile application. However, this text-based ICT system also has its own shortcomings. There was no visual and speech software, which could have improved a user’s interaction with the website.

The website therefore catered to a small group of literate or partly literate groups. Similarly, the internet kiosks installed in court premises to enable seam- less transaction of business for lawyers and litigants is problematic because both lawyers and litigants often lack digital literacy. 31 Where problems of technical or digital literacy exist, a people-centric approach to access to justice advocates that ICT solutions have to be re-engineered and modulated in accordance with the cognitive and literacy levels of users. 32

(c) Digitisation of the Supreme Court before COVID-19

Before COVID-19, several measures were implemented to digitise the Supreme Court. For instance, e-filing of cases (2007), 33 the introduction of the Integrated Case Management Information System (ICMIS), dissemination of information to stakeholders, and issuing e-notices to advocates on record, litigants, and govern- ment departments. 34 Also, the development of Supreme Court Vidhik Anuvaad Software (SUVAS), an artificial intelligence software, translated Supreme Court judgements into nine languages. 35

On the awareness front, SUVAS is a commendable step in the direction of increasing legal literacy among citizens. It is one of the first pilot projects that kicked off the use of artificial intelligence in the judicial sphere. While the inten- tion behind SUVAS is well-received, as awareness programmes are one of its legal empowerment initiatives, its real outcome is unclear. One of the most fundamen- tal aspects of integrating technology with legal empowerment and access to justice is whether the product deploys a solution-based approach by improving outcomes for its users. 36 In this context, there are no field studies that measure SUVAS’ role in generating legal awareness. The availability of judgments in multiple languages does not automatically ensure that less literate or illiterate groups would be more likely to read as well as understand the translated judgments. It is often difficult for lawyers to gauge the true import and significance of judgments rendered by the Supreme Court.

Another notable initiative to digitise and create a paperless Supreme Court was the ICMIS. While inaugurating ICMIS in 2017, Hon’ble Chief Justice JS Khehar said that the system ‘will electronically pick up records from trial courts and high courts’ and the appeal will have to state the grounds for challenging the impugned judgement. 37 The project did not progress as planned and after going paperless for a few months on a pilot basis, the court resumed using phys- ical copies of files and petitions. 38 The push for the ICMIS e-filing was also met with resistance from various members of the bar, who believed that the system was not error-free 39 and demanded that manual filings continue.

(d) Article 32(3) and the geographical alienation of the Supreme Court

India is a large country and the world’s most populous nation which indicates that geographical proximity is a major hurdle in the access to justice. The Supreme Court observed that proximity to the court is a factor that contributes to the essence of access to justice. 40 The court held that distance as a factor not only affects accessibility to justice but also hampers affordability and timely adjudica- tion of justice.

The regional disparity concerning access to justice is also observed in the study conducted by the Vidhi Centre for Policy 41 which concluded that ‘the centralised structure of justice dispensation, by geographically locating, and limiting the Supreme Court to the national capital, has resulted in serious issues of accessibility for litigants who wish to approach the court for redressal’. Statistically speaking, the right to appeal, an inherent part of access to justice, has only been utilised by litigants from three high courts that are in close proximity to the apex court. 42

It is in this context that the authors would like to discuss the relevance of Article 32(3) 43 of the Constitution which empowers the Supreme Court to estab- lish a seat in other parts of the country to adjudicate upon matters within the powers of the court. The relevance of the provision to set up additional seats of power was foreseen by the makers of the Constitution.

The Vice-president of the Constituent Assembly, HC Mookerjee, stated that ‘the provision to delegate the powers of the Supreme Court, in certain cases to other courts, is a welcome move. It is a blessing for people from distant places such as Assam and Coorg who will find it extremely difficult to approach the Supreme Court, which is bound to be located somewhere in the United Provinces or Delhi’. 44 However, the Supreme Court even after being nudged by multiple representations 45 has fallen short of delivering access to justice to litigants residing in distant areas. The court has neither, in principle nor in practice, initiated any measure to bridge the geographical gap by invoking Article 32(3).

Digital courts, forms of video-conferencing, and online systems could have afforded an opportunity to the Supreme Court to bridge the geographical divide and ‘improve timely access to court proceedings’ 46 and ‘ameliorate the national dislocation between courts and the communities’ to at least fulfil the spirit of Article 32(3).

The Supreme Court could have, on a trial basis, set up virtual courts to adjudicate routine matters like matrimonial disputes, interlocutory applications, vacation of stay, domestic violence cases, and bail and interim bail matters, among others. However, virtual courts were never envisaged until the pandemic posed a serious threat to the dispensation of justice in our country. A pre-existing pilot project on these lines may have allowed the court to test the structural inequalities and socio-economic barriers people face in approaching the court. The project could have provided a foundation, and perhaps, helped fight the deleterious con- sequences of the pandemic on the justice system.

The above discussion and analysis reveal that ICT-based justice initiatives of the Supreme Court and e-Court’s Phase I and II did not act like a silver bullet to address the justice gap. On the other hand, they exposed the infirmities of the system in providing access to justice to the vulnerable population as well as the vast digital divide that had already engulfed our judicial institutions, lawyers and ordinary citizens, even before the onset of the pandemic. In this context, it becomes important to turn our focus on the digitisation measures implemented after the pandemic, particularly digital hearings, and highlight the scale of their adoption.

Digitisation reforms after COVID-19

(a) Digital Hearings

The advent of the novel Coronavirus was the biggest challenge for the Indian judi- cial system in its role of administration of justice. The social distancing norms to prevent the spread of the virus required that access to courts, which are populated by judges, lawyers, and litigants, is regulated to minimise physical interaction. As a result, our judicial institutions had to formulate rules and procedures, which balanced the access to justice with the countervailing demands of a public health emergency. To maintain this balance, detailed standard operating procedures were issued by the Supreme Court, 47 high courts 48 and district court for filing, listing, mentioning, and hearing of cases.

In the context of digital hearings, 1,43,626 cases were heard by the Supreme Court along with a footfall of 12,01,443 participants through video conferenc- ing between March 2020 and September 2021. This feat was accomplished by 6,484 benches, which disposed of 34,515 cases during the above-mentioned period.

The transition from physical to virtual hearings was not seamless, but it was other stakeholders such as lawyers and litigants lacking access to internet connectivity and requisite infrastructure, who felt the actual tremors of the digital divide and the justice gap. As noted by the 103rd report on the functioning of virtual courts, 49 this digital divide has three aspects — access divide (lack of infra- structure), connectivity divide (lack of broadband connectivity) and skill divide (lack of technical literacy). These aspects were more prevalent in rural areas. This deep-rooted digital inequality was echoed by various stakeholders ranging from the bar council to the Chief Justice of India. 50 Their primary concern was the inability of lawyers to change in accordance with the digital wave, which robbed them of their livelihood, as well as denied access to justice to litigants in rural and tribal areas of the country.

This inability arises from the large pay gap between the earnings of advocates in the legal profession as evidenced by a survey conducted by the Vidhi Centre for Legal Policy. 51 The pay scale, extremely low in semi-urban and rural areas, renders the technological change ushered by the judiciary, expensive to lawyers. It goes against the principles of the right to access justice if the judicial system expects low-income lawyers to equip themselves with the required digital infrastructure and technical know-how. This results in a scenario wherein litigation as a profes- sion is dominated by a group of economically privileged advocates who have the required access to digital tools. The resultant rift between advocates was evidenced by the submission made to the Supreme Court by two groups of lawyers, one seeking the continuation of a hybrid court system, and the other for the resump- tion of physical courts. 52

The digital divide was exacerbated by the infrastructural deficit at the insti- tutional level, which proved to be more cumbersome at the lower levels of the judiciary where both courts and lawyers were not equipped to function virtually. 53 The preliminary findings conducted by the office of the Chief Justice of India (CJI) 54 with regard to the functioning of the trial courts, draw our attention to the alarming picture of inadequate technical infrastructure, in the subordinate courts. The findings state that only 27 per cent of these courtrooms have a com- puter on the judge’s dais, while 10 per cent do not have the minimum required internet access to function virtually. Poor digital connectivity paves the way for a plethora of problems ranging from audio/video disruptions to loss of broadband connections.

In a study conducted in the UK, a survey found that 44.7 per cent of the respondents experienced technical glitches during the course of digital hearings and perceived that physical appearance in courts offers better participation than digital hearings. 55 Recently, the CJI expressed his displeasure at the new digital hearing software of the Supreme Court. 56 In the above context, the connectivity divide strikes at the very root of a fair and effective adjudicatory mechanism, an important aspect of access to justice. The fair and effective adjudicatory mecha- nism encapsulates an inextricable relationship between access to justice and public participation 57 and mandates that the adjudicatory mechanism must facilitate the full and effective participation of the parties in legal proceedings.

In the context of digitisation, this relationship entails that ‘technologies must be built and deployed ethically to enhance, rather than compromise, user partic- ipation in courts, while simultaneously upholding fundamental legal principles such as fairness, impartiality and access to justice’. 58 Therefore, a study of the type and quality of digital hearings is imperative in understanding how existing struc- tural inequalities and power imbalances affect access to justice and substantive outcomes in digital justice projects. However, no such study has been conducted on this front in the Indian context and it is recommended that ICT-based justice initiatives are developed keeping in mind the virtual court experiences of lawyers and litigants.

(b) FASTER — Fast and Secured Transmission of Electronic Records

After coming across several instances relating to the non-release of prisoners despite the grant of bail under the orders of the Supreme Court, suo moto pro- ceedings were initiated by the court under Article 32 of the Constitution for creating a mechanism, which swiftly transmits the bail orders of the court to the concerned authority. 59 Known as FASTER, this software has been developed in collaboration between the Supreme Court Registry and the National Informatics Centre. FASTER has a transformative potential for the criminal justice system and due process, and the rights of undertrial prisoners in the country. While the project is thoughtful, its implementation is likely to be hindered by factors such as internet penetration in rural areas.

A review of the post-pandemic measures taken to digitise judicial institutions demonstrates that the ICT-based justice initiatives have theoretically immense potential to advance access to justice. However, the success of these models can be ensured only when their development is done in the context of specific institu- tional and societal conditions.

Possible Solutions for the Future

In a report published by Engine Room, 60 it was emphasised that in developing technology solutions it is critical to take into account the feedback of people who are interacting with the technology. This broad formulation of the solutions we propose to offer would allow us to focus on the needs of the people, the context in which those needs are experienced, and what measures can be taken to address those needs. 61 In pith and substance, the solutions would be outcome-based, consistent with the principles of access to justice and would cater to the needs of the people.

As indicated by the Supreme Court e-committee model rules, 62 the post- pandemic future of the judiciary shall be a hybrid of physical and virtual courts. The implementation of this hybrid model must not be at the cost of exclusion of those stakeholders who do not have the same level of access to technology and digital infrastructure. As yet, there is no concrete evidence to prove that virtual courts are successful.

Although some scholars suggest that a forum is irrelevant as long as there is a fair and democratic process, their findings might not be directly applicable in the Indian context.

As the first step in bridging the digital divide, the authors recommend a judicial census be made part of the national census conducted under the Census Act, 1948. The questionnaire of the judicial census should be devel- oped on the basis of a slightly modified version of SDG Indicator Metadata 16.3.3, which collects data on the number of persons who have experienced a dispute over the past two years, and accessed a formal dispute resolution, by type of mechanism.

The modified indicator would collect data on the number of people who expe- rienced a dispute over two years but could not secure access to courts because of technological constraints. The advantages enjoyed through the implementation of the indicator are that they are people-oriented. It gives a metric of the problems from the perspective of the people who faced them and can be easily incorporated into national censuses in the future.

Based on the data collected and the categorisation under the heads of geog- raphy, income, and identity distinctions — collaborative and innovative mod- els of the scale required can be developed — in accordance with the specific needs of each categorisation. Suitable amendments will have to be made to the Census Act 1948 through parliamentary intervention. The poor state of digital infrastructure was a major reason for the failure of the implementation of tech- nological changes in the judiciary. The sudden decision to go virtual resulted in the exclusion of areas from the judicial process, which had inadequate digital infrastructure.

As noted by former Chief Justice of India NV Ramana, adequate judicial infrastructure is critical to addressing the massive backlog of cases in the judi- ciary and providing timely access to justice. As a result, establishing a National Judicial Infrastructure Corporation (NJIC) is critical. The NJIC, which can include the CJI, SC judges and Chief Justices of High Courts, and finance secretaries from both the centre and the states, will act as a coordinating agency in lowering bureaucratic barriers. Its intended purpose would be to monitor and respond to logistical issues. It could also serve as a point of contact for various ongoing government schemes and missions, bringing them under the purview of the judicial system. Timely coordination with the National Broadband Mission, which envisages universal access to broadband services, would equip the judicial infrastructure with much-needed internet connectivity 63 . The NJIC should also support civil society participation — both in the form of eminent members who have expertise in law, technology, infrastructure, and economy — and direct participation of ordinary citizens. Participation can be made possible through public hearings and/or invitations of objections/suggestions on policy proposals of the NJIC. Of course, the establishment of the NJIC would require dedication of financial and manpower resources, but this is a non-negotiable cost in securing access to justice for all.

Apart from making institutional and societal changes as discussed above, there is also an emerging need to revamp the curriculum in law schools, by incorpo- rating the rapid and transformative changes occurring in the digital space, into our legal education. For this, it is crucial to incorporate an ICT perspective in the learning experience of our students, which can be achieved by creating platforms that permit greater interaction between law students and professionals from other domains. This pedagogy is completely absent from our current legal teaching which is traditionally dominated by discussions strictly about law and no other fields.

Some inspiration in this regard can be drawn from the ‘Privacy Legislation in Practice: Law and Technology’ course taught jointly by faculty from the Massachusetts Institute of Technology (MIT) and Georgetown University Law School. The course involves a weekly joint interaction between law students from Georgetown University and engineering students at MIT to discuss emerging technologies and their impact. The course encourages students to approach prob- lems from a multidisciplinary perspective and present policy solutions, which can serve as actionable inputs for government actors.

These solutions are not meant to be a one-stop-shop for all the problems that arose in relation to the digitisation of the judicial framework that dispenses jus- tice. It only provides a few milestones in a long journey that our institutions must cross before they can harness the true potential of digital technology for the benefit of people.

Conclusion

The biggest accusation against the legal profession is that it remains averse to change. This is evident from the delayed implementation of the vision laid out in the e-Courts Project to digitise the Indian judicial institutions. It was only the onset of COVID-19 that generated a widespread debate and push for digitisation of the judiciary. The judicial system managed to go virtual, but as discussed in this paper, the under-prepared transition came at the cost of alienating justice seekers. The transition placed the entire burden of adjusting to the new institutional setup on the most vulnerable and marginalised sections of society.

While the situation was distressful and unfortunate, the judiciary has reacted constructively to suggestions made by various stakeholders in rebooting the institutional design that makes it consonant with a people-centric approach to access to justice. This is reflected in the vision and roadmap for Phase III of the e-Courts Project which enables data-based decision-making for building a digital judiciary and creating conditions, that are predictable and transparent for end beneficiaries in the food chain of justice. More details on this, with some remarks to put this vision into perspective and practice, will be found in the last chapter of this volume.

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